WA considers lower DUI limit while lab backlogs delay drivers’ court cases

Between 2017 and 2021, nearly one-third of all deadly traffic crashes in Washington involved a driver who had been drinking. More than a third involved a driver who tested positive for drug use.

As the number of fatalities has climbed at an alarming rate each year since 2019, the proportion of impaired motorists killing pedestrians, bicyclists, other drivers or themselves has grown even faster.

With the state estimating 745 road deaths in 2022 — which would be the most in 30 years once the toll is confirmed — the role played by drugs and alcohol is getting a new look. Lawmakers, advocates and attorneys are focusing on two fronts in particular: a proposal to lower the state’s legal alcohol limit for drivers, and the yearlong backlog at the state’s toxicology lab that is snarling courts and letting problem drivers stay on the road.

State senators have already advanced a bill that would lower the legal blood alcohol limit to 0.05%, down from 0.08%, a step taken only by Utah and one that safety advocates in Washington say would deliver a clear message to drivers to avoid taking the wheel after even a single drink.

At the same time, prosecutors across the state say their ability to keep people accused of impaired driving off the road is severely hobbled by a growing backlog at the state’s toxicology lab. Measuring drug and alcohol blood levels is taking a year or more to process, light-years away from the lab’s goal of 60 to 90 days. The result is many drivers who otherwise would lose their privileges still drive today — and sometimes reoffend.

The reasons traffic deaths have grown so precipitously in recent years vary — fast roads cutting through communities, bigger cars, less enforcement and higher speeds amid reduced congestion.

But while rebuilding arterials and surface highways is a costly and politically difficult task, clamping down on impaired driving has bipartisan support in Olympia and carries with it the hope that the change will be immediate.

“Drunken driving collisions are preventable,” said state Sen. John Lovick, D-Mill Creek.

Hundreds of cases waiting

“We see toxicology as critical evidence,” said Amy Freedheim, senior deputy prosecuting attorney in the King County Prosecutor’s Office.

Not every DUI case needs a blood test, but for prosecutors facing the prospect of a skeptical jury, it’s often key and worth waiting for before filing charges or proceeding to trial.

Prosecutors, coroners and medical examiners in all 39 Washington counties send blood to the Washington State Patrol’s toxicology lab in Seattle for testing. Once upon a time, those results would be returned within two to three months.

In recent years, a backlog has begun to grow, and has accelerated since the beginning of the pandemic. Driving the delays are increased caseloads, limited space and lack of staff, said Chris Loftis, WSP spokesperson. Since 2012, the lab has seen a 45% increase in demand and currently processes up to 16,000 requests for tests per year.

“We are in a business where duty demands accuracy and where accuracy must trump expedience,” Loftis said. “However, we are very aware that delays in our work can lead to delays in just resolution, and efficiency is part of our duty as well.”

Prosecutors in King, Pierce and Snohomish counties agree the delays are affecting their work. James Daniels, senior deputy prosecutor in King County, said the department has around 300 DUI cases waiting on blood results — including that of Geno Smith, the Seahawks quarterback, who was arrested more than a year ago on suspicion of DUI but whose case has still not moved forward because prosecutors are waiting on the toxicology report.

If a person was clearly intoxicated, prosecutors might proceed without the blood level results. But in cases where a driver has refused a Breathalyzer or the on-scene evidence wasn’t clear enough, lawyers will choose to wait. The results are also important in cases where someone is combining drugs and alcohol, said Freedheim. Sometimes prosecutors will file charges while waiting, but that can backfire if the defendant doesn’t waive the right to a speedy trial. As a result, attorneys will sometimes hold off on filing the charges at all.

That means the person may continue to drive. For example, in September 2021, a 27-year-old man was arrested for driving over 100 mph before crashing on Interstate 405. Prosecutors waited to file the charges while the blood draw was being tested. The man was arrested again in January 2022 for, again, driving over 100 mph on I-405. Both times he was pulled over, police noted the smell of alcohol, according to court records. The man pleaded guilty to four counts in August, including felony DUI in both cases.

Afton Gregson, a deputy prosecuting attorney in the Pierce County Prosecutor’s Office, said the office will sometimes request an expedited blood test, but the risk posed by the driver to the community has to be clear.

