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.

Talk to us

More in Local News

The county canvassing board certifies election results at the Snohomish County Auditor’s Office in Everett, Washington on Tuesday, Nov. 28, 2023.  (Annie Barker / The Herald)
General election results stamped official by canvassing board

In Snohomish County, one hand recount will take place. Officials said ballot challenges were down this year.

The Days Inn on Everett Mall Way, which Snohomish County is set to purchase and convert into emergency housing, is seen Monday, Aug. 8, 2022, in Everett, Washington. (Ryan Berry / The Herald)
Over $130M for affordable housing set to be approved by County Council

The five-year investment plan of the 0.1% sales tax aims to construct 550 new affordable units.

Two snowboarders head up the mountain in a lift chair on the opening day of ski season at Stevens Pass Ski Area on Friday, Dec. 2, 2022, near Skykomish, Washington. (Ryan Berry / The Herald)
Ski season delayed at Stevens Pass due to minimal snow

Resort originally planned to open Dec. 1. But staff are hopeful this week’s snow will allow guests to hit the slopes soon.

Siblings Qingyun, left, and Ruoyun Li, 12 and 13, respectively, are together on campus at Everett Community College on Thursday, Oct. 19, 2023, in Everett, Washington. The two are taking a full course load at the community college this semester. (Ryan Berry / The Herald)
Siblings, age 12 and 13, are youngest students at EvCC campus

Qingyun Li was 11 when he scored a perfect 36 on the ACT test. His sister, Ruoyun, was one point away.

Edmond’s newly elected mayor Mike Rosen on Wednesday, Nov. 15, 2023 in Edmonds, Washington. (Olivia Vanni / The Herald)
Mayor-elect Rosen wants to ‘make Edmonds politics boring again’

Mike Rosen handily defeated incumbent Mayor Mike Nelson. He talked with The Herald about how he wants to gather the “full input” of residents.

A speed camera facing west along 220th Street Southwest on Tuesday, Nov. 21, 2023 in Edmonds, Washington. (Olivia Vanni / The Herald)
Traffic cameras, and tickets, come to Edmonds; Mukilteo could be next

New school zone cameras in Edmonds will begin operating in January. Mukilteo is considering enforcement cameras as well.

A person walks their dog along a flooded Old Snohomish Monroe Road on Tuesday, Nov. 16, 2021 in Snohomish, Washington. (Olivia Vanni / The Herald)
Flood-resistant floors and sandbags are price of riverside life in Sultan

Flooding is a threat every year for 75,000 locals — and the long-term forecast suggests it’ll only get worse in the coming decades.

Lynnwood
3 men charged in armed home invasion near Everett

Prosecutors allege the trio targeted other Asian American homes across Snohomish, Whatcom and King counties.

Team members prep for the upcoming ski season at Stevens Pass Resort in Skykomish, Washington on Wednesday, Nov. 29, 2023.  (Annie Barker / The Herald)
Any day now: All eyes on snow forecast at Stevens Pass

The ski area was a flurry of activity this week, as staff made sure a new lift and app were running smoothly.

Everett
Carjacking suspects tracked via GPS from Everett to Renton, then arrested

A King County resident reported two people stole their Mercedes at gunpoint. Hours later, its GPS tracker pinged in north Everett.

Edmonds
Man sentenced for racist threats to Edmonds animal control officer

Sean Wagner spewed slurs at an officer who seized his dogs. He was sentenced to jail for a hate crime.

A sign in front of the AquaSox front office references the upcoming Everett City Council vote on a sum of $1.1 million to give to outside contractors to help upgrade a new stadium on Wednesday, Nov. 29, 2023 in Everett, Washington. (Olivia Vanni / The Herald)
Everett AquaSox stadium upgrade gets $1.1M green light from city

City officials want to keep the team in Everett. But will they play in a new stadium downtown in 2027? Or an updated Funko Field?

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.