3 Judge Panel Requires Breath Test Evidence To Comply With Scientific Standards.

3 Judge Panel Requires Breath Test Evidence To Comply With Scientific Standards.

Yesterday, September 22, 2010, a King County District Court 3-Judge panel found that breath tests, previously held to be inadmissible for any purposes, opened the door to permitting the test once again.  However, before they can be admitted the Judges required that uncertainty must be provided in discovery and to the jury or, upon motion, the breath test results will be suppressed.


Yesterday, September 22, 2010, a King County District Court 3-Judge panel found that breath tests, previously held to be inadmissible for any purposes, opened the door to permitting the test once again.  However, before they can be admitted the Judges required that uncertainty must be provided in discovery and to the jury or, upon motion, the breath test results will be suppressed.  In the Court’s Decision the Judge’s wrote:

For the reasons stated below, we hold that historic standards of justice – contained in the federal constitution, case authority and court rules – require that the State present breath test readings, both in pretrial discovery and at trial, showing their true value, rather than wrapped in such a way that a false picture is presented, either to the defendant or to the trier of fact.

Without this evidence a breath test is NOT admissible for the reasons stated in the 31 page decision for a very simple reason: “absent a confidence interval, a “final” breath-alcohol measurement is only a “best estimate” of a person’s breath-alcohol level.”

The press, the opposing prosecutor, and other commentators have pointed out that the ruling is not founded upon tradition rules regarding the breath test evidence and they are absolutely right.

This decision was predicated upon something much more significant and important: “standards of justice.”  This is not a novel concept and to those of us involved in the litigation for the past 5 years neither is this ruling.  In fact this ruling is very similar to other jurisdictions where this issue has been challenged and argued.

Most recently Island County District Court, and Skagit County District Court have both arrived as similar conclusions and in simple terms require the State to produce the “uncertainty” calculations because failure to do so shrouds the breath test result in the aura of science and juries can easily be misled.

Those who have opposed the notion of providing the uncertainty calculations do so because they say it doesn’t matter except in those cases where the breath test result is in the .08 range.  However, despite this concession, opponents of uncertainty were still unwilling to provide the information because in so doing, the limitations, the internal bias, and the sample bias are all exposed for what they are: a guess.

The Constitutions of this State, and of this Country, both entrench one of the most important rights we have that makes us a free society:  Proof beyond a reasonable doubt.  Failure to provide information that shows the machine’s fallibility, bias against subjects, and blood alcohol estimate that is scientifically unsound and only samples breath that is the size of a golf ball violates the principal.

Interestingly enough, it is the advanced nature of the State Toxicology Laboratory that has led to this ruling:  Since the lab has the technology and personnel with the necessary education to compute the uncertainty calculation the scientific community demands the production of this information so that the scientific evidence can be scrutinized.  The rule of law requires adherence to scientific principals established by the community when the Prosecution seeks to use the evidence to take a person’s liberty.  In fact, the 3 Judges recognized this principal and quite frankly set the record straight on page 2 of their ruling where they wrote:

[b]ecause the subject matter of this opinion is so heavily steeped in scientific principals and procedures which are largely unknown to the Judiciary and the Bar, the Court is including in the Findings explanations and definitions of many of the principals involved.

With this ruling now in the books it is expected that many jurisdictions around the state will follow this rule for purposes of determining whether a breath test in a DUI prosecution in any given county in Washington will in fact be presented to a jury.

Currently, in Whatcom County, this motion has been presented to the District Court in a DUI prosecution and both myself and the State Prosecutor as well as all criminal defense attorneys, more specifically DUI defense lawyers in the county await a ruling that is rumored to be close to being complete.  Also, in DUI cases prosecuted by the City of Bellingham, it has been agreed that the transcripts from this King County hearing will be relied upon for purposes of answering the same question of breath test admissibility.  As a result of this now public King County decision there is a possibility that the Bellingham City Prosecutors and DUI lawyers for all DUI breath test prosecutions will also agree to abide by this well reasoned ruling.

This ruling, and the rulings in Skagit, Island, and hopefully Whatcom Countys, is the product of years of litigation in various courts around the State.  Regardless of what your personal feelings are towards the crime of DUI, as a person who resides in this State and Country, these decisions are something to be proud of, these decisions are hallmarks of our system of justice that require the best possible evidence in seeking a conviction. All too often the rhetoric, the skewed statistics, and even the pain as a result of a crime having been committed gets in the way of system of rules that are required to be followed.  While I believe no one in their right mind advocates for drinking and driving per se and the best evidence I can ever give to avoid a DUI is not some gimmick, but rather it is simple: “Don’t drink and drive.”  But this does not change the fact that mixing the two is NOT necessarily a crime and is in fact legal in this State.

However, if you disagree with the law; Vote to change it; Move to a state or a Country where you agree with the law; but as long as this State permits drinking and then driving unless or until a person reaches, or exceeds the .08 limit, or is affected by their alcohol consumption, the State MUST and IS now is being held to the most important law that our system historically recognizes:  “standards of justice.” It is these standards together with scientific rules, regulations, and other principals of law combined with the intellectual honesty of Judges like these 3 in King County, the 2 in Skagit, and the 1 in Island County that makes this the best system of justice available. Bravo Judges.