I have previously written at great length how a person can be charged with a Washington DUI when there is minimal evidence of impairment or when their breath or blood test was below the legal limit.  Over the past decade I have spent defending DUI cases, I have represented dozens of people charged with DUI whose alcohol test was well below the legal limit.  They must incur the substantive financial and emotional burden of going through the court process to ensure their DUI charge does not resolve as a conviction.

In Washington, a person has the statutory right to refuse certain tests (including field sobriety tests and breath or blood test), but that refusal can be used against the driver to demonstrate "consciousness of guilt."  In addition, if a person refuses a breath or blood test, they face harsher consequences both with the administrative hearing process and with criminal penalties.  As such, even if a person refuses everything- from the field tests to the breath test at the station- while the government might not have much physical evidence to prove guilt, they will still ultimately charge the driver with DUI.  I do not recall one instance where the King County Prosecutor's office has ever declined filing a DUI case when the accused refused everything.  But like everything in life, there is always the first.......

King County Prosecutor declines to file charge for Snohomish County Judge Arrested for DUI

Several weeks ago, I posted an article regarding a Snohomish County Judge who was stopped and arrested in late August for suspicion of driving under the influence and who refused the breath test at the station.  Due to a conflict of interest, Snohomish County Prosecuting Attorney Mark Roe asked his counterpart in King County, Dan Satterberg, to take over the case.  Last week, Deputy Prosecuting Attorney and District Court Supervisor Erin Norgaard, issued a letter indicating they were declining to file charges against the Judge.  The main reason was a lack of evidence.  While there was evidence the Judge had consumed alcohol, the prosecutor stated there was insufficient evidence to prove beyond a reasonable doubt that the Judge was impaired.

Following the arrest, there was a subsequent investigation where a detective interviewed a fellow Judge who was with the accused for dinner prior to the stop.  Based on the interview, the review of the police report and the in-car video, King County elected not to file a DUI charge against the Judge.  This has triggered much debate and commentary by local media and radio personalities.  MyNorthwest.com posted the video of the arresting trooper's in-car video.

Speaking frankly, I am quite surprised by this decision not to file charges.  I have represented countless people who were prosecuted for DUI where the evidence against them was far less than that in this case.  While the Judge will still need to address his administrative license revocation action by the Department of Licensing, he will not face the criminal charge of DUI.

I am in no position to speculate as to the why the prosecutor declined filing charges.  I am just troubled as this decision exemplifies how there are certain inequities in the arbitrary decisions made by prosecutors on whether to pursue DUI prosecutions against certain individuals.