DUI / Drunk Driving / DWI Officials may decide whether to toss evidence in DUI cases because of problems at state lab

Drivers charged with drunken driving in Franklin County may see crucial evidence against them tossed out if a judge decides to follow a pattern of court rulings around the state.

A hearing is scheduled for Friday to consider whether breath test results can be presented during trials in light of problems discovered at the state toxicology lab.

Judges in King, Snohomish and Clark counties have ruled they won't allow the breath tests processed before the former lab manager left in July 2007.

Ann Marie Gordon resigned after officials began investigating allegations that she violated lab policy by signing off on tests she hadn't actually checked.

A panel of three King County District Court judges issued their harsh ruling last month saying the tests can't be used because the toxicology lab's work was "so compromised by ethical lapses, systemic inaccuracy, negligence and violations of scientific principles."

Prosecutors in Thurston and Kitsap counties have since decided not to use the breath tests in their DUI cases. Just last week, Douglas County prosecutors opted not to present breath-test evidence in 11 cases.

Franklin County Prosecutor Steve Lowe didn't want to go into the merits of the issue while the court hearing is pending, but he did say that each case is different.

The notion that "it's a broad brush that applies to every one is too simplistic," he said. "While many defense counsels think King County is the law of the land, I think judges in Franklin County can make their own decisions."

Benton County followed Skagit County's lead and gave the OK to use the breath test results in court.

District Court Commissioner Joe Burrowes said the solution in question was certified by 15 other people so Gordon's misconduct didn't affect any of the breath tests in Benton County.

Benton County Prosecutor Andy Miller said the case argued before Burrowes was essentially the test case for the county. Burrowes' decision isn't binding on the other judges, but Miller said he's not aware of any other pending challenges.

"No one is concerned that any of the breath tests done on any Benton County case were inaccurate," he said. "Defendants only get breath tests if there's already independent reason for the trooper to believe the defendants were drinking. To me that's the thrust of why our courts have not followed the King County example.

"If the evidence shows that someone is driving while intoxicated, they need to be held accountable," he added. "This isn't a game."

Defense attorney Brian Roach argued that the breath test for his client, Royden Rosalez, should be suppressed because of the systemic problems at the toxicology lab. Rosalez was arrested for DUI by the Washington State Patrol in December 2006.

Roach said he presented more than 1,700 pages of exhibits and testimony from the Skagit County hearing to make his case.

"Everyone's called this the Ann Marie Gordon issue ... but her alleged perjury is just a small part of the big picture," said Roach, who's been a DUI defense attorney since he started practicing law about six years ago.

"The big picture deals with state agents having protocols establish for them in terms of how they're supposed to test and certify certain components of this testing process and either not knowing or not following those protocols," he said.

"It's really a larger governmental mismanagement on one side of it and the perjury aspect is part of that issue."

Last week, Barry Logan, director of the crime labs for the state patrol, including the toxicology lab, announced that he would resign effective March 14.

Officials have also said that problems at the toxicology lab have been fixed and 23 of the 39 recommendations by auditors have been implemented.

Because of the number of potential inaccuracies in the breath tests, the correct course of action is to make deals or try cases without relying on the test results, said defense attorney Jim Egan.

"I think law enforcement is embarrassed, and I think prosecutors are put into a very difficult position," he said. "It's not the job of the prosecutors to get convictions. It's the job of the prosecutors to see justice. Obtaining convictions with the information that comes out of the toxicology lab, at least for me, is very problematic."

With the different rulings around the state, both defense attorneys say the issue will likely have to be decided by the state Supreme Court. Roach said he anticipates Benton County's ruling to be overturned once the high court hears the issue.

"When a jury hears the (breath test) number, even when we go through a lengthy attack of the number, the bell's already been rung. It creates an unbearable hurdle for the defendant to go through to prove it's wrong," Roach said.

"It's pretty hard to accept the idea that our court system would allow obviously tainted evidence and mismanaged evidence to become a smoking gun in a criminal trial where a defendant is presumed innocent." DUI lawyers are watching this.