Washington State DUI Lawyers

Across Washington State, prosecutors in certain counties are no longer using breath tests as evidence against defendants in driving under the influence cases. This is due to a “lack of confidence” in the state lab, which is in charge of preparing solutions used to calibrate breath samples and breath testing machines. 

The credibility issues arose when Ann Marie Gordon, Washington State Toxicology Lab’s former manager, quit last July. There were allegations that Ms. Gordon lied about checking the lab’s breath test solutions to ensure their accuracy. Since then, DUI attorneys across the state have been challenging the validity of their client’s breath samples, and the ethics of the Washington State Patrol’s Toxicology Lab.

Last Wednesday, a panel of King County District Court judges ruled that because there were so many “ethical lapses” and errors resulting from flawed practices at the State Toxicology Lab, breath tests should not be admitted as evidence in court. This follows similar rulings made by courts in Spokane and Snohomish counties.

While the ruling by this panel of judges is not binding for the district’s other judges, their decision is expected to be very influential.

King County is the third county in the state to question the validity of the tests since reports of problems at the lab surfaced; however, its ruling is the most inclusive. In Skagit, judges ruled that there was no immediate evidence that the breath tests were invalid, and in Snohomish County and Spokane counties, judges threw out only certain tests, but did not allow wholesale suppression.

The panel’s decision was based on problems with the toxicology lab, such as the false certification of solutions that are used to verify breath tests, data that was mistakenly switched, the improper rejection of data, and using software that miscalculated data.

The judges said that prosecutors may try to have breath tests admitted in cases after it has been proven that the Toxicology Lab’s practices have been cleaned up.

For the time being, local law enforcement agents are still taking breath tests. However, prosecutors must use other evidence in court, such as blood tests or an officer’s testimony about the driver’s erratic driving or drunken behavior.

What do you think of the decision not to use breath test samples in court?

Below are several articles and links. More information to come.

http://www.theolympian.com/news/story/344039.html
http://seattlepi.nwsource.com/opinion/349586_labsed.html
http://seattlepi.nwsource.com/local/349345_duiruling31.html
http://seattlepi.nwsource.com/national/1110ap_drunken_driving_washington.html
http://seattlepi.nwsource.com/local/6420ap_wa_drunken_driving.html
http://www.columbian.com/news/localNews/2008/01/01312008_Results-of-breath-tests-ruled-not-valid.cfm
http://www.kitsapsun.com/news/2008/jan/31/dropping-breath-evidence-could-prevent-dui-case/

Clark County Ruling (PDF)
Order Granting Defendants Motion to Suppress (PDF)

The U.S. is known as the land of the free. Thanks to the Bill of Rights, we are allowed the freedom of speech, press and religion. The Bill of Rights also prohibits the federal government from depriving us of life, liberty, or property without due process of law.

In Washington State, it seems that one of our freedoms is being taken away from us– the ability to drive from Point A to Point B without government interference.  Governor Chris Gregoire recently proposed legislation that will allow law enforcement to set up sobriety checkpoints. There have been no sobriety checkpoints in Washington since the practice was declared unconstitutional by the Washington Supreme Court in 1988.

The proposal includes the following provisions:

· Jurisdictions would have to first apply for a warrant. When law enforcement agents apply, they will have to list the specific location, date, and time the checkpoint will be conducted.
· The public will be notified of the checkpoint in advance.
· All vehicles, or a designated sequence, such as every fifth vehicle, will be required to stop.
· The area where the checkpoint takes place must be proven to have a high number of crashes related to drunk driving.

Gregoire stated that sobriety checkpoints are an important tool for law enforcement to catch impaired drivers. She asked that residents be “team players” in the state’s fight against drunk driving by accepting the proposed interference on their driving rights. She also compared the traffic stops to security checkpoints at airports and courthouses.

Opponents of the bill argue that stopping drivers without suspecting them of wrongdoing is unconstitutional. Some state that while the intentions of the proposal may be good, the bill interferes with people’s rights.

They argue that roving patrols make more sense when it comes to nabbing drunk drivers, as well as protecting innocent people. These patrols only pull over motorists if their driving is suspicious. The State Patrol and local police have been increasing their use of drunken-driving emphasis patrols in recent years.

