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Originally published Wednesday, May 21, 2008 at 12:00 AM

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Panel of Seattle judges rules State Patrol lab's breath-test machines unreliable

The Washington State Patrol Toxicology Lab plans to have all the breath-test machines it uses to measure the alcohol level of drunken-driving...

Seattle Times staff reporter

The Washington State Patrol Toxicology Lab plans to have all the breath-test machines it uses to measure the alcohol level of drunken-driving suspects retested for accuracy because of a ruling by a Seattle court.

In a ruling that could affect hundreds of Seattle cases, a panel of Seattle Municipal Court judges said Monday that the results of breath tests would not be admissible in court until reputed problems with the machines' accuracy are fixed.

State Trooper Ken Denton with the toxicology lab said the machines were verified for accuracy last fall but that the lab is ready to do it again.

"We're ready to do it tomorrow," he said Tuesday.

The ruling by four municipal-court judges is the latest to blast how the state crime lab, which is overseen by the State Patrol, administers and verifies breath tests used in determining intoxication levels in drunken-driving cases.

Problems with the breath-test machines came under increased scrutiny last year when former lab manager Ann Marie Gordon was accused of signing sworn statements that she had personally checked that breath-test machines were working properly, when other toxicologists had in fact conducted the checks. Gordon later resigned.

An audit of the toxicology lab by the American Society of Crime Lab Directors last fall uncovered numerous problems and earlier this year a panel of King County District Court judges blasted the lab, saying leaders had created a "culture of compromise" with so many "ethical lapses, systemic inaccuracy, negligence and violations of scientific principles" that the breath tests should not be used as evidence in pending cases of driving under the influence (DUI).

The district court judges noted at least 150 errors at the lab, including machine-calibration errors, the recording of incorrect data and a failure to test an ethanol-water solution used to ensure correct readings by the breath-test machine.

In the ruling on Monday, Seattle Municipal Court judges also noted that unchecked software problems contributed to inaccuracies.

Seattle City Attorney Tom Carr said the city will appeal the ruling.

The judges' ruling is similar to several others in the state.

Last week, Snohomish District Court Judge Tam Bui cited the crime lab's ongoing problems and said prosecutors would have to rely on evidence other than the results of the breath tests to prove DUI cases in her court.

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Carr said that of the approximately 1,200 DUI cases prosecuted by the city each year, only a small portion — which rely solely on evidence from the breath test — would likely see an outright dismissal.

For the majority of those charged with DUI, the ruling is not a get-out-of-jail-free card, Carr said.

He said that prosecutors often have other evidence sufficient to win a conviction in the reports written by police at the time of the arrest.

Arrested drivers seen weaving by police, for example, or those who smelled of alcohol or failed field-sobriety tests aren't going to benefit much from Monday's decision, Carr said.

"We will have to go over all the cases and look to see if we can try them on other evidence," he said.

Prosecutors have asked for clarification about the dates specifically included in the ruling, but attorney Ted Vosk, who argued the case on behalf of drunken-driving suspects, said the ban dates back about three years and pertains to "every single test in every case currently pending" before the city courts.

The ban will continue, Vosk said, until the breath-test machines are sent out for a "quality-assurance procedure" at an independent, accredited testing facility.

The ruling could open the door to some appeals by people with past convictions for DUI, he said.

"The issue here is the integrity of the process," Vosk said. "It's not befitting our justice system to deprive citizens of their liberty if the state knows the evidence is tainted by perjury, recklessness and disregard."

Carr said the issue has been ongoing since 2002, he said, when the local courts first banned breath-test evidence.

"It's very frustrating," he said. "Now we have judges kicking out all the tests without anyone proving their validity was affected."

"All we want is evidence we can trust," Vosk said. "That leads to the truth, and that's what we all want."

Christine Clarridge: 206-464-8983 or cclarridge@seattletimes.com

Copyright © 2008 The Seattle Times Company

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