AP News, January 31st, 2008
The State Patrol's toxicology lab has had so many ethical lapses and made so many scientific mistakes in recent years that alcohol breath test results should not be admitted at trial, a court ruled Wednesday.
The ruling by a three-member panel of King County District Court will likely make it easier for defendants in pending county cases to beat drunken driving charges and for those previously convicted on breath test evidence to appeal.
"Simply stated, without the reliable evidence that a correctly functioning breath test instrument can provide, the discovery of the truth in DUI cases suffers," the judges wrote. "The innocent may be wrongly convicted, and the guilty may go free."
Prosecutors can still try to win convictions based on other evidence, such as erratic driving and field sobriety tests.
The ruling by Judges David Steiner, Darrell Phillipson and Mark Chow is not binding on the county's other 18 district judges but is expected to be highly influential, said Presiding Judge Barbara Linde.
The court handles about 5,000 drunken driving cases a year, and the vast majority plead guilty or accept deferred prosecution.
The ruling cited problems with the patrol's toxicology lab, including the false certification of solutions used to verify breath tests, the improper rejection of data, mistakenly switched data and reliance on software that miscalculated data. Prosecutors can try to get breath tests admitted in cases after they have proven the lab's practices have been cleaned up, the judges said.
"The judges are saying, 'If you wanna play 'CSI,' you've got to make sure you can do it the way 'CSI' does it,'" defense attorney Ted Vosk said. "The science they did at the lab was so sloppy you can have no confidence in any of the results that were obtained."
Vosk said he was one of many defense attorneys around the state who helped cover the more than $25,000 it cost for experts, transcripts and other legal expenses in challenging the lab's work before the King County judges.
King County is the third in the state to reconsider the validity of the tests since reports of problems surfaced, and its ruling is the most sweeping. Skagit County judges ruled that although misconduct at the lab was troubling, there was no immediate evidence that the breath test results were invalid. In Snohomish County, judges threw out the tests in about 40 cases.
Bob Calkins, a spokesman for the patrol, said officers typically try to build strong cases against those suspected of drunken driving so that a conviction doesn't hinge on a breath test. That could limit the impact of the King County decision, he said.
The patrol has improved practices at the lab, he said.
"We look forward to getting back in front of them and showing that their concerns have been resolved," he said.
Mark Larson, King County's chief criminal deputy prosecutor, said that no decision had been made about an appeal, but that his office was prepared to continue prosecuting cases without the use of breath-tests.
Ann Marie Gordon, a toxicology lab manager, resigned last summer after a whistle-blower reported she had falsely certified quality-assurance samples used in drunken driving breath tests. The prosecutor's office declined to file perjury charges, saying there was no evidence she knowingly swore to a false statement.