What do you think of the governor’s proposal? Is it worth it to ignore innocent people’s constitutional rights to make a couple of arrests?

In 2007, Washington State Patrol officers made a record number of DUI arrests in Snohomish County. Approximately 3,500 suspected drunk drivers were placed under arrest. That averages about 10 DUI arrests a day.

It seems that DUI has become the Salem Witch Hunt of the modern day. During the Salem Witch Hunt trials in 1692, 19 “witches” were killed based on “specter” evidence. In those times, claims of apparitions, only visible to the “victims,” was enough to convict the accused.

The science used to convict drivers of DUI has not come very far. The field sobriety tests that law enforcement agents use have not kept up with new technology and findings.

One of the best examples of this is the Horizontal Gaze Nystagmus test. This test is alleged to be 77% accurate in determining if a driver’s blood alcohol content is .10% or more. The problem with this test is that police officers are not ophthalmologists. They are not trained in diagnosing eye movements. There are 47 types of nystgamus. How can an officer tell if the eye movement observed is caused because the driver is drunk or has an eye or other physical condition?

The State Patrol has put more troopers on the road to look for impaired drivers in the past year. In November 2006, the patrol created a special division of troopers who work mostly weekend nights and work exclusively to arrest drunk drivers.

With the increased pressure on these troopers to find drunk drivers, it wouldn’t be any surprise that they are pulling over innocent people.

According to a study conducted in 1994, 21 sober individuals were asked to perform standard field sobriety tests such as the walk and turn and the one leg stand test. Forty-six percent of the officers determined that the subjects were intoxicated, based on the subject’s performance on the tests. These tests are unreliable, resulting in innocent people being convicted of driving under the influence.

Another problem with DUI arrests is that officers are hyper-vigilant over some stretches of road in Snohomish. Most drunk-driving arrests in the county were made on Highway 99 between South Everett and Lynnwood. Other popular patrolling areas include I-5, between the King-Snohomish County line and Highway 9 in Lake Stevens. Officers are on the lookout for drunk drivers, and may arrest innocent people in the process.

Governor Gregoire announced today that she will ask the 2008 legislature to pass legislation authorizing roadblocks in Washington. Washington is one of just 11 states that prohibit roadblocks as unconstitutional under our state constitution. If the legislation passes, will our courts uphold our constitution? Or, will the courts join in the witch hunt, gut the constitutional protections our state’s founders provided for the protection of our liberties, and cause all drivers, including those innocent of any offense to be stopped, delayed and investigated without probable cause?

How many innocent people will be arrested based on unreliable tests and unconstitutional roadblocks before the people demand changes to ensure only the guilty are convicted?

It has recently been reported that more and more police officers are using pre-written arrest reports in DUI cases. Rather than writing the report based on the specific facts of the person’s arrest, officers are writing “template” reports that include standard DUI driving observations, physical symptoms, and field sobriety test results.   Using computers to write DUI reports, the officers “cut and paste” from prior reports with similar facts.

In one state, dozens of DUI suspects may go free due to these pre-written police reports. One of the reports in these cases states that the suspect “stumbled slightly when walking and swayed moderately…with a three inch to five inch orbital rotation/sway.” There were also at least ten other reports, written by the same officer over a six-month period, that use the exact same wording. This exact phrase was also found on reports written by other officers.

Another officer would write in his reports that he noticed the “strong odor of an alcoholic beverage within the interior of my cab.” He used this phrase over and over again in his reports. The problem is, he used this phrase whether the suspect had a blood alcohol content of .02 or .17. This phrase was also found on 11 other reports written by a different officer, no matter how much alcohol the suspect had to drink.

While this is all problematic, it is even worse when the DUI case goes to trial. Because officers cannot remember all the details of a given case, they must read their own reports before taking the stand. The officer then bases his/her testimony on what they read in the report. If the report is pre-written, the officer is testifying about a fictional case. Some legal experts believe that this amounts to perjury.  In Washington, at least one law enforcement officer lost his job for “cutting and pasting” and all of his pending DUI cases were dismissed.

