Kirkland DUIs Getting Extra Attention from Washington State Patrol

State Patrol follows suggestions for lab fixes
New toxicologist is appointed
By TRACY JOHNSON
P-I REPORTER

The State Patrol announced Thursday that it has followed 23 recommendations of three recent audits aimed at fixing problems at its toxicology lab, and it is working to implement 16 more.

At the same time, Fiona Couper has been appointed to take over as the new state toxicologist. She most recently served as chief toxicologist in Washington, D.C.

The move is a reflection of the heavy workload of current toxicologist Barry Logan, who will continue to oversee the state's toxicology and crime labs but will no longer run the toxicology lab on a daily basis, State Patrol spokesman Bob Calkins said.

The patrol underwent three audits after toxicology lab problems surfaced that have threatened drunken-driving prosecutions around the state.

Last summer, toxicology lab manager Ann Marie Gordon was accused of signing off on work she hadn't done. Other problems came to light involving the same issue: how the lab tests an ethanol-water solution that is used to make sure the breath-test machines give accurate readings.

Last week, three King County District Court judges ruled that the toxicology lab would need to show that some of its problems had been fixed before they would accept any breath tests as evidence in DUI cases.

Other problems surfaced last year when lab officials acknowledged that samples of a vehicular-homicide suspect's blood -- key evidence that he was drunk -- had been inadvertently destroyed.

The auditors made recommendations to improve various practices, including how evidence is handled, who can have access to storage areas, how tests are recorded and how peers should check the accuracy of each other's data.

"Our goal is to make a good laboratory better," State Patrol Chief John Batiste said. "We will not stop with just these audits. We will continue to look for ways to improve our processes and improve the product that we provide to the criminal justice system."

Lab employees are now receiving weekly training to make sure they're aware of the latest procedures to be followed.,

Gov. Chris Gregoire has included in her 2008 budget the funding for additional staff to ensure accountability, Calkins said.

P-I reporter Tracy Johnson can be reached at 206-467-5942 or tracyjohnson@seattlepi.com.

Keeping drunken drivers off the road
By JOE COPELAND
P-I COLUMNIST

Conrad Thompson doesn't get how the state thinks it can protect innocent people on the roads while neglecting to obtain accurate assessments of those who drive under the influence. It's a puzzle that is becoming increasingly frustrating.

For at least five years, some state legislators have tried to close the dangerous loopholes that help many DUI offenders and defendants escape court-ordered treatment or receive inadequate treatment based on potentially flawed chemical-dependency assessments. The lawmakers want what Thompson, a retired probation officer, has been advocating: a statewide protocol for conducting the evaluations.

Assessments generally would have to be based on a drug test, a full criminal history for defendants and information about their blood-alcohol content when arrested or a review of the police report that would show the circumstances of their refusal to take a breath test. As valuable as treatment in lieu of jail time or as part of a deferred prosecution can be, the lawmakers don't want courts basing treatment requirements on wishful thinking.

The legislators, though, continue to run into obstacles about the supposed "costs" of improving road safety, society and the health of those with driving and substance abuse problems. Every time a bill make progress, it ends up stuck again.

Part of it is inertia and the way that even a modest cost can stall lower-profile legislation. There has also been debate about whether the protocols should be written into law or developed administratively within the Department of Social and Health Services. At times in the past 12 months or so, Thompson (who once held a state position overseeing nursing homes) has speculated pointedly about bureaucratic complacency or a too-comfortable state relationship with some treatment centers. But he inevitably returns to generating support for the kind of legislating he long ago advanced as a Whatcom County commissioner.

Thompson and Greg Bauer, an executive director of a recovery program, wrote a powerful guest column in the P-I in late 2004. Ever since, the issue has sparked somewhat the same frustration for the P-I Editorial Board as for Thompson, who knows quite a bit about legislation both from the nursing home job he held during a time of serious state reforms and from a stint as a Whatcom County commissioner in the late 1970s. I don't think the inaction is a matter of ill will. The DSHS folks are officially neutral, but have qualms about the finality of a law as opposed to a regulation. A legislative policy person for a treatment providers' association worries about financial realities. But none of what I've heard adds up to a good reason to duck a common-sense law.

More than anything, it's easy to believe Snohomish County Prosecutor Janice Ellis has captured the essence of Olympia's anything-but-Olympic inaction on bills spearheaded by Snohomish County Republican Rep. Kirk Pearson with valuable help from Al O'Brien and other Democrats. Ellis said, "Like so many bills in Olympia, this one has never, for some reason, grabbed the attention of the Legislature."

With so much to consider, lawmakers work on good bills but their efforts get lost. But this isn't just a good idea. In a society where everyone professes to understand the extent of denial among substance abusers, it should be an obvious corollary that we require treatment plans to be based on more than skilled liars' and deniers' well-spun versions of personal histories.

