Toxicology-lab ruling likely to alter DUI cases

A judicial ruling against the state's toxicology lab is likely to create a legal quagmire when it comes to prosecuting suspected drunken drivers, attorneys are predicting.

While breath-test evidence before was usually considered reliable, its accuracy is now in doubt after a panel of King County District Court judges found a litany of ethical and scientific problems at the lab. How those problems affect drunken-driving cases could take months — if not longer — to play out, attorneys say.

Some may end up in the Court of Appeals, some charges will be reduced and other cases tried as charged. It's unlikely, attorneys say, that any drunken-driving cases will be dismissed outright.

For the past few months, district courts in Washington have been hearing motions by defense attorneys to suppress results from breath tests after former state toxicology lab manager Ann Marie Gordon admitted she'd signed off on tests she had not actually done.

Last fall, Snohomish County District Court judges ruled that 40 breath tests should not be admitted as evidence. But a week ago, a Snohomish Superior Court judge disagreed, allowing breath-test evidence in one case.

Unlike Snohomish County, where the ban was based only on Gordon's actions, the three King County judges heard evidence that put the very ethics and accuracy of the lab and its employees in question.

The three judges' ruling said the lab had a "culture of compromise" and engaged in "fraudulent and scientifically unacceptable" practices that went far beyond Gordon's actions and included other staff members, faulty software and 150 other errors.

The fallout from the widespread problems with the lab, which are more egregious than they thought when the Snohomish County judges made their ruling, could have a deeper and wider impact on King County, defense attorneys believe.

In Snohomish County, some of the drunken-driving cases where breath tests are a necessary part of the evidence have been plea-bargained down to lesser charges. Cases that were considered strong even without the breath tests proceeded anyway, said Snohomish County Prosecutor Janice Ellis.

In cases where lack of the breath test would make it impossible to try a defendant, prosecutors are filing motions to use those cases to support an appeal of the district court's ruling, Ellis said.

"Usually, prosecutors have so much evidence" that lack of the breath test hasn't been a big factor, said Lynnwood defense attorney Paul Hanson. "People think that all these cases are getting dismissed but there is nothing farther from the truth."

Often, when a DUI is reduced to a reckless- or negligent-driving citation, the sentence is nearly the same, he said. The benefit to the defendant is that instead of being on one's record for 15 years, the lesser charges will be on a driver's record for five, Hanson said.

In King County, the prosecutor has yet to decide whether to appeal, said Chief Criminal Deputy Mark Larson, who doesn't expect to dismiss cases.

How to proceed with DUI cases will be determined on a case-by-case basis, said Andrea Robertson, one of the defense attorneys who argued the case before King County District Court Judges Mark Chow, Darrell Phillipson and David Steiner. The three judges' ruling was advisory and other judges are not obligated to adopt it.

Nonetheless, future breath tests as evidence are also likely to be questioned, Robertson said.

The King County "judges didn't draw a line in the sand and say everything from now on is fixed," she said. "The problems with the lab are so multifaceted and the judges were just overwhelmed."

Nancy Bartley: 206-464-8522

or nbartley@seattletimes.com