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Editor: Colin Miller
Univ. of South Carolina School of Law

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Sunday, June 1, 2008

Seattle's Best?: Seattle Judges Rule That Breath Test Results Will Be Inadmissible Until Accuracy Problems Are Fixed

Last week, I wrote about the ruling by a Tucson judge questioning the reliability of the alcohol breath test used in Arizona since December 1, 2006 and thus jeopardizing countless DUI prosecutions.  Well, that's nothing compared to the problems that Seattle has had with alcohol breath tests for over a half decade.  Specifically, "in a ruling that could affect hundreds of Seattle cases, a panel of Seattle Municipal Court judges said [last] Monday that the results of breath tests would not be admissible in court until reputed problems with the machines' accuracy are fixed." 

These problems were first reported 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.  Worse, an audit of Gordon's 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.  These 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.

Last Monday, the panel of Seattle Municipal Court judges added unchecked software problems to the list of grievances with the breath tests.  Apparently, these Seattle Municipal Court judges are not alone as their ruling is similar to several others in Washington state.  Meanwhile, Seattle City Attorney Tom Carr noted that the ruling was nothing new as "the issue has been ongoing since 2002...when the local courts first banned breath-test evidence."

Unaware of this history, I decided to look into the case law and found the issue addressed in State v. MacKenzie, 60 P.3d 607 (Wash.App. Div. 1 2002), where the Court of Appeals of Washington found that the state toxicologist was justified in promulgating temporary emergency regulations when no quality assurance procedures were performed to ensure the reliability of breath test equipment after the legal breath alcohol concentration limit in Washington was lowered from .10 to .08.  What this means is that there are serious questions about the reliability of breath test evidence, at the very least in Washington, Arizona, and New Jersey.  When we add to this the questions about the reliability and admissibility of HGN test results, we see that things are very uncertain in DUI cases.

-CM

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