Island County Judge Requires Prosecution To Disclose DUI Breath Test “Bias & Uncertainty” Disclosed To Jury.

Recently, Island County Judge, P. Strow found in favor of all DUI defendant’s when he ordered the production of breath testing bias. The order for production came in lieu of a order to suppress the tests which is what the defense originally requested when the prosecution had not provided information and calculations regarding the limitations of breath testing.  Furthermore, it was ordered that such information be disclosed also to the jury during a DUI breath test trial. The ruling came in...


Recently, Island County Judge, P. Strow found in favor of all DUI defendant’s when he ordered the production of breath testing bias. The order for production came in lieu of a order to suppress the tests which is what the defense originally requested when the prosecution had not provided information and calculations regarding the limitations of breath testing.  Furthermore, it was ordered that such information be disclosed also to the jury during a DUI breath test trial. The ruling came in the case State v. Arnold and while it is a very straight forward concept, it is information that the State Toxicology Lab has been willing to do in only cases where the breath test was within a certain range. The information sought by the defense was, and is not, a technicality but rather a very real calculation regardless of what the breath test reading is.

In this state, the legal limit is .08, and there is an enhancement for punishment purposes when a driver provides a test at or above a .15.  The concept of uncertainty and the ruling from the court will require a jury to hear that a driver’s breath test may in fact be under a .08 or under a .15 when the test is close to those numbers.  Since the difference between .08 and .07 is the difference between a criminal conviction and a finding of Not Guilty.  Likewise, the difference between a .14 and .15 is equally important because a first offense DUI conviction with a breath test of .14 requires a person to spend 1 day in jail and suffer a 90 day license suspension, while a conviction for a .15 breath sample is 2 days of jail and a 1 year license revocation.  In the case of a driver who has a prior DUI conviction, the difference in mandatory sentencing is 15 days of jail, 30 days of Electronic Home Monitoring and a 2 years driver’s license revocation.  Whenever there is a test that is close to these legal limits and sentencing enhancements, the accuracy of the test and the testing instrument and program should be of paramount concern.

Currently, the Washington breath testing program lags behind most states in the nation with its technology and uses one of the oldest and most obsolete machine to determine a driver’s guilt or innocence and likewise before a case ever sees a jury trial, that same obsolete and problematic machine is used by the Department Of Licensing to suspend a persons driving privilege for at least 90 days.

As I have mentioned numerous times few if any people (including DUI lawyers) believe that DUI is a good thing, rather, what I advocate for is good proof, the highest standards in place for analyzing breath, and only the most current and reliable methods of the breath testing program to be in place.  There are such standards in place for DNA testing to solve the most reprehensible of crimes so why is DUI any different?  It should not be “easier” to convict a person of DUI simply because it is considered a lesser crime.  In fact, i think the opposite is true as evidenced by the outcry of citizens upset with the issue of DUI in this state and Country.  In fact many citizens are seeking harsher penalties and it is because of this likelihood that the evidence used to convict a person MUST scientifically reliable above reproach.  It is only then that we can be satisfied that the person was in fact guilty of the crime charged.

Law is no different than the rest of the world and as we gain a more reliable method, techniques, and technology to accurately determine a breath or blood sample we must embrace it.  Currently, the State Patrol has new cutting edge breath testing machines in storage, but has not yet implemented them for budgetary reasons. As a result, Constitutional right to a fair trial, proof beyond a reasonable doubt, and ultimately the guilt or innocence of some driver’s close to the limit, or close to a sentence enhancement falls prey to a budget rather than the best possible evidence.

Since there is a an ability to use and implement new methods and technology of breath testing to be certain beyond a reasonable doubt, there is also an increase in excluding those that are innocent of the crime. Currently, if a person provides a breath sample of .081 on any given breath test machine in this state, it is more likely that they are under the legal limit.  However, if a jury is not told this, if the bias and the “uncertainty” of the breath sample and procedure behind the test is not disclosed a jury will likely make a wrong decision as a result of being uninformed, and a conviction that cannot be undone by later more advanced testing cannot fix the problem.  It is only through intellectually honest rulings such as this one, where the legal system progress and advance to more reliable and accurate testing measures.  Currently King County awaits a ruling on this issue as does Whatcom County where Judges have heard the motion and testimony and are writing their rulings, while in Island and Skagit this issue is resolved.  These ruling come on the heels of poor science and testing procedures exposed 2 years ago while the State Toxicology Lab struggles to recover from a scathing ruling that suppressed breath tests in King County.  This ruling remains intact as of today’s date.

In the end what is sought is only the use of the best science be used to ensure what our state and federal constitutions demand: Proof Beyond A Reasonable Doubt.  This cannot be achieved unless  its counter part is enforced: It is better to allow 9 guilty persons go free than to wrongfully convict 1.   This is what the law is build upon.  This is what unpopular crimes like DUI require despite emotionally driven rational and rhetoric.