WSR 02-15-007

RULES OF COURT

STATE SUPREME COURT


[ July 2, 2002 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CrRLJ 6.13 AND IRLJ 6.6 )

)

)

 ORDER

NO. 25700-A-744

     The Washington Association of Prosecuting Attorneys having recommended the adoption of the proposed amendments to CrRLJ 6.13 and IRLJ 6.6, and the Court having considered the proposed amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

     Now, therefore, it is hereby

     ORDERED:

     (a) That the amendments as attached hereto are adopted.

     (b) That the amendments will be published in the Washington Reports and will become effective September 1, 2002.

     DATED at Olympia, Washington this 2nd day of July 2002.
     Alexander, C. J.
     Smith, J.

      Ireland, J.
     Johnson, J.

      Bridge, J.
     Madsen, J.

      Chambers, J.
     Sanders, J.

      Owens, J.


CrRLJ 6.13 EVIDENCE

     (a) Rules of Evidence. The Rules of Evidence are applicable to criminal prosecutions.

     (b) Test Reports by Experts.

     (1) Generally. The official written report of an expert witness which contains the results of any test of a substance or object which are relevant to an issue in a trial shall be admitted in evidence without further proof or foundation as prima facie evidence of the facts stated in the report if the report bears the following certification:


TEST CERTIFICATION


     The undersigned certifies under penalty of perjury that:

     1. I performed the test on the (substance) (object) in question;

     2. The person from whom I received the (substance) (object) in question is: ____________________;

     3. The document on which this certificate appears or to which it is attached is a true and complete copy of my official report; and

     4. Such document is a report of the results of a test which report and test were made by the undersigned who has the following qualifications and experience ____________________________________________________________________________________________________.


_______________________________

Signature

_______________________________

Title

_______________________________

Business Address and Phone


     (2) Exclusion of Test Reports. The court shall exclude test reports otherwise admissible under section (b) if:

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

     (iii) at least 7 days prior to the trial date, or, upon a showing of cause, such lesser time as the court deems proper, the defendant has delivered or mailed a written demand upon the prosecuting authority to produce the expert witness at the trial.

     (c) Breathalyzer Maintenance, Simulator Thermometer, BAC Verifier, and Simulator Solution Certificates.

     (1) Admission of Certificate. In the absence of a request to produce a Breathalyzer maintenance technician, a BAC Verifier Data Master infrared instrument technician, or the person responsible for preparing or testing simulator solutions made at least 7 days prior to trial or such lesser time as the court deems proper, certificates substantially in the following forms are admissible in lieu of a state expert witness in any court proceeding held pursuant to RCW 46.61.506 for the purpose of determining whether a person was operating or in actual physical control of a motor vehicle while under the influence of intoxicating liquors:


BREATHALYZER MAINTENANCE AND CHEMICAL CERTIFICATION

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

     I am a Breathalyzer technician possessing a valid permit or certificate issued to me by the state toxicologist by virtue of his rules, WAC 448-12 and RCW 46.61.506.

     On ____________ (date) at __________ (time) I examined, tested and calibrated a Breathalyzer machine with serial No. _______ using a sealed ampul of chemicals with control No. _______ according to the methods established and approved by the state toxicologist.

     I further certify that said machine was, on that date, in proper working order, and that the chemicals in ampuls with the above control number are suitable for use in this machine.

_______________________

Signature of Technician

Dated: ________________


BAC VERIFIER DATA MASTER CERTIFICATION


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

     I am employed by ____________ and am certified by the state toxicologist by virtue of applicable regulations and statutes.

     On _________ (date) at _______ (time) I examined, tested and certified a BAC Verifier Data Master instrument with serial No. __________ according to the methods established and approved by the state toxicologist. I further certify that said instrument was, on that date, in proper working order.


________________________

Signature of Technician

Dated: ______________


BAC VERIFIER DATA MASTER SIMULATOR SOLUTION CERTIFICATION


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

     I am employed by the Washington State Toxicology Laboratory, and a part of my responsibilities include preparing and testing the simulator solutions for the BAC Verifier Data Master breath test instrument. I possess the following qualifications: ___________________________________________________________________.

     The simulator solution, Lot Number _______ was prepared in the Washington State Toxicology Laboratory. I examined and tested this solution. It was found to conform to those standards established by the state toxicologist for the certification of simulator solution.


Dated: _________________


_________________________

Signature


BAC DATAMASTER SIMULATOR THERMOMETER CERTIFICATION


     I, ___________, do certify under penalty of perjury under the laws of the State of Washington that the following is true and correct:

     I am employed by the Washington State Patrol and am certified as a Technician by the state toxicologist by virtue of applicable regulations and statutes.

     On ____(date) at ___(time) I tested and certified simulator thermometer __________ (serial number) which is installed in simulator _________(serial number) and which is attached to BAC Data Master _______ (serial number). In performing the test I employed a protocol approved by the state toxicologist. I found the thermometer to comply with the standards for accuracy as required by the state toxicologist. The certification of this thermometer is valid for one year from the date of this certification.


___________________________

Signature of Technician

Dated: _________________

Location:___________(city and state)


     (2) Machine Not Working Properly -- Certificate of Technician. If the technician determines that a Breathalyzer machine or a BAC Verifier Data Master instrument is not in proper working order at the time of examination, the technician shall delete the last paragraph from the appropriate certificate form set forth in section (c)(1) of this rule and shall certify substantially in the following form:

     I further certify that said machine was not in proper working order on ___ (date) at _______M.

