A remarkable Judge has ruled to suppress breath-test evidence in eight pending drunken driving cases. Judge McCauley's decision contradicts the July 10 ruling of Chelan County District Court Judge Nancy Harmon to allow juries to hear breath-test results despite procedural errors made by the state toxicology lab in certifying the reliability of the breath-test machine used in Chelan and Douglas counties.

The errors were not so egregious that juries should not be allowed to see the results in about 60 pending cases in Chelan County, Harmon concluded, adding that defendants can challenge the tests' reliability in court.

Wenatchee defense attorney John Brangwin asked both courts in June to throw out results collected from Feb. 6 to May 20 of this year because one of the chemical solutions used to calibrate the machine during that period had not been properly certified by the state toxicology lab. There is no evidence that results were affected.

In a letter to attorneys in the case dated Monday, McCauley wrote: "The courts and Legislature have made it clear that it is the State Toxicologist's responsibility to establish the procedure regarding preparation of solutions and maintenance of the BAC machines. ... To allow the admission of the test result ... which failed to comply with adopted procedure would result in unfair prejudice to the defendants."

In February, Chelan County without a fight agreed not to use breath-test results in cases from December 2006 to December 2007 in response to a ruling in Douglas County invalidating test results during that period. Several counties across the state suppressed results following revelations that the lab falsely certified solutions, improperly rejected data and used software that miscalculated data. Some test results indicated that the machine could be falsely measuring blood-alcohol levels.

Douglas and Chelan counties use the same breath-test machine at the Chelan County Regional Justice Center.

"I'm worried about the inherent unfairness of it all," said attorney Steve Woods, Brangwin's partner, noting that DUI suspects who were pulled over on one side of the river or the other and used the same breath-test machine are subject to different rules. "You're getting a checkerboard across the state," he said.

Woods and Chelan County Deputy Prosecutor Allen Blackmon said they do not anticipate any further breath-test challenges. The questionable batch of solution at issue in the most recent cases is no longer being used, and no problems with the certification of other batches have surfaced.

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