It is distressing to think that innocent people can be punished because police officers do not take the time to write their own arrest reports. These pre-written police reports should not be tolerated by the Law Enforcement Chiefs or the Prosecuting Attorney’s office. A policy should be in place to prohibit the use of these “Xeroxed” police reports.

What do you think of the use of these reports?

Tracy Johnson of the Seattle PI reported that newly elected King County Prosecutor Dan Satterberg has decided there would be “little to be accomplished by any criminal prosecution” of Ann Marie Gordon, who allegedly swore she tested lab solutions she had not tested, because, says Satterberg, “the public has not suffered any harm.”  This is not the case! Ironically, because of Gordon’s actions, my firm along with Ted Vosk and other attorneys, have focused increased scrutiny on the toxicology lab.   

What we have found is even more troubling than Gordon’s alleged perjury.  We now have serious concerns that lead us to question the efficacy of the breath test program as it now exists.  What we are finding is that the simulator solutions that are intended to calibrate breath test machines may not have been properly tested to be within required limits.  This can be analogized to a bathroom scale.  You have to be sure it is set to zero before you step on it to accurately measure your weight.  Now if you wanted to weigh five pounds less, you could set the scale back five pounds, and you could “fool” yourself into believing you had lost five pounds. 

Similarly, the breathalyzer machine (DataMaster) has to be told what a .08 “looks like.”  This is accomplished “calibrating” it–blowing vapor from the solution that the toxicology lab mixes and tests and supposedly “scientists” “certify” under oath that the solution is within a certain range.  But if the entire methodology for testing and certifying these solutions is faulty, and the scientists who prepare and test the solutions are sloppy and careless and do not apply appropriate calculations to be sure the solutions are within the necessary certain range, machines are “calibrated” with solutions that don’t meet standards. 

When this happens, innocent people will be wrongly convicted of DUI.  So help me to understand–in order to cover-up for government-employed sloppy scientists and lazy liars and workers who don’t know how to calculate mathematical equations but sign and certify under penalty of perjury they do, INNOCENT PEOPLE MUST BE CONVICTED OF DUI?  So that we can all pretend that breath test machines are fine and good because to face reality is too scary?  So we let someone, not just anyone, but the Lab Manager, who admitted she signed statements under oath, under penalty of perjury stating that she tested solutions, solutions that she did not test, get a walk?  While people innocent of DUI get convicted?  This is just WRONG.

In July, the manager of the Washington State Patrol Toxicology Lab, Ann Marie Gordon, resigned under allegations that she repeatedly signed statements, under penalty of perjury, that she had personally “examined and tested” alcohol simulator solutions for the DataMaster breath test machine.  In fact, someone else did the testing for her.  This shocking revelation has thrown the courts, the Department of Licensing, prosecutors and defense attorneys into a state of confusion.

Simulator solutions prepared by the Toxicology Lab are distributed statewide. Their purpose is critical:  they provide an internal check that the machine was functioning properly during a person’s breath test.  A properly constituted and tested simulator solution is necessary for a valid and reliable breath test.
  
It is believed that an employee blew the whistle on Gordon, first in March of 2007, with an anonymous call to the State Patrol stating that “simulator solutions are being falsified as far as the certification.”  Ironically, Gordon and Ed Formoso, the Lab’s “Quality Assurance Manager” teamed up to “investigate” the allegations and submitted a report in April that indicated all was well with the solutions, but ignored the falsification issue. 

Formoso was later interviewed by the author and admitted that he had tested solutions for Gordon.  Like foxes in the hen house, Gordon and Formoso were placed in charge of investigating their own deceit on the citizens of this state. On July 11, WSP received another, more specific anonymous call alleging Gordon had falsified solution certification forms.    

Her departure from the crime lab under the shadow of impropriety is one of several in the past few years: a chemist who snorted heroin he stole from the evidence he was testing; a senior DNA analyst who lied in order to ensure a rape conviction; another who was fired for helping to wrongfully convict a man of rape—and for sloppy drug analysis work.

