WASHINGTON DUI & PERSONAL INJURY ATTORNEYS

Irregularities, lies and lack of following proper procedure in the State of Washington’s Toxicologist Department has led to the resignation of one toxicologist and the dismissal of hundreds of DUI charges because the BAC results for such arrests can not be deemed reliable. Below is the 2007 case which exposed the problem.

IN THE SOUTH DIVISION OF SNOHOMISH COUNTY DISTRICT COURT
STATE OF WASHINGTON

I. INTRODUCTION

This matter has come on regularly before the undersigned Judges of the above-entitled Court on Defendants’ Motions to Dismiss and alternative Motions to Suppress Breath Test Results. Defendants are represented by Ted Vosk and John Fox and the State is represented by Andrew Alsdorf and Cheryl Johnson. The Court heard testimony from WSP Trooper Elizabeth McCourt and has reviewed a voluminous stipulated record including transcripts from Skagit County Cases C669127, C698949, C699040 and PA 1728, additional transcripts from DOL matters and supplemental briefings and exhibits filed by both parties. This en banc Memorandum Decision follows a thorough review of the record and arguments by the parties.

The issues presented herein involve multiple defendants in criminal proceedings. All of these proceedings have been consolidated and, solely for ease of reference, this particular matter has been designated the lead case.

II. FACTS

Procedural irregularities have come to light regarding the preparation and certification of simulator solutions used in the administration of the State’s breath-alcohol testing program. A condensed description of breath-alcohol testing is necessary to understand the significance of these irregularities.

The DataMaster and the DataMaster CDM (collectively “DataMaster”) have been approved by the State Toxicologist to measure breath alcohol. One part of the multi-step procedure for a DataMaster breath test involves an external simulator solution. This external simulator solution is a significant control used to verify that the DataMaster is functioning properly during the testing process. Simulator solutions and quality assurance procedure solutions are prepared and certified by the State Toxicologist and provided to the State Patrol for use with the DataMaster.

The method for preparation and certification of the simulator solution is set by protocol adopted by the State Toxicologist. Once the simulator solution is prepared, it must be certified before use with a DataMaster. This protocol requires at least three analysts to perform a certification procedure. It has been the common practice for all available analysts to test simulator solutions to maximize the analysts’ availability for trial testimony. Again, by protocol, all of the data from all of the analysts testing the simulator solution must then be used to perform certification calculations.

The evidence in the record demonstrates that, beginning as early as 2003, Ann Marie Gordon did not participate in the testing of some simulator solutions, yet inexplicably signed certifications under penalty of perjury that she had indeed tested the simulator solutions. Ms Gordon is no longer in the employment of the State. Also demonstrated by the record are two software calculation errors that resulted in less than all of the analysts’ test results being included in the certification calculations.

Some additional irregularities were brought to our attention which do not impact our decision. A more complete recitation of these irregularities may be found through review of the voluminous evidentiary materials submitted by the parties.

III. ISSUES

Several issues have been raised by the Defendants. Additional issues have come to our attention during the course of reviewing the voluminous evidentiary record and arguments by the parties. The following issues are addressed herein:

3.1 Dismissal under CrRLJ 8.3.

3.2 Suppression under CrRLJ 8.3.

3.3 Suppression under RCW 46.61.506(3)

3.4 Suppression under RCW 46.61.506(4)

IV. ANALYSIS

4.1 Dismissal under CrRLJ 8.3

Defendants seeks dismissal under CrRLJ 8.3¹ asserting that the irregularities at the Toxicology Lab have so prejudiced the affected Defendants that none can receive a fair trial. CrRLJ 8.3 requires governmental misconduct that actually prejudices an accused’s right to a fair trial. State v. Baker, 78 Wn.2d 327 (1970), State v. Rhorich, 149 Wn.2d 647 (2003) The proponent must establish actual prejudice, not just the mere possibility of prejudice. State v. Norby, 122 Wn.2d 210 (1993).

