In the exceptional case where they are, it has been based on a detailed showing of the nature of the congestion or backlog, the steps the prosecution has taken to get around the congestion or backlog, and a reasonable time frame within which the case can be brought to trial. Mr. Denton invokes this case law on appeal, and particularly the substantially similar facts of the Washington Supreme Court's 1989 decision in State v. Wake , 56 Wash. App. 472, 783 P.2d 1131 (1989). ¶36 We will address Wake , but we begin with State v. Mack , 89 Wash.2d at 793, 576 P.2d 44, in which the Washington Supreme Court held that docket congestion was not good cause for scheduling a criminal trial beyond the 60-day time for trial required by JCrR 3.08, whose interpretation it held should be consistent with its superior court counterpart, former CrR 3.3 (1976).

Citing State v. Wake, 56 Wn. App. 472, 783 P.2d 1131 (1989), he contends the trial court did not have discretion to grant the State's motion for a continuance to accommodate congestion in the state crime lab. In Wake, we held that the trial court abused its discretion by granting the State's motion for a 30-day continuance because its expert witness from the crime lab was not available for trial.

But see State v. Woods , 143 Wash.2d 561, 583, 23 P.3d 1046 (2001) (stating that although crime laboratory's delay in completing deoxyribonucleic acid (DNA) testing could not be attributed to the State's counsel, “it is clear that conduct of employees of the crime laboratory, which is lacking in due diligence, constitutes actions on the part of the State.” See State v. Wake , 56 Wash.App. 472, 475, 783 P.2d 1131) (1989) (observing that actions of the employees of crime lab are considered actions of the State)). This rule is the same as CrR 4.7(d) except that CrR 4.7(d) refers to the “prosecuting attorney” rather than the “prosecuting authority.”

A trial court must dismiss with prejudice charges not brought to trial within the time required by CrR 3.3. CrR 3.3 (h). Citing State v. Wake, 56 Wn.App. 472, 783 P.2d 1131 (1989), Crandall contends that the trial court abused its discretion by granting the State's motion for a continuance based on delays that were caused by inadequate funding for the Washington State Patrol Crime Laboratory. In Wake, Division Three of this court held that the trial court abused its discretion by granting the State's motion for a continuance based on the unavailability of an expert witness from the State crime lab.

In State v. Wake, the State sought a continuance, because an expert witness from the state crime lab was unavailable. 56 Wn. App. 472, 473, 783 P.2d 1131 (1989). The crime lab was overworked, and there was insufficient staff manage the growing number of drug cases.

¶41 If we allow underfunding and congestion at the State's toxicology lab to excuse fair trial rights, there will be no inducement for the State to remedy the problem. SeeState v. Wake , 56 Wash.App. 472, 475, 783 P.2d 1131 (1989). The State prosecutes a high volume of DUI trials every year.

While this delay cannot be attributed to counsel for the State it is clear that conduct of employees of the crime laboratory, which is lacking in due diligence, constitutes actions on the part of the State. See State v. Wake, 56 Wn. App. 472, 475, 783 P.2d 1131 (1989) (observing that actions of the employees of crime lab are considered actions of the State). Although we express our dismay at the State's dilatory conduct, we do not believe that the trial court acted in a manifestly unreasonable manner by refusing to dismiss the charges in this case.

But the cases on which Kalac relies are distinguishable because the records in those cases supported findings of administrative shortfalls or inadequate funding that caused staffing shortages. State v. Mack, 89 Wn.2d 788, 794, 576 P.2d 44 (1978) (docket congestion and jury selection not "good cause" for trial continuance beyond the 60-day time-to-trial deadline); State v. Wake, 56 Wn.App. 472, 475-76, 783 P.2d 1131 (1989) (insufficient staff to process drug cases not unavoidable circumstances beyond the State's control); State v. Kokot, 42 Wn.App. 733, 737, 713 P.2d 1121 (1986) (without a record of courtrooms in use or availability of visiting judges to hear criminal cases in unoccupied courtrooms, a continuance granted for court congestion is an abuse of discretion). Kalac presented no argument in his opening brief on the other findings he challenged.

The issuance of a subpoena can also be an important factor in determining whether a continuance is proper.State v. Wake, 56 Wn.App. 472, 476, 783 P.2d 1131 (1989).

The issuance of a subpoena can also be an important factor in determining whether a continuance is proper.State v. Wake, 56 Wn. App. 472, 476, 783 P.2d 1131 (1989). A. First Contested Continuance