“It’s hard,” she said. “It’s a struggle.”

Digging through the state’s backlog could take another two or more years, said Loftis. Lawmakers allotted an additional $4 million in the last budget for the lab, and a new lab is set to open in Federal Way in March. The patrol wants to hire up to seven new scientists, and the lab is working to streamline testing. But training the new hires and moving into the new lab take time, meaning the delays are likely to persist until at least 2025, Loftis said.

Industry opposition

The only state in the country with a blood alcohol limit below 0.08% is Utah, which lowered its threshold to 0.05% in 2019. The state saw a 20% reduction in fatal crashes that year, with surveys indicating drivers began modifying their behavior even before the new limit took effect. The National Transportation Safety Board, which has pushed for a lower limit for years, points to the results in Utah and encourages other states to follow suit.

Although the Washington Board of Health cautioned those results might not be replicated perfectly in Washington, Sen. Lovick said it’s a worthy change considering the number of traffic deaths. A former state trooper and sheriff, Lovick said he used to encounter drunken drivers regularly while on duty.

“If we lost two people per day doing anything else, we would be talking about it more,” he said.

Research from the National Highway Traffic Safety Administration found that “virtually all drivers, even experienced drivers, are significantly impaired” when driving with a blood alcohol level of 0.08%. In fact, evidence suggests most drivers also are impaired at 0.05%, but to a lesser degree.

Many of the state’s impaired drivers had a combination of alcohol and drugs in their system, which can have a multiplying effect on both substances, Shelly Baldwin, director of the Washington Traffic Safety Commission, said in a committee meeting this week. So while a lower alcohol limit wouldn’t change rules around driving high, “I do think that if we could remove alcohol from that equation, that would be good,” Baldwin said.

It’s unclear what the lower limit would mean for enforcement and prosecution; early data from Utah shows minimal changes in each.

Freedheim, from the King County Prosecutor’s Office, said she doesn’t expect a lower limit would affect behavior by police, who already make discretionary decisions about which vehicles to pull over. Instead, she said, it would lead to more “self-regulatory” decisions.

“This is reminding everyone who might have forgotten: Get with it,” she said.

Paul Ossorio, whose brother, Todd, was killed by a drunken driver 30 years ago in King County and who now runs a program where people with a DUI hear victims’ stories, said it’s a worthwhile change. But he was unsure how far-reaching the effects would be.

“I think it’s going to have an incremental impact,” he said.

The lower blood alcohol level so far enjoys political support from Republicans and Democrats. Gov. Jay Inslee has pushed for its passage.

Some from the hospitality and wine industries oppose it. Julia Gordon, of the Washington Hospitality Association, warned it would create additional liability for bartenders and restaurant owners.

“The 40% reduction in threshold will put thousands of businesses and tens of thousands of employees at new risk when there are no tools available to assist them,” she said during public testimony last month.

Limit as deterrent

Of the three lawmakers who voted against the lower blood alcohol limit in committee, one is Jesse Salomon, D-Shoreline. A public defender, Salomon says the backlog ought to be dealt with before lowering the limit.

“That may be one of the reasons that we are seeing higher accidents and worse driving,” he said in committee. “So to automatically, without analyzing that, a jump to [a 0.05] standard, I think, is premature.”

In assessing the possible effects of lowering the limit, the state Board of Health said it’s difficult to know exactly what it will mean for the legal system, but that it’s possible there could be more arrests and more prosecutions, which could in turn lead to more cases for the toxicology lab. A representative from the Washington Association of Prosecuting Attorneys told Board of Health analysts that lowering the limit “would likely affect prosecuting attorneys’ decisions to take a case to trial or to offer alternative resolutions (e.g. treatment).”

While the Utah law led to only small increases in arrests, the state did not examine how it affected the decisions of prosecutors.

Rather than add to the toxicology lab’s workload, Freedheim hopes the effect is the opposite: that fewer people will drink and drive in the first place, reducing the total number of cases. Of the backlog, she said, “Hopefully it’ll affect it in a positive way.”

Correction: A graphic with an earlier version of this story mislabeled the number of projected motor vehicle fatalities for 2022 as the projected number of crashes. A revised graphic above now shows the number of deaths from 2017-2021 and the projected number of deaths, 745, for last year.