WSR 11-01-020

RULES OF COURT

STATE SUPREME COURT


[ December 2, 2010 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CrRLJ 6.13-EVIDENCE )

)

)

ORDER

NO. 25700-A-971


The Department of Licensing having recommended the adoption of the proposed amendments to CrRLJ 6.13-Evidence, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Courts' websites in January, 2011.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2011. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 2nd day of December, 2010.
For the Court

Madsen, C.J.

CHIEF JUSTICE


GR 9 Cover Sheet


Suggested Change to CrRLJ 6.13 (EVIDENCE)



(C) Purpose: The suggested changes to CrRLJ 6.13 result from the U.S. Supreme Court's recent decision in Melendez-Diaz v. Massachusetts, decided June 25, 2009 (__US__, 129 S.Ct. 2527; a copy of the decision is enclosed.) In Melendez-Diaz, the Court expanded its holding in Crawford v. Washington, 541 US 36 (2004) and held that lab test reports prepared for the purposes of trial are testimonial and admission of them violate a defendant's right of confrontation. The Court further held that "notice-and-demand" statutes are constitutional. In jurisdictions with "notice and demand" procedures, the prosecuting authority provides notice to the defendant of its intent to use a report as evidence at trial. The defendant then has a period of time to object and demand that the analyst appear live and testify. If the defendant does not object, the witness does not need to appear and testify; instead, the certified report is admissible.

Melendez-Diaz has broad application in trial courts and impacts the system most greatly in Driving While License Suspended (DWLS) cases. In State v. Kirkpatrick, 160 Wn. 2d 873 (2007), the Washington Supreme Court ruled that the Department of Licensing (DOL) custodian of records declarations accompanying a driving record were not testimonial. The Melendez-Diaz case calls into question the Kirkpatrick analysis and conclusion. The suggested rule change will better allow the trial courts to manage their trial calendars and administer justice by adding a "notice and demand" procedure to CrRLJ 6.13 to govern the admissibility of certified reports from DOL custodians of record.


Suggested Change to CrRLJ 6.13 EVIDENCE


[(a) - (d) No changes.]

(e) Certified Report of Department of Licensing Custodian

(1) Generally. A certified report from a Department of Licensing (DOL) custodian of records pertaining to a defendant's driving record(s) and a defendant's driving status on a particular date is admissible at any hearing or trial in lieu of testimony of a DOL custodian of records. The certified report shall have the same effect as if the records custodian had testified, if the report is in substantial compliance with the following certification:


CERTIFICATE OF DEPARTMENT OF LICENSING CUSTODIAN OF RECORD


I, _____________ do certify under penalty of perjury as follows:

I have been appointed by the Director of the Department of Licensing as a legal custodian of driving records of the State of Washington. I certify under penalty of perjury that such records are official and are maintained in the office of the Department of Licensing, Olympia, Washington.

All information contained in this report pertains to the driving record of:

Lic. # Birthdate:
Name: Eyes: Sex
Hgt: Wgt:
License Issued:
License Expires:

After a diligent search of the computer files, the official record indicates that on ______________ (date), the following statements apply to the status of the above named person:

The attached document(s) are a true and accurate copy of the document(s) maintained in the office of the Department of Licensing, Olympia, Washington.

(specify all documents attached to this affidavit)

Dated: ______________________

_______________________________

(name)

Custodian of Records

Place: Olympia, Washington

Date: _______________

(2) Exclusion of Test Reports: The court shall exclude the Certificate of Department of Licensing Custodian otherwise admissible under this section if:

(i) a copy of the certificate has not been served or mailed to the defendant's lawyer, if represented, at least 14 days prior to the trial or hearing date, or upon a showing of cause, such lesser time as the court deems proper, or

(ii) in the case of an unrepresented defendant, a copy of this rule in addition to a copy of the certificate has not been served or mailed to the defendant at least 14 days prior to the trial or hearing date or, upon a showing of cause, such lesser time as the court deems proper;

(iii) at least 7 days prior to the trial or hearing date, or, upon a showing of cause, such lesser time as the court deems proper, the defendant has served or mailed a written demand upon the prosecuting authority to produce a custodian of records from the Department of Licensing for trial or hearing.

(f) Continuance. The court at the time of trial shall hear testimony concerning the alleged offense and, if necessary, may continue the proceedings for the purpose of obtaining (1) the maintenance technician's presence for testimony concerning the working order of the Breathalyzer machine and the certification thereof, (2) evidence concerning the working order of the BAC Verifier Data Master instrument and the certification thereof, (3) evidence concerning the preparation of the BAC Verifier Data Master simulator solution and the certification thereof, or (4) evidence concerning an electronic speed measuring device or laser speed measuring device and the certification thereof, or (5) evidence concerning the certified report of the Department of Licensing. If, at the time it is supplied, the evidence is insufficient, a motion to suppress the results of such test or readings shall be granted.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

Washington State Code Reviser's Office