Setback for DUI cases - Ruling excludes breath-test evidence

John Stark, The Bellingham Herald
Thursday, August 21, 2003

Whatcom County District Court Judges Ira Uhrig and Matthew Elich ruled Wednesday that breath-test evidence in dozens of drunken-driving cases will have to be thrown out.

The judges made their ruling after hearing arguments from local defense attorneys who joined counterparts across the state in challenging the scientific procedures used to prove the accuracy of the machines that measure blood-alcohol levels by analyzing breath samples.

The ruling could make it more difficult for prosecutors to win convictions on arrests for driving under the influence of alcohol between April 2001 and late last June in unincorporated Whatcom County. Bellingham DUI cases are heard in Municipal Court, and that court has yet to rule on similar defense motions challenging breath-test procedures there. Lynden, Ferndale, Blaine, Everson and Sumas also have their own municipal courts that have not considered the issue.

The ruling has no impact on more recent arrests, because the Washington State Patrol has changed its procedures for verifying the accuracy of the breath-test machines to meet defense attorneys' objections.

Bellingham attorney Steve Childress, who was one of those who challenged the breath-test evidence, said there was no immediate way to determine the number of cases affected by Wednesday's ruling, but he estimated it at close to 100.

In a jointly signed letter sent to defense attorneys and prosecutors, the two judges said their ruling would not result in wholesale dismissal of affected DUI cases.

"Contrary to what some have speculated, this need not result in the state's dismissal of pending DUI cases, for it does not restrict the state from offering other relevant evidence that an accused was driving while intoxicated, and the judge or jury will then make appropriate findings of guilt or innocence in each case, based on the evidence presented," the letter said.

Technical issues

The legal issue centers on the procedures used to verify that breath-test equipment is operating at the proper temperature. The breath-test machine compares the alcohol level in a person's breath with the alcohol level in a simulator containing an alcohol-and-water solution known to be at the legal limit of .08 percent. To get an accurate comparison, the machine is supposed to operate at a temperature the same as the human body's.

In April 2001, in the wake of earlier legal challenges to breath testing procedures, state toxicologist Dr. Barry Logan issued new rules for conducting and validating the breath test results. Logan's rules became part of the Washington Administrative Code, giving them the force of law.

The rule laid down by Logan states that the thermometers in the breath test machines must be tested against a reference thermometer that is "traceable" to standards maintained by the National Institute of Standards and Technology.

Defense lawyers argued that under that rule, the prosecution must be able to prove that the thermometer in the machine used in any DUI case has been tested against a thermometer that can be documented as comparable to a thermometer tested by the institute.

All breath-test machines in the state, including those used by city and county law enforcement agencies, are under the supervision of the Washington State Patrol. The patrol has a contract with Bostec Inc. of Lynden to provide, repair and test the machines.

In sworn testimony given before a hearing examiner in King County last November, company president Rich Bosman said he tested the thermometers in the machines by comparing them against his company's thermometer, which had been checked by the manufacturer, which in turn is checked by the testing institute.

In his own sworn testimony, Logan said Bosman's procedure met the state standard that Logan himself had written.

But in King County, a three-judge panel ruled on June 17 in favor of defense motions to suppress breath-test evidence. The judges agreed with defense attorneys that the state needed to be able to provide documentation to prove that the thermometer in each breath machine had been tested against a thermometer certified as accurate by the testing institute.

In late June, as a result of the King County ruling, the Washington State Patrol began testing the thermometers according to the stricter standard, although judges in Pierce and Snohomish counties had ruled in favor of the prosecution on the issue.

Bellingham cases

Childress said the Whatcom County ruling helps to maintain the credibility of the breath test, and in the long run that will be good for the prosecution.

"The overall effect is actually going to be better evidence before juries, more reliable evidence before juries, leading to a better system of justice," he said. "This promotes public confidence in the breath test equipment."

It is not yet clear if or when Bellingham Municipal Court Judge Debra Lev will be asked to rule on the matter.

Childress said Bellingham prosecutors have offered reduced charges to all his DUI clients arrested in the time period covered by the legal challenge, making it unnecessary for him to force the evidence issue before the judge.

City Attorney Joan Hoisington said her office is approaching the matter on a case-by-case basis, and may yet find a case in which no legal bargain is acceptable. City prosecutors would then ask the judge to accept the validity of the breath-test results - as courts in some other counties have done.

"You pick and choose your battles," Hoisington said. "I think that's a wise use of judicial resources."

Whatcom County Deputy Prosecutor Peter Dworkin was not immediately available for comment. But in an interview about a month ago, before the ruling, he said it would still be possible to convict some people charged with DUI even if their breath-test results are thrown out. People who show visible signs of intoxication can still be convicted on the basis of the arresting officer's sworn testimony, he said.

Reach John Stark at 715-2274 or



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