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Originally published March 22, 2010 at 6:46 PM | Page modified March 23, 2010 at 8:27 AM

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Prosecutors say crime- lab problems fixed, want to start presenting DUI breath-test evidence again

King County judges say they will revisit the issue of the accuracy of DUI breath tests after an overhaul at the troubled Washington State Crime Laboratory.

Seattle Times staff reporter

Three King County District Court judges who in 2008 called into question the ability of the state crime laboratory to accurately report the results of DUI breath tests will revisit the issue after authorities promised Monday that problems at the lab have been addressed.

Chief Presiding Judge Barbara Linde said Monday that the same three judges whose findings three years ago threw DUI prosecutions in King County into turmoil will hear of improvements to the laboratory. King County Prosecutor Dan Satterberg asked Linde to readdress the issue, promising that the lab has cleaned up its act.

In the three years since the ruling, the laboratory has undergone a major overhaul, lab leadership was replaced and the facility was accredited, authorities said.

"We're looking forward to telling them about a remarkable transform of the state toxicology lab," Satterberg said. "The state scrubbed that lab from top to bottom; we'll be able to prove to the court that every one of their concerns have been taken care of."

Nearly 4,000 drunken-driving cases are prosecuted in King County annually, Satterberg said. Without the breath-test results, prosecutors have had to rely solely on "evidence of bad driving, poor performance on field sobriety tests, and other signs of driver impairment," the prosecutor's office said.

"It did hamstring us for sure prosecuting cases. We're looking forward to getting the best evidence before the jury," Satterberg said.

In January 2008, District Court Judges Darrell Phillipson, Mark Chow and David Steiner issued a blistering 29-page ruling, saying that the lab engaged in "fraudulent and scientifically unacceptable" practices that have compromised breath-test readings used to prosecute suspected drunken drivers.

The judges found that a "multiplicity of errors," including how breath-test results were analyzed and verified at the lab, affected thousands of cases in recent years. Specifically, the judges criticized the work of former state toxicologist Dr. Barry Logan and former lab manager Ann Marie Gordon.

Gordon had been accused of signing sworn statements saying she had personally checked that breath-test machines were working properly, when other toxicologists had in fact conducted the checks. In addition, machine-calibration errors were found to have affected other cases.

The prosecutor's office never appealed the 2008 District Court ruling.

To prove that the office has changed, prosecutors plan to present testimony from Dr. Fiona Couper, who has been the state toxicologist since March 2008, and lab quality-assurance manager Jason Sklerov. The Quality Assurance Program was instituted in 2008 to ensure that inaccuracies and ethical concerns were addressed, according to the motion filed by the prosecutor's office.

Satterberg said that the state toxicology lab is one of four programs in the world to be accredited by the International Organization for Standardization.

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Kirkland defense attorney Ted Vosk, one of several lawyers who argued the case before the three-judge panel in 2008, said he wasn't surprised at the filing by the prosecutor's office.

"I think the lab has made a number of improvements over the past two years and deserves credit for that," Vosk said. "Unfortunately, there are still a few things it still needs to do before the results that it reports can be considered scientifically valid."

Vosk said that the lab needs to start telling juries that breath-test results have a margin of error, which is "a natural part" of a scientific measurement process. Vosk says that state scientists or prosecutors should tell juries that the machines are not 100 percent accurate and that any breath-test result should be considered with the possibility of uncertainty.

Otherwise, he said, "It's conviction by machine."

A hearing date has not been set.

Information from Seattle Times archives is contained in this report.

Jennifer Sullivan: 206-464-8294 or jensullivan@seattletimes.com

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