Today in the Seattle PI, Tracy Johnson reported the following
People arrested on suspicion of drunken driving on Seattle streets anytime before mid-December will now avoid having the results of their breath tests used against them in court.
A ruling by four judges Monday is expected to affect hundreds of people awaiting trial on drunken-driving charges in Seattle Municipal Court, chipping away what can be key evidence in DUI cases because of past problems at the state toxicology lab.
The judges barred the results of all breath tests given before Dec. 18, 2007, the date the lab revamped its scientific procedures for making sure breath-test machines are accurate.
“We want drunk drivers off the road, but we want to make sure the evidence used is good,” said defense attorney Ted Vosk, who argued the case on behalf of accused drunken-drivers. “People are starting to recognize what a huge problem this was.”
Vosk said he believed the ruling would also affect Seattle’s drunken-driving cases from this year because of lingering problems from before the new procedures were put into place.
Seattle City Attorney Tom Carr plans to appeal.
He said the decision could affect hundreds of the 1,200 drunken-driving cases his office files each year, but that only “a fairly small number” of charges would likely be dismissed.
In many DUI cases, there is plenty of other evidence — including how the person was driving and how he performed on a roadside sobriety test — to prove impairment.
“This might give someone a better plea bargain than they would have had” and might lead to more people bringing their cases to trial, Carr said, but “in most cases, we’ll proceed one way or another.”
The decision also means people who were already convicted of drunken driving in the past few years could try to appeal, though it doesn’t give them a surefire way to get their cases overturned — particularly if the other evidence against them was strong.
Problems began to surface at the toxicology lab last summer, when lab manager Ann Marie Gordon was accused of signing off on scientific tests she hadn’t actually done.
Then other faulty procedures came to light involving the same subject: how lab workers test an ethanol-water solution that is used to make sure breath-test machines, kept in police stations around the state, are giving correct readings.
In Monday’s ruling, the judges found that software problems led to inaccuracies at the lab and that “not a single toxicologist ever checked” to make sure the computer was calculating data correctly.
There were also at least 170 other errors made in the lab’s effort to precisely prepare and document the solution, the judges wrote, citing mixed-up solutions, misreported data, scientists signing off for others’ work and other flaws.
A spokesman for the Washington State Patrol, which runs the toxicology lab, could not be reached for comment late Monday.
State Patrol officials have previously said they have worked hard to correct the lab’s shortcomings and restore the public’s faith in the lab’s work.
State toxicologist Fiona Couper was appointed to take over as head of the lab in March as Barry Logan, the longtime leader of both the toxicology lab and the state’s crime lab, stepped down.
Monday’s ruling — by Judges Jean Rietschel, Judith Hightower, George Holifield and Michael Hurtado — echoed rulings in Snohomish, Jefferson and Mason counties, Vosk said.
It didn’t go quite as far as one earlier this year in King County District Court.
There, a three-judge panel found that the lab would need to show that most of its problems had been fixed before they would accept any breath-test results as evidence in DUI cases again.
Prosecutors in some areas, including Kirkland and Issaquah, have simply agreed not to use breath tests until the toxicology lab’s problems are corrected, Vosk said.
Seattle’s ruling affects cases dating back roughly three years.
The timing depends on whether the accuracy of the breath-test machine that was used was tested with a solution that was improperly certified; those solutions date to the early part of 2005, Vosk said.
The toxicology lab put new protocols in place after an American Society of Crime Lab Directors audit highlighted numerous problems in October.
“I think the lab has made major improvements,” Vosk said. “I still think that they have work that needs to be done.”
You can read the full article here.