King County Prosecuting Attorney Criminal Division District Court Unit
CONFIDENTIAL - FOR POLICE AGENCY USE ONLY
DECLINE
October 25, 2012 TO: Officer: Detective Marken #1270, Marysville Criminal Investigation Unit Trooper J. Leonard #651 Police Agency: WSP, Snohomish County ERIN S. NORGAARD Seattle Division W554 King County Courthouse 516 Third Ave Seattle, Washington 98104 R. R Citation# 512PA5156 Date ofVio: 29 August 2012
FM:
RE: Defendant: T
Charges: Driving While Under the Influence
Thank you for your report. However, we are declining this case because the facts are insufficient to prove this charge beyond a reasonable doubt. Facts: At 9:20p.m. on August 29, 2012, T R was stopped for several lane travel violations that are well-documented in the trooper's report and in the in-car video. Specifically, the vehicle crossed out of its lane with both tires and maintained that position for approximately 50 feet before correcting. The vehicle later crossed over the lane line two more times, and at one point accelerated to 55 mph (40 mph speed limit). The vehicle made a slow, unsignaled lane change and was slow to react to the trooper's lights. Upon contact with the vehicle, the driver identified himself as "Judge R ." The trooper then immediately recognized the defendant as a Snohomish County District Court judge whom he had appeared before on multiple occasions. The trooper smelled alcohol on Judge R breath, saw that Judge R eyes were bloodshot and watery, and noticed that his speech was slurred and choppy at times. The trooper is familiar with Judge R speech, having appeared before him in court on many occasions, and noted that Judge R speech did not sound normal. When asked, Judge R admitted to having "one beer with Judge Fisher," another Snohomish County District Court judge. Judge R declined to take the field sobriety tests. Judge R recently had hip replacement surgery and would likely testify that that was the reason why he declined the tests. The trooper arrested Judge R and requested a second trooper to come to the scene. The second trooper arrived a short time later and corroborated the observations of the
arresting trooper. Judge R was transported to the station and offered the BAC test. Judge R refused to take the BAC test and was later driven home by the arresting trooper. During the subsequent investigation, Detective Marken interviewed Judge Roger Fisher. Judge Fisher told detective Marken that he, Judge R , and their wives had dinner and drinks at the Mill Creek Country Club the evening of Judge R arrest. Judge Fisher said that they arrived at the club around 6:00p.m. and left around 9:00p.m. During that 3-hour period of time, Judge Fisher said that Judge R had two glasses of wine. Judge Fisher said that Judge R was not at all impaired when they left. Analysis: To prove the DUI charge in this case, the State must have sufficient admissible evidence to prove beyond a reasonable doubt that Judge R drove his vehicle while under the influence of alcohol. Here, we can prove that Judge R consumed alcohol prior to driving his vehicle, but we lack sufficient admissible evidence to prove beyond a reasonable doubt that his alcohol consumption impaired his ability to drive. Although we have evidence of poor driving and other indicia of alcohol consumption (e.g., odor, eyes, speech), that evidence is insufficient to prove impairment beyond a reasonable doubt. We have no field sobriety tests or other divided attention tests to gauge the level of impairment of Judge R ability to drive. We also have no BAC test to show impairment. Although the BAC refusal would be admissible to show consciousness of guilt, that, alone, is insufficient to overcome the other evidence that tends to negate impairment, most significantly, the anticipated testimony of Judge Fisher. Judge Fisher will testify that Judge R had two glasses of wine over a 3-hour period. 1 Based on that amount, the toxicologist will testify that Judge R likely BAC, with bum-off, was about 0.03. Although Judge R lied to the trooper about the type and quantity of alcohol he consumed, the amount of alcohol that he did consume (i.e., 2 glasses of wine) is still insufficient to prove impairment under the circumstances in this case. Given all of the admissible evidence in this case, and given the likely defenses that could be raised at trial, it is unlikely that a reasonable jury would convict Judge R of DUI. I am therefore declining to file criminal charges at this time. If you have any additional information that you would like me to consider, of if you wish to discuss this further, please feel free to give me a call. Thank you for your work in this case!
nnNorgaard Senior Deputy Prosecuting Attorney King County Prosecutor's Office Chair, District Court Unit 206-296-9543
Detective Marken obtained the receipts for all of transactions on Judge Fisher's club account on 8/~9/12. There are three separate receipts, one from 12:14 p.m., one from 5:15p.m., and one from 6:12p.m., all of which show alcohol purchases. Apparently, the receipt from 6:12 is the receipt for the dinner with Judge R . Per the club staff, the earlier receipts are for unrelated events.
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