Judges reject DUI breath-test results

In a ruling that could affect thousands of cases, a panel of King County judges said Wednesday that the state's toxicology lab engaged in "fraudulent and scientifically unacceptable" practices that have compromised breath-test readings used to prosecute suspected drunken drivers.

The ruling directly affects eight cases currently before King County District Courts and more than 100 on hold pending the ruling. But it also could affect thousands that have already been resolved, because it is expected to open the door for appeals, attorneys say.

In its blistering 29-page ruling, the panel of three District Court judges said the Washington State Toxicology Lab 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 DUI cases.

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

"This is a very significant ruling," said Chief Presiding District Court Judge Barbara Linde.

However, she said the ruling does not mean the pending DUI cases necessarily will be dismissed.

Breath tests are a major piece of evidence in DUI cases but usually not the only evidence, she said. The observations of arresting officers and witnesses as well as the defendant's statements are also important in a case, Linde said.

King County Chief Criminal Deputy Prosecutor Mark Larson called the ruling "frustrating."

"We'll prosecute [suspected drunken drivers] without breath tests, which we've had to do at other times under other circumstances," he said.

Larson said the Prosecutor's Office had not decided whether to appeal the judges' ruling.

While other district-court judges in the county don't necessarily have to follow the ruling, it is expected to figure in their consideration of other drunken-driving cases.

Wednesday's ruling follows similar moves in other counties after questions were raised about the reliability of the lab's breath tests after Gordon's resignation July 20, 2007.

She 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.

Last fall, Skagit County judges ruled in favor of allowing the tests but criticized the lab for the way it handled the testing. Snohomish County judges ruled against allowing the breath tests to be used in prosecuting drunken-driving cases.

In Wednesday's ruling, King County District Court Judges Darrell Phillipson, Mark Chow and David Steiner came down hard on the toxicology lab.

The panel said it was a "situation screaming with irony" when Logan, the state toxicologist, ordered Gordon and lab supervisor Ed Formosa to investigate an anonymous tip to the State Patrol about the false certification of the very tests they were conducting.

The judges noted that Gordon and Formosa vouched for the accuracy of the lab's chemical solutions used to verify breath tests. Logan, although knowing that Gordon had not done her own tests, didn't call for another investigation and took no steps to correct it, the judges said.

The ruling was welcomed by defense attorneys who had argued against the breath tests during an eight-day hearing before the panel of judges earlier this month.

As the hearing progressed, "it was obvious the judges took note of how many people at the toxicology lab are implicated," said defense attorney Andrea Robertson, who with Ted Vosk and Kevin Trombold argued the case on behalf of numerous clients. "Following scientific practices couldn't be more critical when someone's liberty is at stake."

The judges also criticized the software used to analyze data. Implemented in 2005 by State Patrol programmers, it was supposed to analyze the data from all 16 lab workers, but failed to include the work of four. The software, the judges wrote, was not subjected to the testing it should have undergone and as a result, significant data were eliminated.

At least 150 other errors were noted at the lab, including the signing of declarations indicating that a solution had been tested before the testing took place; listing incorrect dates for testing; and entering incorrect data. The judges said the questions over his handling of the lab "cast a long shadow over Dr. Logan's ability to serve as the State Toxicologist."

King County prosecutors last year weighed whether Gordon should face criminal charges for falsely certifying DUI tests she had not personally verified, but decided against it. Prosecutors said Gordon lacked criminal intent when she verified the samples.

Gordon signed off on the tests believing it was within her scope as supervisor to delegate some of her work to others, the prosecutor's report said. No results coming from the lab were false, the report said.

The State Patrol, which oversees the lab, has been trying to correct the problems with its breath-testing practices, spokesman Bob Calkins said Wednesday.

"The lab has another audit by the [state] Forensics Investigation Council coming up, and we look forward to getting back in front of them and letting them know what we've done," he said.

Nancy Bartley: 206-464-8522 or nbartley@seattletimes.com