State broke breath-test rules

By Maureen O'Hagan
Seattle Times staff reporter

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It's unclear exactly how many cases the decision will affect, but the state began changing its testing protocols in March 2003 to address problems raised in this case, limiting its impact.

One lawyer estimated that hundreds of cases have been held up while awaiting this opinion. Even before the opinion came down, prosecutors were operating under the assumption that they would lose and offered plea bargains in hundreds of other cases, according to Moses Garcia, assistant city attorney for Seattle.

Their assumptions were proven right.

"These tests must be reliable, both to further the safety of our streets and to ensure just application of our law," the unanimous opinion said.

The ruling, while technical, centered on plain old thermometers.

Breath-testing machines work by comparing the concentration of alcohol in a subject's breath with that of a known solution at a certain temperature. A few years ago, defense lawyers argued that the machines' thermometers, which had been used to measure the solution's temperature since 1989, weren't maintained properly and therefore weren't accurate.

To avoid that argument in the future, the state adopted new regulations, saying the thermometers had to be compared to a superaccurate thermometer kept by the National Institute of Standards and Testing. That's normally done by comparing the machines' thermometers to another thermometer whose accuracy could be traced back, step-by-step, thermometer by thermometer, to the national standard.

The regulation made sense. The problem is, it wasn't followed.

"When you make the rules and you don't follow your rules, you're going to get caught," said Francisco Duarte, a lawyer who specializes in DUI cases.

Garcia, the assistant city attorney, said he was disappointed in the ruling.
 
"They didn't say the test was not accurate or reliable," he said. "They just said (the state toxicology lab) didn't follow (its) own rule.

"The rules have become our own worst enemy," he continued. "It has become a hyper-technical game of rules."

At any rate, the state began changing its testing procedures in March 2003 so that the machines conformed to the national institute's rule. And earlier this month, a new law took effect that made it easier to get breath-test evidence admitted into court even if the national NIST standard wasn't met.

For those cases that arose before the change in testing procedures but are still pending, the breath-test results may not be used in court, but they still may proceed using any other evidence of intoxication, such as failing a roadside sobriety test and slurred speech.