RULES OF COURT
|IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CrRLJ 6.13-EVIDENCE||)
Now, therefore, it is hereby
(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
Suggested Change to CrRLJ 6.13 (EVIDENCE)
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.
(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:
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:
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)
Custodian of Records
Place: Olympia, Washington
(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.