Prosecutors Must Reveal Toxicologist Identities in DUI Trials.

In State v. Salgado-Mendoza, the WA Court of Appeals Division II reversed a defendant’s DUI conviction because the Prosecutor failed to give Defense Counsel the name of their Toxicologist expert witness before trial.

On the evening of August 11, 2012, a Washington State Patrol trooper observed Mr. Salgado-Mendoza driving his vehicle and struggling to stay in his lane of travel. The trooper stopped the vehicle. Salgado-Mendoza was investigated and arrested for DUI. His BAC test showed a blood alcohol concentration of 0.103 and 0.104; which is over the .o8 limit.

Several months before his trial date on the DUI charge, Salgado-Mendoza requested that the Prosecutor disclose information about any and all expert witnesses the Prosecutor intended to call at trial. This regularly happens when defense attorneys argue motions to compel. The Prosecutor attempted to contact the toxicology lab by phone to narrow the list of possible toxicology witnesses, but was unsuccessful.

Three days before trial, Salgado-Mendoza filed a motion requesting that the court dismiss the case or exclude the toxicologist’s evidence based on governmental misconduct.

On the afternoon before trial, the State received a list of three toxicologists, one of whom might testify the next day. The State provided this list to Salgado-Mendoza.

When the parties appeared for trial on May 9, Salgado-Mendoza re-argued his motion to exclude the toxicologist’s testimony or to dismiss the DUI charge because the State had still not disclosed which toxicologist would testify. The Court denied the motion. Salgado-Mendoza was found guilty at trial.

Salgado-Mendoza appealed his conviction to the superior court. Finding that the district court had abused its discretion by (1) not excluding the toxicologist’s testimony due to the State’s violation of the discovery rules and mismanagement of the case in failing to disclose its witness prior to trial, and (2) excluding the defense expert’s testimony about the breath-alcohol testing machine, the superior court reversed the DUI conviction and remanded the matter for a new trial. The State appealed to the WA Court of Appeals.

Ultimately, the WA Court of Appeals held that the Prosecutor violated the discovery rules under CrRLJ 4.7(d) by failing to take reasonable steps to obtain the name of its witness in a timely manner. It reasoned that the Prosecutor had an obligation to attempt to acquire and then disclose that information from the toxicology lab. Consequently, the Prosecutor’s failure to provide the defense with a specific witness’s name before trial is not reasonable. This, in turn, amounted to governmental misconduct under CrRLJ 8.3(b).

Furthermore, the Court held that Prosecutor’s misconduct was prejudicial and that the exclusion of the toxicologist’s testimony was the proper remedy. The Court emphasized this remedy was necessary because the issue was an issue of public importance:

“On retrial, the State should ensure that it provides the name and address of the person or persons it intends to call at trial or comply with CrRLJ 4.7(d) when preparing for the new trial.”

My opinion? Good decision. It is extremely difficult to provide a competent and adequate defense when Prosecutors do not follow the rules of discovery.

For those who don’t know, a Prosecutor must follow many procedures when trying cases. The following procedures expedite a fair trial and protect the constitutional rights of the defendant: (i) promote a fair and expeditious disposition of the charges, whether by diversion, plea, or trial; (ii) provide the defendant with sufficient information to make an informed plea; (iii) permit thorough preparation for trial and minimize surprise at trial; (iv) reduce interruptions and complications during trial and avoid unnecessary and repetitious trials by identifying and resolving prior to trial any procedural, collateral, or constitutional issues; (v) minimize the procedural and substantive inequities among similarly situated defendants; (vi) effect economies in time, money, judicial resources, and professional skills by minimizing paperwork, avoiding repetitious assertions of issues, and reducing the number of separate hearing; and (vii) minimize the burden upon victims and witnesses.

Here, knowing the names of the Prosecutor’s witnesses before trial is simply fair. Period.