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Will alcohol and drug evaluations, and domestic violence evaluations, become public record?

Posted by Andrea Robertson on Sep 18, 2013 | 0 Comments

The Washington State Supreme Court is considering major changes to the rules that affect the privacy rights of thousands of citizens. These changes could lead to the public disclosure of records involved in every alcohol and drug case, such as DUI's, and all domestic violence cases prosecuted in the district and municipal courts. (Click here for information about trial defense of these charges)

In almost every case of DUI and domestic violence prosecuted in the district and municipal courts of Washington State, the person accused of such crime is required to obtain an evaluation. This evaluation requires the person to sit down with a chemical dependency and/or domestic violence counselor to discuss private and sensitive subjects in their lives; like addiction, abuse, prior treatment, impact on family, etc. These evaluations can lead to recommendations for specialized treatment and further lead to court monitoring for completion of treatment if convicted.

These evaluations have historically been shielded from public disclosure. Until now.

Recently, the Supreme Court has reviewed the rule that protects these evaluations from disclosure (Click to view the applicable court rule), and has made a recommendation to eliminate the rule. Separately, the Supreme Court has recommended adoption of a new rule that would allow judges to release these evaluations upon request. (Click to view the proposed new rule)  Even more troubling, the Supreme Court is considering adoption of a new rule which could allow courts to release probation records which would disclose not only evaluations but other sensitive information. The proposed new rule GR 31.1.

Our office opposes these rule changes. As part of our membership in the Washington Foundation for Criminal Justice, we have written to the Supreme Court to compel the Court not to change these rules. Here is the letter Ryan Robertson drafted on behalf of the WFCJ.

Regardless whether the Supreme Court changes these rules, the reality is that recent court decisions are also challenging the ability to keep certain records private. In State v. DeLauro, 163 Wn. App. 290 (2011), the Court held that an evaluation reviewed by a judge to determine whether a defendant was competent to stand trial was a public record. Just recently, the State Supreme Court made the same ruling in State v. Louis Chao Chen (Case No. 87350-0). These Courts are of the opinion that the public must have access to any document relied on by a judge to make a decision in a criminal case: even documents that are otherwise excluded from public accessibility.

However, there is a silver lining. These evaluations can still be sealed by the trial court to prevent public disclosure. Further, the proposed rule changes must comply with due process which means the court must give each person prior notice when an attempt is made to make any evaluation public record, and the person must have the opportunity to object. Under the case Seattle Times v. Ishikawa, 97 Wn.2d 30 (1982), a case we discuss more thoroughly elsewhere on our website, a person who can establish serious and imminent harm if an evaluation is released may be able to prevent public disclosure.

Based on the proposed rule changes and the recent judicial decisions, the time may soon come when alcohol and drug evaluations and domestic violence evaluations may become public record.  Our office is prepared to lead the fight and use whatever means possible to keep our clients' sensitive and personal information away from public accessibility.

About the Author

Andrea Robertson

Andy is a passionate, creative and effective criminal defense lawyer who is willing to fight on your behalf. She has honed her skills since 1998, and has developed a proven track record of creative, vigorous, and effective advocacy for clients throughout the State of Washington. Her practice includes all criminal charges. This includes felonies, misdemeanors, and driving-related charges such as DUI or vehicular assault/homicide.

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