In a recent letter to a state official, Thompson called the current lack of state rules for objective assessments "almost unbelievable." Thompson added, "Denial is one of the symptoms of addiction, and to base the (evaluation of) the need for treatment on the DUI offender's word has ominous ramifications for safety." For the public, that means people may be getting their licenses back and returning to driving without conquering their substance problems. For the individual who needs help, the results can range from deadly to wasted time and missed opportunities to recover and rebuild family ties.

Knowing the effectiveness of clearly defined requirements for drug and alcohol assessments is one of the things that drives Thompson. Many district and municipal courts, including in King County, have set clear standards for assessments. Thompson worked with a judge who gave him full responsibility for determining whether an assessment had been conducted adequately.

Ellis, as chairwoman of the Governor's Council on Substance Abuse, recently had Thompson talk to members, who she figures may join the push if HB1340 fails again. But Ellis is optimistic, in part because Gov. Chris Gregoire tossed another drunken-driving issue before the Legislature: the high-profile proposal for sobriety checkpoints.

If lawmakers don't act on the checkpoints, they may look for another way to show their concern. Or maybe HB 1340 will benefit just from the governor forcing discussion of the need to do more about drunken driving. It should. Pearson has been trying since the 2003 Legislature. In 2005, Democratic Rep. Pat Lantz pushed a version through her Judiciary Committee. Despite a fiscal note on state expenses, the measure almost reached a floor vote. Last year, prospects were looking up when Judiciary passed HB1340. But, based on DSHS information, the measure was again tagged with a fiscal note, sidetracking it to the Appropriations Committee.

It's encouraging, though, that Rep. Helen Sommers, that committee's chairwoman, said last week she expects to schedule a hearing on it. Although the fiscal figures appear inflated (they are based on an estimate of $25 per urinalysis for what a number of providers say is a $6 test), the calculation suggests the general fund might pay $168,000 to cover costs for people who qualify for help with legal costs.

If lives weren't at stake, it would almost be a humorous hang-up over relative pennies. As an editorial in The Herald of Everett last weekend put it, "Even the inflated cost didn't justify holding this bill back; the real cost certainly doesn't. Repeat DUI offenders are an outrage."

For his part, though, Pearson sounded discouraged in a recent phone conversation. He wants Gregoire or her office to intervene with the DSHS' substance abuse division to end what he sees as game-playing attempts to kill the bill. Otherwise, he doesn't see any movement in the Legislature.

At the end of the day, perhaps the governor will intervene. The measure is perfectly in line with her DUI push and her own history as a clear-eyed state attorney general familiar with all kinds of phony accounts of personal conduct. But faced with a clear chance to better protect the public, maybe the Legislature can find its way without the governor's intervention.

Thompson, who retired as a probation officer three years ago, admits he isn't feeling optimistic about this session. But he adds, "Who knows? It's an election year." He notes news coverage of major traffic accidents, including deaths involving wrong-way vehicles where drugs or alcohol are usually a factor.

Either way, he said, he's motivated to keep fighting. As chairman of a Snohomish County DUI task force, he attends ceremonies where the names of drunk drivers' victims are added to a memorial wall in a park. "You see the devastation and the lives lost and the families that are suffering," he said.

Though he's talked about it numerous times, Thompson still strikes a note of incredulity as he ponders a system with all sorts of strong points that often relies on "self-reporting." Then he says, "We are just going to keep working on it until somebody lets common sense prevail."

Joe Copeland is an editorial writer and member of the P-I Editorial Board. E-mail: joecopeland@seattlepi.com.

Toxicology Lab: Above suspicion
SEATTLE POST-INTELLIGENCER EDITORIAL BOARD

Fighting drunken driving is a hard enough battle as it is because of the nature of the issue itself, of just how an intoxicated person ends up driving. Some merely miscalculate the effect the last drink would have while others are alcoholics and repeat offenders. Dealing with the problem effectively, in part, requires that those who break the law and endanger their lives as well as the lives of others feel the full weight of the law. Sad to say, that isn't the case in King County, because the State Patrol's toxicology lab has been deemed unreliable.

Because of a maddening set of circumstances, which include "ethical problems, scientific errors and carelessness," three District Court judges tossed out the results of DUI tests processed in the lab, saying they couldn't be used in court. What else could they do, when "literally thousands of breath tests performed in recent years were affected through a multiplicity of errors in the toxicology lab"? That means that some drunken drivers will skate (others already have) and that there's a chance that innocent people were punished. No justice system can operate on faulty evidence.

