WHY BREATH TEST RESULTS ARE EXCLUDED IN KING COUNTY DUI CASES: NEGLIGENCE AND FRAUD IN THE STATE TOXICOLOGY LAB

I've been meaning to write a post on this issue for quite some time now. Today I'm writing about one of the most important cases for DUI lawyers and those charged with DUI in the Seattle-King County area. Since January 30, 2008, breath tests have been excluded from evidence in DUI cases filed in King County District Courts as long as the defendant filed an "Ahmach" motion. State v. Amach was a case in which three separate defendants in DUI cases made motions to suppress the breath tests in their cases on the grounds that the State Toxicology Lab was so deficient, that breath tests were too unreliable to be helpful to a jury.

In January of 2008, in the NE Divison of the King County District Court, a 3 judge panel took live testimony from experts and others who worked in the State Toxicology Lab and decided the issue of whether breath test will be admitted in court to prove that a person's BAC was over the legal limit. The 3 judge panel found numerous problems with the State Toxicology lab.

In Washington State, police use a machine called the BAC Verifier DataMaster to test the a person's blood alcohol content (BAC). This machine must be properly checked, calibrated and maintained. This is done by using an external simulator solution with a known amount of alcohol. The solution is prepared, tested, and certified by the State Toxicology Lab.

The external simulator solution is also used in the administration of every breath test. First, the machine is cleared to get a reading of 0.00. Next, the operator of the machine runs the external simulator solution through the machine to ensure that the machine is running properly. After the operator verifies that the machine is giving a reading that is in agreement with the alcohol content that the State Toxicology Lab has certified is in the solution, the machine is cleared again to get another reading of 0.00. At this point, the defendant blows into the machine and the machine will print out a ticket indicating that person's BAC.

As you cans see, the accuracy of the machines is dependent on accurate batches of simulator solution, and the reliability of each breath test administered to a DUI arrestee is also dependent on the State Toxicology Lab's accuracy in certifying the simulator solution.

Now let's get to the problems that the 3 judge panel found. First, the person charged with the duty of certifying under the penalty of perjury that she herself had tested the batches of simulator solution and could verify the alcohol concentration in each batch in fact never tested the batches. She had other people test them and she just signed off saying that she tested them and verified the alcohol content. This was happening from August, 2003 to August, 2007

Second, the State Toxicology Lab was using defective software. 16 analysts were to record their data from tests performed on a spreadsheet. Due to defective software, data from 4 out of the 16 analysts was routinely omitted. This affected, the accuracy, precision, and reliability of the test results on the simulator solution.

Next, the State Toxicology Lab uses gas chromatography machines in testing the simulator solution. One of these machines malfunctioned and was never repaired. This machine was still used in making laboratory calculations even after several analysts were aware that it was not working properly. This affected test results.

The court found that there were at least 150 errors caused by the analysts entering incorrect data and incorrect values for controls and certifying test results before the solutions had even been prepared.

The court also found that simulator solution logbooks were not recorded properly and that analysts were discarding test results for unknown and unrecorded reasons.

The inaccurate calculations made in certifying numerous batches of simulator solutions affected thousands of breath tests given to people arrested for DUI in Washington.

Because of all of these deficiencies in the State Toxicology Lab, the 3 judge panel found that the breath test results were not reliable and granted the motions to suppress the evidence. The Ahmach decision has been in effect in all King County District Courts since January of 2008. The panel said that the breath tests will continued to be suppressed until the prosecutor can show that the State Toxicology Lab has corrected its problems to the extent that breath test can once again be considered to be reliable.

MAN SENTENCED TO 3 YEARS FOR HIS 11th DUI

Last night, Dwight David Benson was sentenced in Seattle Municipal Court to 3 years in jail for his 11th DUI. He was sentenced to 3 years in jail, which is an unusually high sentence for Municipal Court. I am in that court all the time and was there this morning in fact.

The media covered this sentence and people have been debating whether this sentence was justified. Many argue that he should have been sentenced to 3 years in jail a long time ago- He does have ELEVEN prior DUIs.

The maximum sentence for a misdemeanor is 1 year in jail. DUI is a misdemeanor in Washington- unless a person gets convicted of four DUIs within seven years- then it's a felony. I know that Mr. Benson has not had 4 convictions with in the last seven years because he would have been charged with a felony and the Municipal Court would not have jurisdiction, so he would have to be sentenced in Superior Court.

If you have been convicted of 2 or 3 DUIs within the last seven years, and your blood alcohol content was over .15, then the MAXIMUM sentence allowed by Washington State law is imprisonment for "no more than one year and one hundred fifty days of electronic home monitoring."

Here's my question to all of you: If Mr. Benson is being charged with a misdemeanor in Municipal Court and therfore can only be sentenced to a maximum of one year in jail and 150 days of electronic home monitoring, then HOW DID HE GET 3 YEARS???

I haven't seen the court docket and the media hasn't been helpful in explaining this, so I don't know. I have a few ideas, but I'm interested in finding out what everyone else thinks. How did Mr. Bensen get sentenced to 3 years in jail for a DUI when the longest possible sentence is 1 year in jail and 150 days of EHM?