Gerlach v. The Cove Apartments, LLC, 471 P.3d 181 (2020)

Citation: Gerlach v. The Cove Apartments, LLC, 471 P.3d 181 (2020)
Parent Document: Gerlach v. The Cove Apartments, LLC, 471 P.3d 181 (2020)
Jurisdiction: Washington (state)
Effective Date: 2020-08-27
Original Source: https://www.courtlistener.com/opinion/4780444/gerlach-v-the-cove-apartments-llc/ ↗

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If a plaintiff does not admit to being intoxicated, RCW 5.40.060(1) uses the same
standard as required for criminal convictions under RCW 46.61.502. That statute provides
two methods by which parties can prove a person was under the influence of drugs or
alcohol. First, a party may prove that a person was under the influence per se by showing
their BAC was 0.08 or higher through a timely blood or breath test that complies with state
toxicology standards. RCW 46.61.502(1)(a). Second, a party may show a person is “under
the influence of or affected by intoxicating liquor” by other evidence. RCW
46.61.502(1)(c). By providing two different methods to prove intoxication, “the legislature
was drawing a distinction between tests performed by the State and its agents . . . and other
tests, such as tests done . . . for medical treatment.” City of Seattle v. Clark-Munoz, 152
Wn.2d 39, 49, 93 P.3d 141 (2004). So tests done for medical purposes are admissible to
prove intoxication under RCW 46.61.502(1)(c), but they are “subject to the usual
evidentiary checks” as any other proffered evidence, including ER 403. Id.
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The Court of Appeals held the trial court did not err by excluding Dr. Carhart’s
testimony because “Dr. Carhart is not an expert in how alcohol affects the human body,
and his testimony on this issue would have been speculative.” Gerlach, 8 Wn. App. 2d at
827. Cove did not challenge this holding in its answer to the petition for review, so it is
not at issue here. -9-
Gerlach v. The Cove Apartments, LLC, et al., 97325-3

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