The state's toxicology work needs to be credible and above such suspicions, and, as it stands, the man heading the lab, state toxicologist Barry Logan, is in the hot seat. Whatever problems exist in the lab (staffing issues, weak protocols, etc.), if he can't make the needed changes, Logan needs to be replaced by someone who can.

Court throws out DUI breath tests
Other judges not bound to ruling condemning lab
By TRACY JOHNSON
P-I REPORTER

Breath tests can't be used against many King County drunken-driving suspects until the State Patrol's toxicology lab can show that it has fixed ethical problems, scientific errors and carelessness that have called its work into question.

On Wednesday, three District Court judges found so many problems at the lab that they threw out the breath-test readings for eight drunken-driving suspects -- a decision that could make it easier for drivers to avoid DUI raps around King County.

In the joint ruling, the judges found that "literally thousands of breath tests performed in recent years were affected through a multiplicity of errors in the toxicology lab."

Bellevue defense attorney Ted Vosk, one of several attorneys who argued the case, said the lab -- where scientists' work is critical to many drunken-driving prosecutions -- has lost all credibility.

"This is not about winning a DUI case," he said. "This is about right and wrong."

One hundred or more other DUI cases in King County District Court had been on hold for Wednesday's ruling. Defense attorneys say the decision could ultimately affect thousands of cases.

The other 12 King County judges who handle DUIs aren't bound to adopt the ruling, but the case is expected to weigh heavily on what they decide in their cases.

Mark Larson, King County's chief criminal deputy prosecutor, said his office will work with the lab to show the court that improvements have been made so that breath-test results can be used as evidence once again.

Until then, he said, "we are fully prepared to prosecute impaired-driving cases, with or without breath-test results" by using other evidence, such as suspects' erratic driving, what they told police and their struggles to perform sobriety tests.

In the 29-page ruling, Judges David Steiner, Darrell Phillipson and Mark Chow listed a litany of lab errors involving an ethanol-water solution that needs to be precisely mixed to make sure that breath-test machines are accurate.

They said various problems affected solutions that were used for more than 18,000 breath tests, and they found that the lab's work simply could not be relied on by judges or juries.

"Simply stated," they wrote, "without the reliable evidence that a correctly functioning breath test instrument can provide, the discovery of the truth in DUI cases suffers; the innocent may be wrongly convicted, and the guilty may go free."

The judges cited concerns with the lab's scientific standards, its limited ability to catch mistakes and its failure in "pursuing an ethical standard which should be reasonably expected of an agency that operates as an integral part of the criminal justice system."

The judges found a culture of cutting corners and criticized state Toxicologist Barry Logan's handling of two anonymous tips last year that eventually revealed wrongdoing at the lab.

In what the judges called "a situation screaming with irony," Logan assigned lab manager Ann Marie Gordon to investigate the first tip -- the very person who was later found to have lied about testing the solution when she hadn't.

The judges said questions about how her actions were investigated "cast a long shadow over Dr. Logan's ability to serve as the State Toxicologist."

State Patrol Chief John Batiste said he remains confident in Logan's abilities at this point and believes in the workers at the lab.

"Those folks bring great integrity to the agency as they set foot into the workplace every day," he said. "They have my full confidence and support."

Logan has "been very candid about the fact that there were things he should have caught," said State Patrol spokesman Bob Calkins, who blamed what happened on the choices that Gordon made.

After Gordon resigned July 20, other problems with testing the solution came to light: protocols weren't followed, documentation wasn't accurate and a software problem resulted in bad calculations.

In October, a two-judge panel in Skagit Valley District Court found that the lab had serious problems but declined to dismiss breath tests because of them. Judges in Snohomish County, Spokane and elsewhere have kept breath-test results out of court.

Earlier this month, King County convened the three-judge panel -- something that can be done for a "motion of countywide significance" under court rules -- and held an eight-day hearing for testimony about the lab's practices.

They noted Wednesday that prosecutors could ask the panel to reconvene when they believe they can show that the lab has addressed its problems.

Chief Presiding Judge Barbara Linde said Wednesday's ruling was momentous because "DUIs are a very significant part of the District Court's work, both in their seriousness and their importance to the community -- and in sheer volume."

Roughly 5,000 people facing DUI and related charges come through King County District Court in Seattle and seven suburban locations each year.

Calkins said officials have already made a number of changes in how things are done and hope they will soon be able to show that to the judges "so that they can have confidence in the lab."

The State Patrol has conducted several audits of lab practices, and an audit by the Forensic Investigations Council is under way.

"This lab is a good lab, but it's a good lab that has room to be a better lab, and that has been clearly pointed out to us," Calkins said. "We're headed down that road."

P-I reporter Tracy Johnson can be reached at 206-467-5942 or tracyjohnson@seattlepi.com.