Whatcom County Prosecuting Attorney letter to DUI Defense Attorneys regarding DUI BAC Results

As another batch of problems arise with the Washington State Toxicology Lab (namely their reluctant to provide information about the accuracy of the BAC results - the "uncertainty" motions, as they are being referred to), it is time to reflect upon the last time this Lab was in strife.  If we turn back the clock two years we remember the Toxicology Lab fraud and the resultant backpeddling from prosecuting attorney offices around the State.  What follows is a letter from the Whatcom County Prosecuting Attorney's office and their dealing with the problem.

WHATCOM COUNTY PROSECUTING ATTORNEY

DAVID S. McEACHRAN

CHIEF CRIMINAL DEPUTY Whatcom County Courthouse CHIEF CIVIL DEPUTY

Mac D. Setter 311 Grand Avenue, Second Floor Randall J. Watts

Bellingham, Washington 982254079

ASST. CHIEF CRIMINAL DEPUTY (360) 6766784

FAX (360) 7382532

CIVIL DEPUTIES

Warren J. Page COUNTY (360) 3981310

Karen L. Frakes

Daniel L. Gibson

CRIMINAL DEPUTIES Royce Buckingham

Craig D. Chambers

Elizabeth L. Gallery CIVIL SUPPORT

David A. Graham ENFORCEMENT DEPUTIES

Eric J. Richey Angela A. Cuevas

James T. Hulbert Dionne M. Clasen

Dona Bracke

Ann L. Stodola APPELLATE DEPUTIES

Jeffrey D. Sawyer Kimberly Thulin

Anna Gigliotti Hilary A. Thomas

Shannon Connor

Christopher D. Quinn ADMINISTRATOR

David E. Freeman Kathy Walker

Kari Hathorn

Kyle Moore

Kristen Reid

February 22, 2008

Dear Colleagues:

I am writing regarding the myriad of motions that have been filed surrounding the Washington State

Toxicologist and State Toxicology Lab. Having reviewed much of the record and all of the decisions

rendered by the Courts around the state, I would note that both of the following cases are persuasive.

King County District Court decision, State v. Ahmach, Sanafim, ET AL. issued January 30, 2008, which

held for the defense, suppressing the BAC result; and Snohomish County Superior Court decision, State

v. Russeff, issued January 22, 2008, which held for the State, denying the defense's motion to suppress

the BAC result. The conflicting results notwithstanding, the analysis in both cases is well taken and is

consistent with the Supreme Court decision City of Fircrest v. Jensen, 158 Wn.2d 384 (2006) and

Justice Madsen's opinion in City of Seattle v. Ludvigsen, SL OP 799741

(December 20, 2007).

Accordingly, it is the decision of the Whatcom County Prosecutor's Office that in cases where the

charge filed is RCW 46.61.502, Driving Under the Influence of Intoxicating Liquor, RCW 46.61.504,

Physical Control While Under the Influence of Intoxicating Liquor, or 46.61.503, Minor Operating, the

State will not seek to admit at trial any BAC result run with a simulator solution from a batch approved

by the State Toxicology Lab prior to Batch 07026. In all but a few instances, this decision will only

affect tests run prior to August 24, 2007. It is the belief of this office that solutions from Batch 07026

onward do not suffer from the procedural or substantive errors, which have been the basis of the above

referenced motions and court decisions.

Those pending cases falling within the subject time period, will be evaluated on a casebycase

basis.

Where evidence is sufficient, DUI and Physical Control charges will be litigated under the appreciably

affected prong of the statute.

Sincerely,

Warren J. Page

Assistant Chief Criminal Deputy
For information on your Washington State DUI please contact our Snohomish County DUI attorneys, King County DUI attorneys, Island County DUI attorneys, Whatcom County DUI attorneys, or Skagit County DUI attorneys at 425-493-1115 or check out our website at http://www.washdui.com

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