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Wednesday, October 24, 2007 - Page updated at 12:00 AM

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Breath test evidence badly handled but still valid, judges say

The Associated Press

Despite misconduct at the State Patrol's toxicology lab, results of breath tests may be used against dozens of drunken-driving defendants in Skagit County, two judges ruled Tuesday — a decision that could weigh heavily on judges considering the issue around the state.

Skagit County District Court Judges David Svaren and Warren Gilbert strongly criticized the lab in their opinion, and accused its director, Dr. Barry Logan, of misconduct, saying they did not believe his claim that he didn't know a lab manager was falsely certifying test results.

But in the 51 DUI cases at issue, there was no evidence that the misconduct affected the results of breath tests given to the defendants, the judges said. They noted that the defendants are free to attack the credibility of the tests in court.

"When seeking dismissal of charges or suppression of evidence, it is not enough to merely show that there was governmental misconduct or sloppy procedures," Svaren and Gilbert wrote. "The misconduct or procedures must detrimentally affect the person seeking the remedy."

The State Patrol welcomed the ruling and said that while errors were made, they directly affected only eight cases in Spokane County. Chief John Batiste continues to have confidence in the lab and in Logan, and there is no evidence Logan intentionally did anything wrong, said Patrol Capt. Jeff DeVere.

The ruling followed three days of testimony earlier this month, and defense attorneys plan to submit the transcript of the hearing to other judges around the state in cases where the admissibility of the breath tests is being challenged. Such hearings are scheduled for Oct. 31 in Snohomish County and Nov. 19 in King County. Those judges are not bound by the Skagit County ruling.

"I'm pleased with the findings there was misconduct," said Bellevue lawyer Bill Bowman, who represented many of the Skagit defendants. "I'm obviously disappointed the court didn't hold the toxicology lab accountable. I'm concerned the message is you can engage in fraudulent activity and be sloppy in the results you produce, but there is no consequence for that."

Bowman said he would probably file a motion for reconsideration with the court.

The controversy stemmed from allegations that a former toxicology lab manager, Ann Marie Gordon, falsely claimed to have verified solutions used for breath testing in drunken-driving cases. Gordon resigned in July after a whistle-blower reported that she had falsely signed affidavits saying she had tested the quality-assurance samples, when in reality someone else had performed those tests.

Copyright © 2007 The Seattle Times Company

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