Ruling could restore use of breath tests in district courts

Published 11:28 pm Friday, April 24, 2009

EVERETT — Prosecutors are hopeful a Snohomish County Superior Court judge’s decision to allow breath tests as evidence in drunken driving cases will convince the county’s District Court judges to rethink automatically throwing the tests out.

Many of the county’s District Court judges began prohibiting prosecutors from using the results of breath tests to prove someone was driving drunk after problems were uncovered at the Washington State Patrol Toxicology Lab a ­couple of years ago.

Their decisions has affected hundreds of cases, according to Snohomish County deputy prosecutor Charles Blackman.

Superior Court Judge Kenneth Cowsert on Friday ruled prosecutors could use the results of breath tests in three cases involving suspected drunken drivers.

“Four times this has been heard in Superior Court, and each time the court has ruled that a blanket suppression is wrong,” Blackman said. “We believe the District Courts should follow this decision.”

The issue was first brought forward after evidence arose that former state lab manager Anne Marie Gordon made false claims about verifying solutions in the machines that were used as a control for breath tests. Gordon resigned in July 2007 after being accused of falsely signing under oath that she had verified the quality-­assurance solutions used in the tests.

The breath analysis machines use an external simulator solution to verify the accuracy of the results. The state lab prepares and certifies the breath machine solutions used by all police departments in the state.

If the solution is improperly prepared, the control tests could be wrong and the accuracy of the breath machines can’t be verified.

District Court judges here have ruled that any test results relying on the solutions with verification by Gordon had to be excluded from trial.

In October, Blackman successfully argued in Superior Court that despite Gordon’s misconduct, the tests were proven reliable. District Court judges continued to suppress the tests, looking to a decision in King County in which defense attorneys argued that there were additional problems at the state lab that hadn’t been fixed with Gordon’s departure.

Blackman told Cowsert on Friday that there had been exhaustive audit at the state lab and the problems were corrected.

Friday’s decision can be appealed.

Diana Hefley: 425-339-3463, hefley@heraldnet.com.