This is the problem with breath-testing machines in Florida DUI cases: a couple of numbers are spit out of a machine that very few people understand. Those numbers say that the person arrested was driving with a breath-alcohol level that was over the legal limit. Those numbers are, in turn, presented to a jury who view them as being absolute scientific fact. But as several cases in the state of Washington demonstrate, DUI breath-testing machines are not infallible. The following story appeared at seattlepi.com on October 3, 2007:
"DUI lab mix-ups finally get day in court: Licenses already returned to dozens of suspect drivers"
By JENNIFER LANGSTON AND VANESSA HO
Defense attorneys will start arguing next week to dismiss hundreds of drunken-driving cases across Washington based on what they allege is a pattern of misconduct and incompetence at the state toxicology lab.
Already, 36 people arrested on suspicion of DUI had their licenses reinstated last month, after several Department of Licensing hearing examiners expressed a lack of confidence in the Seattle lab's test results.
One examiner allowed a 49-year-old Puyallup man to keep his license, despite a second DUI arrest five days before his hearing. A 50-year-old Yakima County woman with a prior DUI also got to keep driving.
A flurry of motions to dismiss pending criminal cases or suppress breath-test results have been filed after the resignation of lab manager Ann Marie Gordon in July amid allegations that she signed false statements about her work.
And the recent discovery of a two-year error in the way the lab calibrated its breath-test machines, which slightly skewed some results, has added new complaints.
State officials, however, said Wednesday that the calibration error significantly affected only eight DUI cases and has no bearing on the overall accuracy of breath tests.
"We still have confidence in our test results," said Jeff DeVere, spokesman for the Washington State Patrol, which oversees the lab.
In King County, defense attorneys have filed motions to dismiss at least 55 drunken-driving cases based on allegations of flawed lab work. But the first arguments will be heard next week in Skagit County District Court, which has combined at least 40 similar motions.
Two judges will hear several days of testimony from defense attorneys, Gordon and other state toxicologists in an effort to decide whether disputed test results from the toxicology lab will be admissible.
"The disregard for procedures really brings into question everything they do," said Bellevue defense attorney Francisco Duarte, whose firm is handling some of those cases.
"This is the first opportunity for the defense to ... produce evidence that the government's misconduct is so egregious that those cases before the court should be dismissed or the evidence suppressed," he said.
But state officials maintain that Gordon's actions wouldn't have affected the reliability of the lab's breath tests. Prosecutors are still reviewing results of a State Patrol investigation and weighing whether to file perjury charges against her.
Gordon is accused of repeatedly signing sworn statements saying that she personally tested an ethanol-water solution used to make sure breath-test machines were working properly -- even though another scientist apparently did the work.
But because between three and 15 technicians test each batch, doubts about those certificates can be handled by having another technician testify about it in court, according to the state.
"I don't think anyone other than Ann Marie Gordon has any idea exactly what went on at the toxicology lab, but our take is that at this point it doesn't affect the reliability of these tests," said Skagit County Deputy Prosecutor Toni Montgomery.
It's every defense attorney's job to try to get breath-test results suppressed in a DUI case, Montgomery said.
She'll argue that the jury has the right to hear those results and decide how much weight to give them, along with evidence of poor driving, results from field-sobriety tests and officers' testimony.
In King County, a similar hearing on a motion to dismiss a DUI case based on Gordon's faulty certifications likely will be scheduled for late November. A judge has declared the motion an "issue of countywide significance" that could potentially affect all criminal cases involving tests administered between late 2003 and March 2007.
"We will answer in court when these issues come up," said Dan Donohoe, spokesman for the King County Prosecutor's Office.
Defense attorneys also point to a calculation error that arose in August 2005 when the lab increased its roster of toxicologists from 12 to 16, but failed to change the formula used to aggregate their data.
That mistake affected a series of solutions used to calibrate the state's breath-test machines. It was discovered during an in-house review after Gordon's resignation and announced this August.
DeVere said the mistake made a legal difference in only eight cases, all in Spokane. In four of those cases, drivers tested at 0.08 percent, the legal limit, when the result should have been 0.079 percent. The other four tested at 0.15 percent, which kicked in a harsher sentence, when their breath-alcohol level was actually slightly lower.
The breath-test machines "still meet scientific parameters for accuracy," DeVere said. "Did we follow exact procedure for the calculation? We didn't. But we don't believe it has material bearing on a DUI."
He said the inaccurate breath-test machines are a drop in the bucket against the department's 250 breath-test instruments and the 43,000 DUI arrests typically made each year.
"The defense is portraying this as the end-all and be-all of a DUI case, and it's not," DeVere said.
To address the mounting arguments of defense attorneys, the Department of Licensing conducted a fact-finding hearing Sept. 10 with testimony of two toxicologists. Since then, at least three hearing examiners have dismissed 36 cases, allowing drivers to keep their licenses.
"There is more at stake in these proceedings than just a computer error," hearing examiner Josephine Townsend wrote in a dismissal order on Sept. 18.
Townsend wrote that she gave "little weight" to the breath-test results for the following reasons: The "lack of check (sic) and balances;" the certification of results by unauthorized personnel; the state's re-issuance of breath-test calibration solutions; and the "credibility issues" of Gordon's work.
"I find that these issues erode my confidence in the quality of the scientific work performed, and call into question the reliability of the breath-test evidence presented before the problems were corrected," Townsend wrote.
DeVere countered that the licensing hearings are typically one-sided, often with no input from prosecutors, and limited to an arrest report and the "breath-test ticket" as evidence.
But Andrea Robertson, a Seattle criminal defense attorney, said those rulings serve as a wake-up call about the breadth of problems at the toxicology lab.
"It's staggering to think of how many cases could be affected," she said.
"It remains to be seen how big of an issue it will be -- but if judges view it as strongly as the Department of Licensing seemed to, it'll have a massive impact."
Breath-testing machines are operated by human beings who, at times, make mistakes either inadvertently or intentionally. Sometimes, as in Washington, the mistakes do not come to light until years later; sometimes they do not come to light at all. The result is that many innocent people have their driver's license suspended which can result in their losing their jobs and being unable to take care of their family responsibilities. One remedy for this serious problem would be to give DUI attorneys and the public at large access to all of the information surrounding these secret machines. After all, if these machines are so reliable, what is there to hide? Instead, however, when DUI lawyers who are defending people accused of DUI in Florida try to acquire this information, they are told by the companies that produce these machines that such information will not be provided due to patent law or copyright law. The result: more wrongful DUI convictions.