Court of Appeals-Prosecutor Can Mention Breath Test in Opening Statement

Posted Tuesday, March 29, 2016 by Andrew Charles Huff

It is well settled that any party may, in opening statement, refer to admissible evidence expected to be presented at trial. This theory was put to the test in a DUI trial when the Puyallup City Prosecutor told the jury what the defendant’s breath test level was opening statement but prior to the actual breath test being admitted into evidence.

Obviously a crucial piece of evidence in a DUI trial, the objection is based on the scenario that if the prosecutor is unable to lay a proper foundation and the breath test is suppressed, the jury has already been tainted because they already know what it is.

However, the Court held that because the breath test evidence was actually admitted in trial after all, then no prejudice has been shown.

The Court appeared to leave the question open, however, where a prosecutor again tells the jury what the breath test results are BUT is unable to have the results admitted into evidence during the trial. Possibly a question to be considered in a future case.