BY TRACY JOHNSON P-I reporter Saturday, September 21, 2002
Section: News, Page: A1
Hundreds of drunken-driving charges could be weakened because State Patrol technicians didn't follow the state's own procedures to ensure that police department breath-test machines were working properly.
King County prosecutors have agreed not to use breath-test results against anyone who was arrested before the problem was fixed - the modification happened gradually between May and August - though they say none will get a free pass. They will look to other evidence to prove that the person was drunk behind the wheel.
But defense attorneys who got the test results thrown out in several recent cases - including a pivotal King County District Court ruling this week - say the problem could affect hundreds, perhaps thousands, of cases.
"For the average driver, it makes sure that if they are going to be charged with DUI, they can ensure the integrity of the evidence that will be used against them," said Geoff Burg, who successfully argued that test results should not be used against his client, Sean Sackett.
On Thursday, Judge Robert McBeth ruled that all breath-test results obtained before May 8 would not be admissible in Renton District Court. That's when the state's top toxicologist officially changed the protocol to endorse the way some technicians had been checking machines.
No one was claiming that the machines gave out false breath-alcohol levels. But in light of the ruling, King County prosecutors agreed they would not try to use the results in any driving-under-the-influence cases anywhere in the county.
They also acknowledged that some results obtained more recently would be inadmissible because the State Patrol spent about three months ensuring that breath-test machines statewide were in compliance. They now are.
"If a person gets a DUI tonight, their breath test is theoretically admissible," deputy prosecutor Mychal Schwartz said.
Burg said people who have been convicted of DUI during the past year may be able to appeal or withdraw their guilty plea.
The court rulings won't necessarily stop city prosecutors from trying to use breath-test results. Judges who hear municipal cases must decide whether they can.
About a third of the state's technicians were using the improper procedure, raising questions in other counties. The State Patrol couldn't immediately say which counties were involved, but Burg said they include Whatcom, Skagit, Island, Mason and San Juan.
Schwartz said he did not expect his office to dismiss any DUI cases, though there have already been some guilty pleas to lesser crimes, such as reckless or negligent driving.
"If it's a borderline case to begin with, we may make a deal," he said.
Police officers are trained to document plenty of other evidence that a driver is drunk - swerving, staggering, failing a roadside-sobriety test or admitting tipsiness, which happens with surprising frequency. Many are convicted even without a test showing their breath-alcohol level was .08 or higher, Schwartz said.
At issue is the way the State Patrol's 14 technicians were checking the breath-test machines used by police agencies.
One check makes sure it can detect acetone, a chemical found in some people's breath that can be mistaken for alcohol. Sgt. Rod Gullberg, who supervises the state's breath-test program, said some technicians were doing an acetone-related check with a scientifically sound but yet-to-be-approved procedure. "The bottom-line purpose was being accomplished," Gullberg said. "The instruments were being validly tested."
But Burg, along with attorneys Stephen Hayne and Diego Vargas, argued that it's not enough for the state to claim the machines were tested correctly. By law, protocol set by the state toxicologist must be followed.
"You can't just sprinkle fairy-dust on the machine; you have to follow a bunch of rules," Burg said. "It really does come down to making sure the state follows the rules that they write."
Other judges have agreed, including two at King County's Northeast District Court and two in Seattle Municipal Court. Burg and other lawyers will make the same argument in front of other city judges in pending cases.
Roughly 10,000 people are arrested on suspicion of drunken driving in King County each year and about 30,000 more across the state, Gullberg said.
Breath-test results are not evidence in all cases, however. They can be deemed inadmissible for many reasons, and sometimes people opt to lose their license for a year instead of blowing into the machine.
Breath-test procedures have been challenged in court many times in recent years. Gullberg said he doesn't expect that to stop anytime soon.
"That's the nature of the offense," he said. "When this happens, we adjust for it."
P-I reporter Tracy Johnson can be reached at 206-467-5942