Breath test won’t prove some DUIs

EVERETT — Police and prosecutors better have more than a breath test to prove someone was driving drunk when they walk into one Everett judge’s courtroom.

Snohomish County District Court Judge Tam Bui last week ruled that she will not accept breath tests measuring a person’s alcohol level because of a litany of problems with the state’s testing process.

The way the state has been conducting the tests is flawed, and until changes are made at the Washington State Patrol Toxicology Lab, the results can’t be used as evidence in her courtroom, Bui ruled. She reached the decision while considering a motion to suppress test results for five people charged with drunken driving in the Everett Division of Snohomish County District Court.

The issue stems from evidence that former state lab manager Anne Marie Gordon made false claims about verifying solutions used as a control for breath tests. Gordon resigned in July 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.

Bui’s ruling doesn’t directly affect most drunken-driving cases brought by Everett police because they are filed in Everett Municipal Court.

It is less clear elsewhere.

A Snohomish County Superior Court judge early this year ruled that questions aside, a breath test could be used by prosecutors as evidence in one case involving a felony.

In December, a panel of judges from the South Division in Lynnwood ruled that breath test results couldn’t be used in about 40 cases there. The judges ruled the test results relying on the solutions with verification by Gordon must be excluded from trial. Judges in Evergreen and Cascade district courts have followed that narrowed ruling, county prosecutors said. About 1,000 cases have been affected.

Bui’s decision is broader than the previous ruling and could affect hundreds more cases.

“It’s a very reasonable decision,” said Bellevue defense attorney Ted Vosk. “The results are not scientifically accurate and just can’t be trusted.”

Vosk has argued similar cases around the state since the problems at the state lab were disclosed. He believes the tests results in thousands of drunken driving cases statewide are questionable. The state lab hasn’t proven that the process has been fixed, Vosk said.

Bui’s decision is limited to her courtroom and doesn’t bind other district court judges to exclude the breath tests, according to Evergreen District Court Judge Patricia Lyon, who oversees the county’s four district courts.

Prosecutors worry Bui’s decision is too broad.

Jurors should be allowed to hear the results of the breath tests, as well as the problems with the lab and make their own decisions about the weight to give test evidence, said Snohomish County deputy prosecutor Charlie Blackman.

“The decision essentially says that many small errors, which in our opinion have no scientific significance, result in the courts viewing the evidence not reliable enough for a jury to consider,” Blackman said. “We think that’s wrong. We think you can trust a jury to sort this out.”

The decision could allow drunken drivers to go free and put the community at risk, Blackman said.

The prosecutor’s office has filed eight appeals connected to other cases that have been affected by earlier rulings. They eventually will come to the Snohomish County Superior Court for review.

Washington State Patrol troopers will continue to aggressively pursue drunken drivers, Sgt. Freddy Williams said.

A breath test is only part of what troopers use to determine if a person in driving under the influence, he said. Other evidence includes slurred speech, erratic driving and inability to pass the field sobriety tests, Williams said.

“If a trooper hangs an entire DUI arrest on the breath test, he’s not doing his job,” he said.

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

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