The only argument advanced by Defendants in support of actual prejudice is a claim that all defendants will now need to hire an expert to raise these complex issues. While these irregularities are scientifically oriented, nothing in the record supports the assertion that raising these irregularities at trial is beyond the ability of competent defense counsel. Further, nothing in the record supports an inability to secure testimony at trial regarding these irregularities. This argument is speculative at best. Defendants have not carried their burden to establish actual prejudice precluding a fair trial and the Motion to Dismiss under CrRLJ 8.3 is denied.

4.2 Suppression under CrRLJ 8.3

Defendants assert that a suppression remedy exists under CrRLJ 8.3. No such remedy is found in our review of cited Washington Law. No authority has been provided to the Court to support this proposition. CrRLJ 8.3 provides for dismissal, not for suppression, as an extraordinary remedy for extraordinary conduct. Defendants’ Motion to Suppress under CrRLJ

8.3 is denied.

4.3 Suppression under RCW 46.61.506(3)

At oral argument, the State was asked to comment on the relationship between the irregularities at the Toxicology Lab and Section 3 of RCW 46.61.506². The State responded that

¹ CrRLJ 8.3 – DISMISSAL (a) On Motion of Prosecution. The court may, in its discretion, upon motion of the prosecuting authority setting forth the reasons therefore, dismiss a complaint or citation and notice. (b) On Motion of Court. The court, in the furtherance of justice after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial. The court shall set forth its reasons in a written order. ² RCW 46.61.506(3) Analysis of the person’s blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state the language in Section 3 should be read narrowly and applied only to the actual performance of the breath test pursuant to the parameters of Section 4. For reasons set forth below, we decline to adopt such a narrow reading of RCW 46.61.506(3). First, the language in Section 3 has remained virtually unchanged since 1969 when the people of the State of Washington passed Initiative 242³. Since 1969, this State has entrusted to the Toxicologist the responsibility to establish procedures for reliable breath-alcohol testing. In response to that statutory mandate, the Toxicologist has established policies and procedures for breath-alcohol testing which substantially pre-date the legislative adoption of RCW 46.61.506(4). Second, the Toxicologist’s own rules under Washington Administrative Code Chapter 448-16 speak to the requirement of procedures to ensure the integrity of the breath testing process. In WAC 448-16-010⁴, the Toxicologist notes the need to identify aspects of the operation of the DataMaster necessary for reliable testing. Under WAC 448-16-070⁵, the State Toxicologist is directed to establish procedures required to maintain the quality of the breath test toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. ³ Chemical analysis of the person’s blood or breath to be considered valid under the provisions of this section shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for that purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analysis, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. Chapter 1, Laws of 1969 (in part). ⁴ WAC 448-16-010 In RCW 46.61.506(4), the legislature establishes criteria for the admissibility of breath alcohol test evidence. RCW 46.61.506(3) authorizes and directs the state toxicologist to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits to those individuals. These rules are intended to implement the direction of the statute by 1) approving instruments and associated equipment capable of performing a reliable breath alcohol test, 2) identifying classifications of individuals who are to be examined for their competence to conduct such tests, and operate or maintain that equipment, and 3) identifying certain aspects of the operation of that equipment, necessary for reliable testing. (emphasis added) ⁵ WAC 448-16-070 The state toxicologist shall review, approve, and authorize such protocols of procedures and methods (of the toxicologist’s own promulgation or submitted by outside agencies or individuals for consideration) required in the administration of the breath test program. Such review, approval, and authorization will be so signified by a signed statement attached to each protocol, and kept on file by the Washington State Patrol. These protocols will be updated as necessary to maintain the quality of the breath test program. (emphasis added) program. Under WAC 448-16-030, only a certified simulator solution may be used with a simulator for evidential breath testing. Third, adopting a narrow reading as advocated by the State would render Criminal Rules for Courts of Limited Jurisdiction (CrRLJ) 6.13 superfluous. In order to harmonize CrRLJ 6.13 with RCW 46.61.506(3), the methods approved by the State Toxicologist must include the breath-alcohol analysis procedure of RCW 46.61.506(4) as well as quality assurance procedures for the DataMaster itself and the preparation and certification of simulator solutions. Finally, in the testimony taken during the Skagit County proceedings, each of the testifying analysts from the Toxicology Lab who are responsible for the preparation and certification of simulator solutions repeatedly discussed the need to follow the procedures established by the Toxicologist for the preparation and certification of simulator solutions. Accordingly, we find that a narrow reading of RCW 46.61.506(3) is not appropriate and the methods approved by the State Toxicologist addressed in RCW 46.61.506(3) include the preparation and certification of simulator solutions. At oral argument, the State also took the position that protocols established by the State Toxicologist, including those for simulator solutions, do not need to be followed to ensure reliable breath-alcohol analysis. In fact, the State takes the position that reliable breath test evidence is based solely on compliance with the requirements of RCW 46.61.506(4). That position is directly contrary to the historical inclusion of the language in RCW 46.61.506(3), thirty-eight years of case law, the Washington Administrative Code Chapter 448-16, CrRLJ 6.13, and the testimony of those professionals directly responsible for the reliability of the State’s breath testing program. Under RCW 46.61.506(3) a breath test is valid only if performed according to methods approved by the State Toxicologist. The protocol for the preparation of a simulator solution is one such method and compliance with that protocol is required to ensure reliable breath alcohol test results. One aspect of the protocol for preparation of a simulator solution requires the results of all analysts testing the solution to be included in calculations to determine certification. Two irregularities at the Toxicology Lab preclude compliance with the mandatory simulator solution protocol. First, the software used to perform the certification calculations did not include the results of all of the analysts. A simulator solution which is certified using less than all of the analysts’ tests results is not in compliance with the Toxicologist’s protocol. Under RCW 46.61.506(3) no valid breath test may result from a process which fails to comply with procedures required by the State Toxicologist. The State has argued that certification numbers have been re-calculated using all analysts’ results. If that is the case, our concerns regarding non-compliance with protocols may be assuaged regarding software issues. However, that evidence is not now before us. The second irregularity is more troubling. The evidence in the record supports a finding that Ann Marie Gordon did not participate in the testing of some simulator solutions, yet inexplicably signed certifications under penalty of perjury that she had indeed tested simulator solutions. If Ann Marie Gordon did indeed test the simulator solution, then her test results must be included in the certification calculations. If Ann Marie Gordon lied about testing the simulator solution, then her calculations cannot be used in the certification calculations. The State conceded at argument that it has no way to determine with any degree of certainty whether Ann Marie Gordon actually tested a specific simulator solution.

