Are DUI Breath Tests Solid Science, Or Just “Good Enough For Government Work?”
Last Friday the Bellingham Herald ran the following headline and story: Calibration error puts DUI tests across Alaska in doubt. The article written by James Halpin originated from the Anchorage Daily News and states that “Nearly 2,500 breath-alcohol tests conducted in drunken-driving cases across the state over a period of nearly four years used equipment with flawed quality control standards. As a result defense attorneys say the flawed practice calls into question the accuracy of the test. State officials acknowledge the error but say it did not affect the breath-alcohol level DUI suspects blew, only the quality-control checks that accompany every test.
Alaska State crime lab is not alone in this all too common habit of having a flawed quality control system, as they are the most recent state to have their flawed processes exposed. In June 2010, in Washington DC there were at least 400 DUI convictions that were based upon the machines being improperly adjusted by city police. According to the D.C. Attorney General, the District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was. To put this in perspective that means a breath test of .07 is reported as a .084, thereby transforming legal behavior into illegal behavior. Or moving the result over the .15 limit where enhanced DUI penalty and punishment occurs. In July 2010 another lab was exposed in NC Crime Lab Buried Blood Evidence Memo.
In defense of their substandard work, lab technicians, employees, and managers, all have defended their work product by saying the same thing “it does not affect the results,” or it “does not affect the results enough to worry about.” However in Washington State in 2008, when these types of problems were initially identified, they were also said to be “minor and insignificant,” but the Court found otherwise and ordered all tests suppressed- an extraordinary remedy.
Throughout the 2008 hearings this claim of insignificance was not only the first explanation offered but amid mounting evidence to the contrary it became the lab mantra. After several days of testimony from lab personnel, WSP Breath test consultants, and Scientist from the UW, it was clear that problems were far from minor: improperly mixed solutions, flawed software issues, and employees vouching for the work of others with no such knowledge of the work or the quality, causing breathalyzers to function incorrectly and give false BAC readings.
Fortunately of for those accused of DUI based upon breath test evidence that was flawed, in this manner the Court was neither fooled by the mantra, nor forgiving. The 3 judges presiding unanimously slammed the lab’s performance in a 29-page report and said that judges or juries could not rely on the accuracy of breath test evidence found that the work product was not defensible due to a “culture of compromise” and a “multiplicity of errors” at the lab. In the courts final few pages of the lengthy ruling it was held that the lab was found to demonstrate “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” in processing of solutions used to calibrate breath-testing equipment. Consequently, the court suppressed more than 18,000 breath tests at that time and the suppression order is ongoing until fixed.
The ruling required the Lab to remedy these deficiencies and when they had done so, the court will reconvene and address the breath test admissibility once again. Apparently the significance of this WSP Tox Lab fiasco was not noticed by other crime labs as evidenced by the recent “minor” problems in Alaska and DC.
This first week of August the three Judge panel will sit once again in judgment of the work product of the Lab. It is reported by the lab and prosecutors alike that the multitude of problems that were exposed more than 2 years ago have been fixed. It is now up to the judicial panel to decide if the problems truly have been fixed. However, with only such a short time having passed, it is hard to imagine that such severe problems identified have been fixed. Consider the fact that; “ethical lapses,” and violations of scientific standards and lab standard operating procedures, all of which led to “The” State Toxicologist who was in charge of the breath testing program, to promptly resign, followed by the Lab’s manager, after she was discovered to have had others do her work for her, yet she signed off as though she completed the work herself, as well as, the toxicologist who most often did her work also resigned rather quickly after the 2008 hearing. While these are the most prominent actors there was an exodus of other employees.
While the 2008 hearing sparked a large turnover in the lab as well as a public commitment to “do better,” the various improvements in the lab made to date, are still far from forensically sound. Around Washington there have been hearings on this issue, with mixed results, but most recently, Skagit County did not suppress evidence but forced the state to provide information that was not previously ever presented to juries in DUI trials. Currently Whatcom County DUI cases await a ruling on this very same issue after 3 days of testimony.
It may be tempting to blame DUI lawyers and attorneys alike for the states breath testing problems, such blame is misplaced. The state and its actors have an obligation to put forward the best evidence possible in a trial. They have an obligation to adhere, not only to their own standards, but more importantly, adhere to the generally accepted scientific standards of breath testing. To do otherwise is a violation of rules but also a miscarriage of justice since innocent people may go to jail due to unsound evidence.
DUI is not a crime that engenders a sympathetic ear but neither is rape, nor murder and as we have seen far too many people have lost years of their lives due to a lack of adherence to science as evidenced by re-testing of evidence. The defense bar stands as the last line of defense to guard against taking liberty without the best possible evidence. All we ask is that evidence, in this case, breath testing evidence, be obtained in a reliable and scientific manner as the procedures, protocol, and science requires. There is no hidden agenda. Prove guilt beyond a reasonable doubt. Nothing more, nothing less.
As evidenced by the complex science associated with DUI breath testing, DUI is not an allegation to be dealt with lightly and this is exactly why an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success is mandatory. If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.
Can You Be Prosecuted For Under .08? – YES
Washington State has done a good job of publicizing that if you drive at .08 or higher, you will be prosecuted. The State Patrol’s “Drive Hammered, Get Nailed,” “Over the limit, Under Arrest,” “Buzzed Driving Is Drunk Driving,” and “Nightime seatbelt,” campaigns, are all very effective in putting the dangers and consequences of drunk driving in the minds of Washington drivers. So, knowing this, you have one glass of wine with dinner or maybe a cocktail after work or a pint of Guinness for St. Pat’s. You know you aren’t drunk. You know you are not even close to the legal limit. You are a responsible person, not a law-breaking criminal. You don’t even panic when the red and blues start flashing in your rearview mirror. Maybe you should panic. What most motorists do not know is that Washington has in fact abandoned the concept of a “legal limit” in favor of prosecuting any drinking driver, even if the driver’s breath test is well under the legal limit. The .08 limit is a half truth. I know. I have represented numerous citizens in Whatcom, Skagit, Island counties, and elsewhere who were all well under the “legal limit” of .08 but they were still prosecuted for DUI. In fact, two clients’ breath samples were .0, and another was over the limit but NOT even driving and they were all still charged and prosecuted. While the charges were all dismissed, the process was unnecessary and stressful for them.
How can this be? It happens because there are two distinct sections in our DUI law. One part of the statute sets forth the Per Se .08 “legal limit,” but the other part says you can be charged with DUI if you are “under the influence of or affected by intoxicating liquor.” Surprisingly, a driver who knows he or she is under the .08 legal limit will still be charged with a DUI if the police officer who stopped him or her forms an opinion that the person is “affected by” alcohol. The officer’s opinion is based upon his or her observations of the driver and the driver’s performance on field sobriety tests. Most of the time these field sobriety tests are not videotaped and thus, there is no independent evidence for you to rebut the officer’s opinion that you failed the tests.
If you are under the legal limit and yet charged with DUI you will face an experienced prosecutor and a harrowing journey through the legal system.
The road signs you see announcing the .08 legal limit are essentially a half-truth. The whole truth is that being under a .08 is no “safe harbor” from being prosecuted for DUI, and refusing the breath test will only make things worse. Even if you are found innocent of DUI, refusing to take the test will result in a year’s revocation of your license by the Department of Licensing. If you are convicted of DUI after refusing the breath test, you’ll lose your license for two years even if you previously had a clean criminal record. Who says our DUI laws are not tough? Taken together with the real but unannounced policy of “no tolerance” towards any drinking driver, citizens are on notice: don’t rely on being under an .08 to keep you out of jail.
