A Slight Omission Leads to Injustice

There are those who call it nitpicking when DUI defense attorneys ask judges to throw a breath test out of court for what looks like a trivial error in approved scientific protocol and procedure. Preventing injustice is not nitpicking. When scientific evidence is offered to punish a citizen, it is critical to know whether the state has strictly complied with approved procedure. If the state fails to use proper scientific procedures, a small error can be magnified and real harm can be done to innocent citizens. A little background: Washington’s “per se” DUI law is violated when the breath test readings are .080 or higher. The “per se” law is not violated when the reading is .079. In addition, Washington has “administrative suspension” of the driver’s license, which means that the Department of Licensing quickly suspends the license if the breath test reading is .08 or higher even if that driver is later acquitted of the DUI charge. The driver whose test is .080 loses his license administratively for 90 days, but the driver whose reading is .079 does not. There is no administrative license suspension if the reading is .079. The breath test is the critical piece of evidence used to make such decisions. Because of this, we DUI defense attorneys have repeatedly gone to court asking the judges to hold the state authorities to a strict standard: Comply with scientific procedures, or the breath test cannot be used in court. Judges understood this argument and threw breath test evidence out of court when it was shown that the state did not comply with acknowledged procedures (written by the state’s own scientists) regarding the setup, maintenance, and administration of a breath test. Prosecutors, tired of losing these battles, went to the legislature and in 2004 got a law passed stating that judges could no longer throw out breath test evidence for “technical” reasons. The law was passed on the premise offered by the prosecutors to the legislature that every defense motion to suppress was just nitpicking and had nothing to do with justice. If the crime of nitpicking is committed when we ask courts to require proof of good science before sending someone to jail, then count me guilty of nitpicking. Innocent citizens do suffer when sloppy work is tolerated. We have a real-life example that has only come to light recently. In August of this year, the Washington State Patrol Toxicology Laboratory released a statement regarding an “error” in calculating simulator solutions. These solutions are used in breath testing to calibrate the DataMaster breath testing machine used to test DUI suspects. The solution is also supposed to confirm that the readings are accurate. When the solutions are mixed, they are tested by numerous toxicologists in the lab before being sent out for use in breath testing of accused citizens. The toxicologists would test the solution, then put the readings into a computer which has an Excel-like program that averages the readings. The computer program was originally set up to average the readings of twelve toxicologists and it worked fine so long as there were no more than twelve toxicologists. Then, the lab grew and more toxicologists came on board. Eventually up to sixteen toxicologists tested the solutions and put their readings in the computer to be averaged. However, the computer program was never updated to include sixteen users; it only averaged the readings from the first twelve. At the same time, everybody in the lab trusted the program. Nobody checked it. Nobody thought to do what science would have required - to check the math by hand, at least one time, to see if the program was actually calculating the readings correctly. Because of this, the precise alcohol reading of the solutions used to calibrate breath testing machines was incorrectly reported for two years (2005-2007) until the problem was finally discovered. As a result, the calibration of some of these breath testing machines was “slightly” off. The problem is that under our law, a “slight” difference in the breath test result is the difference between punishment and freedom. A layperson probably would not have thought to hand-check the accuracy of the calculations made by the program when additional toxicologists’ readings were added, but a scientist is required to do so. The consequences of this misplaced confidence in a computer program were very real for a number of citizens in our state. According to the Toxicology Laboratory, four DUI suspects were administered breath tests that erroneously high in that the breath test ticket reading were “.080” but they should have read “.079.” What does this mean? This “slight” error means that these four citizens each lost their driver’s licenses for 90 days, but the licenses would not have been suspended if the breath test reading had been accurate. This is a real-life miscarriage of justice. Who were these people? We don’t know. Their driver’s licenses were undoubtedly important to them. They may have been real estate agents, or they may have been stay at home moms. Whoever they were, their lives were undoubtedly turned upside down for the 90 days they were without transportation because the breath tests were wrong. The breath tests were wrong because nobody in the Toxicology Laboratory bothered to hand check the computer program used in making the solutions to determine whether it was working correctly. This situation serves as a case study of injustice occurring when a system relies upon breath test results to penalize citizens. It is true that the majority of citizens accused of DUI were not materially impacted by the simulator solution problems. But ours is a system of justice for individuals. In this country, we don’t say, “Justice for almost everybody.” We say “... And justice for all.” If the strict adherence to scientific procedure in breath testing is not mandated, real people will inevitably suffer injustice.