Where Ann Marie Gordon’s name appears as an analyst purporting to have tested a simulator solution, the State cannot establish that the simulator solution complies with the mandatory protocols. Under RCW 46.61.506(3) no valid breath test may result from a process which fails to comply with procedures required by the State Toxicologist. Given these factual predicates, Defendants’ motion to suppress the breath test result will be granted.

4.4 Suppression under RCW 46.61.506(4) Prima Facie Elements

RCW 46.61 506(4)(a)⁶ provides that a breath test is admissible if enumerated elements are established using a prima facie standard defined in RCW 46.61.506(4)(b)⁷. Defendants

2 RCW 46.61.506 (4)(a) A breath test performed by any instrument approved by the state toxicologist shall be admissible at trial or in an administrative proceeding if the prosecution or department produces prima facie evidence of the following: (i) The person who performed the test was authorized to perform such test by the state toxicologist; (ii) The person being tested did not vomit or have anything to eat, drink, or smoke for at least fifteen minutes prior to administration of the test; (iii) The person being tested did not have any foreign substances, not to include dental work, fixed or removable, in his or her mouth at the beginning of the fifteen-minute observation period; (iv) Prior to the start of the test, the temperature of the simulator solution as measured by a thermometer approved of by the state toxicologist was thirty-four degrees centigrade plus or minus 0.3 degrees centigrade; (v) The internal standard test resulted in the message “verified”; (vi) The two breath samples agree to within plus or minus ten percent of their mean to be determined by the method approved by the state toxicologist;

assert that the State cannot meet its prima facie burden regarding element (vii), addressing a simulator solution result occurring between .072 and .088 inclusive.

In this inquiry, we must apply the prima facie standard set forth as the clear intent of the legislature. Under RCW 46.61.506(b), the Court must assume the truth of the prosecution’s evidence and apply all reasonable inferences in a light most favorable to the prosecution.

