Wednesday, January 30, 2008

DUI breath tests thrown out by Astute Judge

California DUI lawyer news - breath test update

Three judges found so many problems with the state toxicology lab's work that they threw out the breath-test results for drunk driving suspects, a major ruling Wednesday that could affect many other DUI cases around King County.

In their joint ruling, the District Court judges found that "literally thousands of breath tests performed in recent years were affected through a multiplicity of errors in the toxicology lab."

While eight suspects were directly affected, 100 or more other DUI cases around the county have been on hold pending Wednesday's ruling, Chief Presiding Judge Barbara Linde said.

She said the ruling was very important "because DUIs are a very significant part of the District Court's work, both in their seriousness and their importance to the community -- and in sheer volume."

Defense attorney Ted Vosk, who had urged the judges to keep the breath-test results out of court, said he expected thousands of DUI cases to be affected -- namely every King County District Court case in which the suspect took a breath test.

The decision also could prompt many people to appeal past convictions because of problems he's documented at the toxicology lab dating back to 2002, he said.

In the 29-page ruling, Judges David Steiner, Darrell Phillipson and Mark Chow listed a litany of lab errors involving the ethanol-water solution that's used to make sure breath-test machines around the state are giving accurate readings.

They said the problems could have affected tens of thousands of breath tests, however slightly, and found that the lab's work simply could not be relied on by judges or juries.

"Simply stated," they wrote, "without the reliable evidence that a correctly functioning breath test instrument can provide, the discovery of the truth in DUI cases suffers; the innocent may be wrongly convicted, and the guilty may go free."

The current problems at the state lab surfaced last summer, with allegations that lab manager Ann Marie Gordon had certified -- under penalty of perjury -- that she'd tested dozens of batches of the solution when she hadn't.

Other problems with testing the solution subsequently came to light, including protocols that weren't followed, documentation that wasn't accurate and a software problem that resulted in errors.

In October, a two-judge panel in Skagit Valley District Court found that the lab had serious problems but declined to dismiss breath tests because of them.

The King County judges held an eight-day hearing earlier this month. Their ruling is not binding on the court's other 12 judges who hear DUI cases, but the case is expected to weigh heavily on what they decide for drunken-driving defendants in their courtrooms.