Analysis: The Atsbeha standard

Atsbeha, a criminal case, involved the application of a change in the law of evidence announced in State v. Ellis, 136 Wn.2d 498, 963 P.2d 843 (1998). The Chevron Oil test by its own terms only applies in a case in which a new rule is being adopted, not when a relatively new rule from another decision is being applied. Further, while the Washington Supreme Court cited to its earlier decision in Digital Equip. Corp. v. Dept. of Revenue for the elements of the Chevron Oil test, the next paragraph of that decision cites Robinson for the proposition that the precedential weight of Chevron Oil had been called into question by recent United States Supreme Court decisions. 129 Wn.2d 177, 184, 916 P.2d 933 (1996).

The Digital court concluded, "Chevron Oil no longer controls in this area." Id., at 188. Moreover, Chevron Oil was a test for application of a new rule adopted in a federal civil case, and has not been applied to application of a new rule adopted in a state criminal case. There was no precedent for use of Chevron Oil in this context.