Courts disagree on DUI breath tests validity

Local courts are coming up with opposing rulings on the validity of breath tests in drunken-driving cases, following the disclosure of problems in the state’s toxicology lab.

Snohomish County Superior Court Judge Kenneth Cowsert last week ruled that a breath test could be used by prosecutors as evidence in one case. In December, a panel of Snohomish County District Court judges ruled that breath tests could not be used in about 40 such cases with similar questions about testing evidence.

“All sides, I think, would agree that this issue will eventually see the Court of Appeals, if not the (state) Supreme Court, hear the issue,” Snohomish County deputy prosecutor Andrew Alsdorf said.

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The issue stems from evidence that a one-time manager at the Washington State Patrol Toxicology Lab made false claims about verifying solutions used as a control for breath tests. The manager 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 as a control to verify the results. The toxicology lab prepares and certifies the breath machine solutions used by all police departments in the state.

If the control solution is wrong, the results of the breath test are wrong.

The judges from the South Division of Snohomish County District Court in Lynnwood ruled that test results relying on solutions with verification by the now-questioned former manager must be excluded from trial.

In addition, defense attorneys dug into the lab’s procedures and have discovered problems with software and other errors in the preparation of the control solutions.

Although many problems were noted, Cowsert found that the prosecution has not shown prejudice.

He also ruled that there was no proof that the errors affected the control solution used in the case he heard.

Several similar cases are being reviewed in courts around the state. Bellevue defense attorney Ted Vosk has argued in most of them. Vosk said last week that Cowsert didn’t have new evidence developed by defense lawyers, who are working together on the issue. Vosk maintains that test results in thousands of drunken driving cases statewide are questionable.

“(Cowsert) needed the information that is now available in order to rule in our favor,” Vosk said.

Alsdorf said Cowsert’s ruling is persuasive, but not binding on the District Courts.

The prosecutor’s office has filed four appeals from among the 40 decided in the Lynnwood court, meaning that they eventually will come to Snohomish County Superior Court for review.

“There are literally hundreds of (other) cases affected by that ruling,” Alsdorf said of the South Division decision by three judges.

Many of those cases are going to court without breath-test evidence. In some cases, prosecutors have offered a reduction in the charge in exchange for a guilty plea.

“In other cases where there are multiple prior (drunken driving offenses) and we can’t stomach the idea of a reduction, those are the cases we’re appealing,” Alsdorf said.

Reporter Jim Haley: 425-339-3447 or jhaley@heraldnet.com.

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