Skagit County Judges Require Scientific Standards In DUI Prosecutions.

Recently, Skagit County District Court Judges David Svaren and Warren Gilbert heard testimony from expert witnesses in support and in opposition to a defense challenge to the admissibility of breath tests due to the lack of adherence to scientific principles. Their ruling requires State Prosecutors to provide evidence of uncertainty in DUI prosecutions where a breath test was given. (Skagit Co Uncertainty Ruling) The defense expert witness, Ashley Emerey, a UW professor, testified that the generally accepted principles in the scientific community...


Recently, Skagit County District Court Judges David Svaren and Warren Gilbert heard testimony from expert witnesses in support and in opposition to a defense challenge to the admissibility of breath tests due to the lack of adherence to scientific principles. Their ruling requires State Prosecutors to provide evidence of uncertainty in DUI prosecutions where a breath test was given. (Skagit Co Uncertainty Ruling)

The defense expert witness, Ashley Emerey, a UW professor, testified that the generally accepted principles in the scientific community require a statement of “uncertainty” if the measurement is to be considered valid and reliable.  This additional information is required for any measurement.  Breath testing is a measurement and therefore requires a statement of uncertainty.

The current manager of the State Toxicology Lab, Jason Sklerov, did not deny the generally accepted requirement of uncertainty, nor did he disagree with almost all of Dr. Emery’s testimony.  However, what he did disagree with was the actual need to perform this calculation, despite the fact that the Lab currently does the calculation, it is only upon specific request.  Although the Judges denied the motion to suppress, the ruling requires the State to provide very specific information: “To be admissible, breath test results for alcohol must be stated in terms that include an estimate of uncertainty associated with the measurement.”

As a result, the State will now need to provide testimony that was previously glossed over and never provided to a jury.  Absent this information, a breath test in a DUI trial will not be provided to a jury because the evidence is deemed unreliable since it fails to follow scientific standards.

This challenge is being heard around the state and was recently argued here in Whatcom County earlier in June.  Due to the length of time it takes to provide testimony from Dr. Emery and Mr. Sklerov and court congestion, there was not enough time to finish so the hearing will reconvene on the 24th.  It is hoped that the afternoon will provide the necessary time to compete the hearing.  We anticipate a ruling within the first few weeks of July. Once the District Court ruling is issued there is the possibility that other courts in the County that handle DUI cases; Bellingham Municipal, Ferndale Municipal, Lynden Municipal, Blaine Municipal, and all other county municipal courts, will follow the ruling issued.  This will likely be done on a court by court basis, if each court choses to adopt the decision.

Some may feel that this is a defense tactic to find a loophole that allows those charged with DUI in Whatcom County to have their case dismissed: this is not the case.  Rather, what defense attorneys are seeking is that the State simply follow the rules of evidence and in so doing only present to a jury evidence that is in keeping with the science it is said to rely upon.  If the State only provides accurate and reliable information to a jury then we can be sure that there are no wrongful convictions especially when the states evidence is close to the legal limit of .08.  A statement of uncertianty in this type of breath testing evidence that the accused driver’s breath sample is just as likely UNDER the legal limit as it over the legal limit.  It is these types of misunderstood, yet important challenges that experienced and tenacious DUI lawyers are privy to.