     I further certify that I repaired or corrected said machine as required on ___ (date) and as of that date at _______M. said machine was again in proper working order (and that the chemicals in ampuls with the above control number are suitable for use in this machine.) (Cross out bracketed language if not applicable.)


Dated: _______________


_______________________

Technician


     (3) Filing of Certificates by Clerk. The clerk of each court of limited jurisdiction shall maintain the certificates as a public record.

     (d) Speed Measuring Device: Design and Construction Certification.

     (1) Admission of Certificate. In the absence of proof of a request to produce an electronic or laser speed measuring device (SMD) expert served on the prosecuting authority and filed with the clerk of the court at least 30 days prior to trial or such lesser time as the court deems proper, a certificate substantially in the following form is admissible in lieu of an expert witness in any court proceeding in which the design and construction of an electronic or laser speed measuring device (SMD) is an issue:


CERTIFICATION CONCERNING DESIGN AND CONSTRUCTION OF ELECTRONIC SPEED MEASURING DEVICES AND LASER SPEED MEASURING DEVICES


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

     I am employed with______ +as a ______________. I have been employed in such a capacity for __ years and hold the rank of _____________. Part of my duties include supervising the purchase, maintenance((,)) and repair of all electronic and laser speed measuring devices (SMDs) used by -- -- -- -- -- -- -(name of agency) my agency.

     This agency currently uses the following SMDs: (List all SMDs used and their manufacturers and identify which SMDs use laser technology.)

     I have the following qualifications with respect to the above stated SMDs:

     (List all degrees held and any special schooling regarding the SMDs listed above.)

     This Our agency maintains manuals for all of the above stated SMDs. I am personally familiar with those manuals and how each of the SMDs are designed and operated. All initial On ________ (date), testing of the SMDs was performed under my direction. The units were evaluated to meet or exceed existing performance standards. Our This agency maintains a testing and certification program. This program requires:

     (State the program in detail.)

     Based upon my education, training, and experience and my knowledge of the SMDs listed above, it is my opinion that each of these electronic pieces of equipment is so designed and constructed as to accurately employ the Doppler effect in such a manner that it will give accurate measurements of the speed of motor vehicles when properly calibrated and operated by a trained operator or, in the case of the laser SMDs, each of these pieces of equipment is so designed and constructed as to accurately employ measurement techniques based on the velocity of light in such a manner that it will give accurate measurements of the speed of motor vehicles when properly calibrated and operated by a trained operator.


_________________________

Signature

Dated: _________________


     (e) 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 technicians 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. 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.


IRLJ 6.6 SPEED MEASURING DEVICE: DESIGN AND CONSTRUCTION CERTIFICATION


     (a) In General. This rule applies only to contested hearings in traffic infraction cases.

     (b) Speed Measuring Device Certificate; Form. In the absence of proof of a request to produce an electronic or laser speed measuring device (SMD) expert served on the prosecuting authority and filed with the clerk of the court at least 30 days prior to trial or such lesser time as the court deems proper, a certificate in substantially the following form is admissible in lieu of an expert witness in any court proceeding in which the design and construction of an electronic or laser speed measuring device (SMD) is an issue:


CERTIFICATION CONCERNING DESIGN AND CONSTRUCTION OF ELECTRONIC SPEED MEASURING DEVICES OR LASER SPEED MEASURING DEVICES

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

     I am employed with _________ as a ___________. I have been employed in such a capacity for _____ years and hold the rank of ________________. Part of my duties include supervising the purchase, maintenance, and repair of all electronic and laser speed measuring devices (SMD's) used by -- -- -- -- -- -- -- -- -(name of agency) my agency.

     This agency currently uses the following SMD's:

     (List all SMD's used and their manufacturers and identify which SMDs use laser technology.).

     I have the following qualifications with respect to the above stated SMD's:

     (List all degrees held and any special schooling regarding the SMD's listed above.)

     Our This agency maintains manuals for all of the above stated SMD's.

     I am personally familiar with those manuals and how each of the SMD's are designed and operated. All initial On ________ (date), testing of the SMD's was performed under my direction. The units were evaluated to meet or exceed existing performance standards. This Our agency maintains a testing and certification program. This program requires:

(State the program in detail.)


     Based upon my education, training, and experience and my knowledge of the SMD's listed above, it is my opinion that each of these electronic pieces of equipment is so designed and constructed as to accurately employ the Doppler effect in such a manner that it will give accurate measurements of the speed of motor vehicles when properly calibrated and operated by a trained operator or, in the case of the laser SMDs, each of these pieces of equipment is so designed and constructed as to accurately employ measurement techniques based on the velocity of light in such a manner that it will give accurate measurements of the speed of motor vehicles when properly calibrated and operated by a trained operator.

___________________________________

(Signature)


Dated: ____________________________


     (c) Continuance. The court at the time of the formal hearing shall hear testimony concerning the infraction and, if necessary, may continue the proceedings for the purpose of obtaining evidence concerning an electronic speed measuring device and the certification thereof. If, at the time it is supplied, the evidence is insufficient, a motion to suppress the readings of such device shall be granted.

     (d) Maintaining Certificates as Public Records. Any certificate, affidavit or foundational evidentiary document allowed or required by this rule can be filed with the court and maintained by the court as a public record. The records will be available for inspection by the public. Copies will be provided on request. The court may charge any allowable copying fees. The records are available without a formal request for discovery. The court is entitled to take judicial notice of the fact that the document has been filed with the court. Evidence will not be suppressed merely because there is not a representative of the prosecuting authority present who actually offers the document. Evidence shall be suppressed pursuant to subsection (c) of this rule if the evidence in the certificate, affidavit or document is insufficient, or if it has not been filed as required.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

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