Are DUI Breath Tests Solid Science, Or Just “Good Enough For Government Work?”

Last Friday the Bellingham Herald ran the following headline and story: Calibration error puts DUI tests across Alaska in doubt.  The article written by James Halpin originated from the Anchorage Daily News and states that “Nearly 2,500 breath-alcohol tests conducted in drunken-driving cases across the state over a period of nearly four years used equipment with flawed quality control standards.  As a result defense attorneys say the flawed practice calls into question the accuracy of the test.  State officials acknowledge...


Last Friday the Bellingham Herald ran the following headline and story: Calibration error puts DUI tests across Alaska in doubt.  The article written by James Halpin originated from the Anchorage Daily News and states that “Nearly 2,500 breath-alcohol tests conducted in drunken-driving cases across the state over a period of nearly four years used equipment with flawed quality control standards.  As a result defense attorneys say the flawed practice calls into question the accuracy of the test.  State officials acknowledge the error but say it did not affect the breath-alcohol level DUI suspects blew, only the quality-control checks that accompany every test.

Alaska State crime lab is not alone in this all too common habit of having a flawed quality control system, as they are the most recent state to have their flawed processes exposed.  In June 2010, in Washington DC there were at least 400 DUI convictions that were based upon the machines being improperly adjusted by city police. According to the D.C. Attorney General, the District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was. To put this in perspective that means a breath test of .07 is reported as a .084, thereby transforming legal behavior into illegal behavior. Or moving the result over the .15 limit where enhanced DUI penalty and punishment occurs. In July 2010 another lab was exposed in NC Crime Lab Buried Blood Evidence Memo.

In defense of their substandard work, lab technicians, employees, and managers, all have defended their work product by saying the same thing “it does not affect the results,” or it “does not affect the results enough to worry about.”  However in Washington State in 2008, when these types of problems were initially identified, they were also said to be “minor and insignificant,” but the Court found otherwise and ordered all tests suppressed- an extraordinary remedy.

Throughout the 2008 hearings this claim of insignificance was not only the first explanation offered but amid mounting evidence to the contrary it became the lab mantra.  After several days of testimony from lab personnel, WSP Breath test consultants, and Scientist from the UW, it was clear that problems were far from minor: improperly mixed solutions, flawed software issues, and employees vouching for the work of others with no such knowledge of the work or the quality, causing breathalyzers to function incorrectly and give false BAC readings.

Fortunately of for those accused of DUI based upon breath test evidence that was flawed, in this manner the Court was neither fooled by the mantra, nor forgiving.  The 3 judges presiding unanimously slammed the lab’s performance in a 29-page report and said that judges or juries could not rely on the accuracy of breath test evidence found that the work product was not defensible due to a “culture of compromise” and a “multiplicity of errors” at the lab. In the courts final few pages of the lengthy ruling it was held that the lab was found to demonstrate “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” in processing of solutions used to calibrate breath-testing equipment. Consequently, the court suppressed more than 18,000 breath tests at that time and the suppression order is ongoing until fixed.

The ruling required the Lab to remedy these deficiencies and when they had done so, the court will reconvene and address the breath test admissibility once again.  Apparently the significance of this WSP Tox Lab fiasco was not noticed by other crime labs as evidenced by the recent “minor” problems in Alaska and DC.

This first week of August the three Judge panel will sit once again in judgment of the work product of the Lab.  It is reported by the lab and prosecutors alike that the multitude of problems that were exposed more than 2 years ago have been fixed.  It is now up to the judicial panel to decide if the problems truly have been fixed.  However, with only such a short time having passed, it is hard to imagine that such severe problems identified have been fixed.  Consider the fact that;  “ethical lapses,”  and violations of scientific standards and lab standard operating procedures, all of which led to “The” State Toxicologist who was in charge of the breath testing program, to promptly resign, followed by the Lab’s manager, after she was discovered to have had others do her work for her, yet she signed off as though she completed the work herself, as well as, the toxicologist who most often did her work also resigned rather quickly after the 2008 hearing.  While these are the most prominent actors there was an exodus of other employees.

While the 2008 hearing sparked a large turnover in the lab as well as a public commitment to “do better,” the various improvements in the lab made to date, are still far from forensically sound.  Around Washington there have been hearings on this issue, with mixed results, but most recently, Skagit County did not suppress evidence but forced the state to provide information that was not previously ever presented to juries in DUI trials.  Currently Whatcom County DUI cases await a ruling on this very same issue after 3 days of testimony.

It may be tempting to blame DUI lawyers and attorneys alike for the states breath testing problems, such blame is misplaced.  The state and its actors have an obligation to put forward the best evidence possible in a trial.  They have an obligation to adhere, not only to their own standards, but more importantly, adhere to the generally accepted scientific standards of breath testing.  To do otherwise is a violation of rules but also a miscarriage of justice since innocent people may go to jail due to unsound evidence.

DUI is not a crime that engenders a sympathetic ear but neither is rape, nor murder and as we have seen far too many people have lost years of their lives due to a lack of adherence to science as evidenced by re-testing of evidence.  The defense bar stands as the last line of defense to guard against taking liberty without the best possible evidence.  All we ask is that evidence, in this case, breath testing evidence, be obtained in a reliable and scientific manner as the procedures, protocol, and science requires.  There is no hidden agenda.  Prove guilt beyond a reasonable doubt.  Nothing more,  nothing less.