By Geoffrey Burg, September 13, 2002
Attorneys for people accused, or recently convicted, of a DUI or any crime where a breath test has been taken, should be aware of an issue that has suppressed years worth of breath tests.
Washington State Patrol Breath Test Technicians around the state have violated one of the rules for calibrating the breath-testing machine during the "Quality Assurance Procedure." This has lead to the suppression of many breath tests.
Because of this violation of the rules, a defense motion was successful in suppressing breath tests in front of two King County Judges (i) in which the QAP was done prior to May 6, 2002(ii) (the date which the rules were changed to "fix" the state's problem). The King County Prosecuting Attorney's office has promised that if a recently argued motion is successful, then it will agree to suppress all test results in misdemeanor cases.(iii) A defense victory will lead to hundreds, if not thousands, of breath test results being suppressed.
This means that if you have a client who has a breath test in which the Quality Assurance Procedure was done before May 6, 2002, the breath test result may be suppressed from evidence. Investigate into whether the county breath test technician violated the protocols. If you have a client who was convicted or entered a plea of guilty in one of these cases, this is newly discovered evidence that could lead to the conviction being overturned or a withdrawal of a guilty plea.(iv) If you are currently representing someone in a breath test case, request the QAP records and check to see if the QAP was done before May 6, 2002 - if so, the breath test may be suppressed.
The defense argument for suppression is very simple - the state writes the rules, the rules are mandatory, the rules were not followed - the breath test should be suppressed.
The DUI statute requires that for a breath test to be admitted into evidence, the breath test must "be performed according to methods approved by the state toxicologist."(v) The Washington Administrative Code lays out the methods the state toxicologist has approved. WAC 448-13 et seq. One requirement is for the breath testing instrument to undergo a Quality Assurance Procedure (QAP) when either a new machine is being placed in the field, or on an annual basis. The administrative code requires that the QAP be performed according to protocols written by the State Toxicologist. Only after successfully completing the QAP is the instrument approved for use. WAC 448.13.110. Protocols for performing the QAP are published in Washington State Patrol Breath Test Section - Breath Test Program Policy and Procedure Manual.
The rules for certifying a breath test instrument have the force of law and must be strictly complied with. Since 1960, the Washington Supreme Court has repeatedly held that for a breath test to be admitted into evidence, the instrument must be "properly checked" and in "proper working order." Being properly checked is considered a foundational element to admitting the breath test. Courts look to see if the protocols as written in the administrative code have been followed. If the protocols have been followed, then the breath test comes into evidence. If the protocols have not been followed, the breath test is suppressed.(vi)
The general reasoning behind suppressing the breath test if a protocol has been violated appears to be the belief on the part of courts that the state toxicologist has written each protocol for a reason. If the requirement is unnecessary, then the protocol should be changed. While the protocol is in effect, it must be followed.(vii)
The Violated Rule
It is one of these QAP protocols that many Washington State Patrol Breath Test Technicians have admitted to violating. Several years ago, the technicians developed and used a method of testing for the chemical acetone. This method was not previously approved by the State Toxicologist.(viii)
Acetone is a chemical that can be found on the human breath. If the breath-testing instrument is not properly calibrated to check for acetone, this chemical could be confused with alcohol and lead to a falsely high reading of alcohol.
The protocol for checking for acetone requires that the machine pass an "interferant test." This test consists of putting acetone in the same simulator solution that was used to calibrate the machine and running a test to determine if the machine detects the acetone.(ix)
During preparation for litigation on a DUI case, recently retired King County Breath Test Technician Tony McElroy revealed that the King County Breath Test Section had been violating this protocol. The Breath Test Section had developed a different, unapproved, method for checking for acetone. This method consisted of using a solution different than that used for the calibration to run the interferant test.(x)
King County Breath Test Technicians have been candid in their testimony and have admitted, under oath, that the protocols were not followed. It is their contention that their failure to follow the protocols did not compromise the accuracy of test results.(xi)
Further investigation has lead to the discovery that some other breath test technicians around the state also violated the protocols in the same way.(xii)
The protocol was changed on May 6, 2002 so that the previously unapproved method is now approved. This means that any machine that has undergone a QAP after May 6th will be in compliance with the protocols.
Take a look at those old files - there may be a person in there who was convicted of DUI who would like to try and get their conviction or plea overturned. For your new clients, make sure to request the QAP records from the Washington State Patrol and see if the QAP was done before May 6, 2002. Then go and find out if the breath test technician in your county followed, or violated, the protocol.
It is rare for DUI defense attorneys to have both the facts and the law clearly on their side. This has been one of the situations. The state has candidly admitted its mistake. As it should, this admission has lead to the suppression of many breath test results. We should seize this opportunity to help our clients.
Bio for Geoffrey Burg
Geoffrey Burg is a criminal defense attorney practicing in Seattle Washington. His practice emphasizes DUI Defense.
i - City of Redmond v. Al-Nakib, Order Suppressing Breath Test, August 1, 2002 signed by King County District Court Judges David Admire and David Steiner.
ii - Washington State Patrol Breath Test Section Policy and Procedure Manual, May, 6, 2002.
iii - Correspondence between King County Deputy Prosecuting Attorney Mychal Schwartz and private attorneys Geoffrey Burg and Steve Hayne.
iv - CrRLJ 7.8(b)
v - RCW 46.61.506(3).
vi - State v. Baker, 56 Wn. 2d 860 (1960); State v. Straka, 116 Wn. 2d 859 (1991); State v. Walker,83 Wn. App. 89 (1996).
vii - See State v. Watson, 51 Wn. App. 947 (1988).
viii - Testimony by Sergeant Rod Gullberg, Trooper Brian Bowers, Trooper Ken Denton, Trooper Steve Luce in court and department of licensing proceedings - transcripts available from author.
ix - Washington State Patrol Breath Test Section Policy and Procedure Manual, May, 6, 2002, page 30. x - Conversations between the author and Tony McElroy.
xi - Testimony by Sergeant Rod Gullberg, Trooper Brian Bowers, Trooper Ken Denton, Trooper Steve Luce in court and department of licensing proceedings.
xii - This author is aware of the same, improper, technique being used in Island, San Jaun, Skagit, and Whatcom counties.