The most favorable interpretation of the irregularities at the Toxicology Lab under this liberal prima facie standard cannot change the fact that Ann Marie Gordon did not participate in the testing of some simulator solutions, yet inexplicably signed certifications under penalty of perjury that she had indeed tested those simulator solutions. The most favorable interpretation under this liberal prima facie standard won’t change the State’s concession that they cannot prove with any degree of certainty whether Ann Marie Gordon did or did not actually test specific simulator solutions. Finally, the most favorable interpretation under this liberal prima facie standard will not change the fact that Toxicology Lab employees failed to follow the protocol mandated by the Toxicologist for preparation and certification of simulator solutions.

WAC 448-16-030(11) defines a “simulator” as a “device which when filled with a certified simulator solution, maintained at a known temperature, provides a vapor sample of known alcohol concentration.” With the irregularities identified herein, the solution prepared for a simulator cannot be certified because the Toxicology Lab has not complied with the mandatory protocol for doing so. According to the Toxicologist’s own protocols, only a certified simulator solution may be used with a simulator for the purpose of evidential breath testing.

We find that where Ann Marie Gordon’s name appears as one of the analysts purporting to have tested a given simulator solution for certification, the State cannot meet their prima facie requirement of a valid simulator solution result occurring between .072 and .088 inclusive.

(vii) The simulator external standard result did lie between .072 to .088 inclusive; and (viii) All blank tests gave results of .000. ⁷ RCW 46.61.506(4)(b) For purposes of this section, “prima facie evidence” is evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved. In assessing whether there is sufficient evidence of the foundational facts, the court or administrative tribunal is to assume the truth of the prosecution’s or department’s evidence and all reasonable inferences from it in a light most favorable to the prosecution or department.

Given these factual predicates, Defendants’ motions to suppress the breath test result will be granted.

Evidence Rule

Defendants assert that application of Evidence Rules 702⁸ also precludes the admissibility of any breath test results given the irregularities with the Toxicology Lab. In City of Fircrest v. Jensen, 158 Wn. 2d 384 (2006), our Supreme Court held that, while a breath test result may be admissible under RCW 46.61.506, “[t]here is nothing in the bill, either implicit or explicit, indicating a trial court could not use its discretion to exclude the test result under the rules of evidence.” Fircrest @ 399.

Defendants argue that irregularities in the certification of the simulator solution are so pervasive that the DataMaster no longer meets the threshold of being generally accepted in the relevant scientific community as reliable. Defendants have failed to meet their burden to establish that the irregularities at the Toxicology Lab have so eroded the foundational science as to make the outcome unreliable.

V. HOLDING

We are mindful of the guidance provided in Fircrest that “[t]he legislature has made clear its intention to make BAC test results fully admissible once the State has met its prima facie burden.” Fircrest @ 399. However, these irregularities from the Toxicology Lab regarding the preparation and certification of simulator solutions violate those protocol which the Toxicologist has found necessary to ensure reliable breath test results.

This language from Fircrest, the historical implications of RCW 46.61.506(3) and the recent addition of RCW 46.61.506(4) need to be harmonized. Together, these authorities should be read to mean that, given compliance with the methods approved by the Toxicologist, including the preparation of a certified simulator solution, accurate breath test readings will result from following the procedures set forth in RCW 46.61.506(4).

In those circumstances where Ann Marie Gordon’s name appears as one of the analysts who tested a simulator solution in the certification process, the State cannot establish that the ⁸ ER 702 - If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

simulator solution was certified according to methods approved by the State Toxicologist. RCW 46.61.506(3) requires such methods to be utilized in order have a valid test result. Additionally, the State cannot meet their prima facie burden regarding a simulator solution result pursuant to RCW 46.61.506(4)(vii) because the simulator solutions at issue here were certified in violation of the mandatory protocol approved by the State Toxicologist to ensure reliable breath alcohol testing. Under these circumstances, a motion to suppress the result of a breath test will be granted.

DATED this 30^th day of November, 2007.

Judge Timothy P. Ryan Judge Carol A. McRae Judge Jeffrey D. Goodwin