Documents from Gordon’s personnel file paint a picture of cold ambition. Rising from lab analyst to lab manager in just two years, she was commended for her “interactions with our clients and customers,” for being “attentive to their needs” and “responsive,” yet her often caustic tendencies created a toxic environment for laboratory staff.

According to WSP documents, she was admonished for being moody, dismissive and demeaning to her staff, creating an environment “verging on hostile.”  She allegedly called a member of her staff a “drug addict” on several occasions, and was told that her “inappropriate use of profanity” was unacceptable.  The documents indicate she was reprimanded in writing for favoritism of some, while others were “ridiculed,” and the target of “derisive comments.” Reportedly, when angry, she would “invade their personal space” and threaten new employees on probation that “their jobs were in her hands.”

Why should we care about how our state laboratories are being managed?  It is elementary—leadership creates the culture in which scientists must operate. When leadership governs with fear and intimidation, protecting one’s job is a daily concern.  Perhaps this is why it took so long for someone to report Gordon’s alleged perjury, which may have gone on for several years.  In interviews with several lab analysts, none recalled ever seeing Gordon actually test the solution—except one who worked for the lab since 1998 who stated she had not seen Gordon test samples “recently.”

Combine this culture of fear with the overt message to lab employees that it is acceptable to sign, under oath, that you tested something when you didn’t, and a very sinister situation emerges.  Be afraid, citizens.  Be very afraid.

Some take the position that simply excluding the results of the testing Formoso did for Gordon remedies the problem and renders these cases immune from defense challenges.  But doing so merely ratifies her alleged misconduct and creates an environment that permits government deception, as long as it does not affect the accuracy of the results.  This “so what” attitude sends a loud message to all government witnesses: you can lie under oath when a conviction is at stake and it won’t affect the outcome.  

When government scientists become mere cops in white coats, our justice system is not just flawed, it is broken. Perhaps this is to be expected when the forensic scientists who work in our crime lab are conditioned to see prosecutors as “clients and customers” and are commended for being “attentive to their needs.”  Prosecutors are not our labs’ clients and customers.  The citizens of the state of Washington are, and as such, they deserve, and should demand, unerring honesty, integrity and professional responsibility from those who serve them.

The Gordon fiasco is a wake-up call we cannot sleep through. To do nothing allows a foul decay to infect our justice system—the idea that the ends justify the means. The integrity of justice is more important than drunk-driving convictions.  If we respond with a wink and nod along with a slap on the wrist there will be no deterrence and government witnesses will have a license to lie.  Only our courts can send the strongest message: lying under oath is not acceptable. Only if they do, will we recover from this breach of trust.

What do you think?

Have you been listening to the radio lately? You may have heard radio spots aimed at reducing drinking and driving among teenagers.

Washington State Attorney General Rob McKenna came up with these announcements to open dialogue between parents and teens about the importance of not drinking and driving.

This new campaign was launched in September and set to run through October. The 30-second radio public service announcements are aimed at preventing drunk driving as well as underage drinking. These announcements are timed to coincide with the back-to-school season, and will air more than 1,600 times across the entire state.

The attorney general says that this ad campaign is important in reminding adults that we all play a part in preventing drunk driving, and that drunk-driving crashes are 100 percent preventable. One of the easiest and most effective ways to prevent these crashes is by designating a driver. By selecting a designated driver, Washingtonians are joining the millions of people who have been or used a designated driver nationwide.

The attorney general also explained that the beginning of the school year is an opportune time for parents to talk with their children about drinking.

Two of the radio spots are aimed at reminding parents about the importance of discussing underage and abusive drinking with their teenage and college-age children. The announcements also urge parents to refuse hosting underage parties with alcohol at their home.

According to one source, two-thirds of teens that drink get the alcohol from their parents or other adults. Another source has reported that the majority of teens, ages 13-17, say that their parents are the number one influence on their decisions whether to drink or not.

Recent government studies have shown that underage drinking is on the decline. One report funded the federal government shows that 83 percent of 12-to-17-year-olds do not drink. That number is slightly higher in Washington, at 84 percent. Teen drunk-driving fatalities are down 67 percent nationwide and 63 percent statewide since 1982, according to the DOT.

How will these radio spots affect the way that you talk to your children about drinking? Are they effective?