STATL Or .-Aonu^.l^
2013 JUL 29 Mi**7
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 67456-1-1
Respondent,
DIVISION ONE
v.
PUBLISHED OPINION
KING COUNTY DISTRICT COURT WEST
DIVISION, Judge Mark Chow; KING
COUNTY DISTRICT COURT, EAST
DIVISION, Judge David Steiner; KING
COUNTY DISTRICT COURT, SOUTH
DIVISION, Judge Darrell Phillipson;
BRETT R. BALLOW; and LESLIE P.
FAUSTO,
Petitioners. FILED: July 29, 2013
Appelwick, J. — The sole issue on appeal is whether, as a matter of law, every
breath alcohol concentration test result is inadmissible in a criminal prosecution unless
the State also introduces a statement of uncertainty for each test. Like every scientific
measurement, breath test results have a margin of uncertainty. The Washington State
Patrol's Toxicology Laboratory Division calculates this uncertainty in terms of a
confidence interval. A panel of King County District Court judges ordered that breath
tests are categorically inadmissible unless the State introduces a corresponding
No. 67456-1-1/2
confidence interval. On writ of review, the King County Superior Court reversed the
district court's decision. We affirm.
FACTS
Brent Ballow and Leslie Fausto were arrested separately in King County for
driving under the influence of intoxicating liquor (DUI), in violation of RCW 46.61.502
and RCW 46.61.506.1 During their arrests, they each consented to a breath alcohol
concentration (BrAC) test. Both defendants subsequently moved to suppress their
BrAC test results under a countywide suppression order issued in State v. Ahmach, No.
C00627921 (King County Dist. Court Jan. 30, 2008).
In Ahmach. a panel of three King County District Court judges entered a
countywide suppression order on all BrAC test results, because the Washington State
Patrol's Toxicology Laboratory Division (WTLD) was unable to produce reliable test
results. Since Ahmach, the WTLD addressed testing irregularities and obtained breath
test accreditation from the American Society of Crime Laboratory Directors Laboratory
Accreditation Board. As a result, the State requested a hearing under LCrRLJ 8.2(2)2
for the Ahmach panel to reconsider its decision. The State's motion was granted.
The cases were consolidated for a hearing before the same panel of judges who
decided Ahmach. Ballow and Fausto asked the panel to decide whether the State must
1 The State charged Ballow and Fausto under the per se prong of the
Washington DUI statute, RCW 46.61.502. A person is guilty under this prong if he or
she "has, within two hours after driving, an alcohol concentration of 0.08 or higher as
shown by analysis of the person's breath or blood made under RCW 46.61.506." RCW
46.61.502(1)(a).
2 LCrRLJ 8.2(2) allows any judge or party to request that the presiding district
court judge designate a motion as an "'issue of countywide significance.'" The presiding
judge then assigns three judges to act as a panel to hear the motion. Id.
No. 67456-1-1/3
present a corresponding statement of uncertainty to admit BrAC test results at trial. The
panel held a five day hearing in August 2010. It heard testimony from four experts:
Washington State Toxicologist Dr. Fiona Couper, WTLD Quality Assurance Program
Manager Jason Sklerov, former head of the Washington State Patrol breath test
program Rod Gullberg, and University of Washington professor Dr. Ashley Emory.
In a September 20, 2010, ruling, the district court lifted the Ahmach suppression
order. The court issued a separate order holding that breath test results must be
presented by the State at trial with an accompanying uncertainty statement, presented
as a confidence interval. The court also wrote that its order put "the State on notice that
every discovery packet supplied to defendants must contain the confidence interval for
any breath-alcohol measurement the State intends to offer into evidence in that case."3
It explained that the breath test results are inadmissible if the State fails to present the
uncertainty measurement in pretrial discovery or at trial.
Pursuant to RCW 7.16.040, the State sought and obtained a writ of review before
the King County Superior Court. The State argued that the district court's decision
improperly created a new foundational requirement for all King County DUI cases that
was not mandated by statute, administrative rule, protocol, or the rules of evidence.
The superior court reversed the district court's conclusion of law that uncertainty
statements must be offered by the State as a judicially imposed minimum requirement
3 The court also noted that by failing to turn over such evidence, "the State may
subject itself to an appeal of the verdict upon the ground that it failed to provide
exculpatory evidence," thereby violating Bradv v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963). The parties on appeal do not discuss the possibility of a Bradv
violation. But see State v. Thomas, 150 Wn.2d 821, 851, 83 P.3d 970 (2004) ("No
Bradv violation occurs if the defendant could have obtained the information himself
through reasonable diligence.").
No. 67456-1-1/4
in addition to the statutory requirements of RCW 46.61.506. The superior court
concluded that trial courts may not use ER 702 to impose a new foundational
requirement. But, it further explained that trial courts retain their gatekeeping functions
under ER 403 and 702, so they may decide to exclude otherwise admissible breath test
results in individual cases. The superior court acknowledged that science evolves and
evidence that once met the Frve4 standard may still be challenged if the science is no
longer accepted in the relevant scientific community. However, it explained, the fact
that uncertainty analysis now exists does not debunk the science of breath testing and
the DataMaster machine.5
The superior court also reversed the district court's holding that uncertainty
calculations must be provided by the State in discovery. The court explained that a
party's discovery obligation does not require that the party provide documents, but
rather "'discoverable materials shall be made available for inspection and copying.'"
(Quoting CrRLJ 4.7(a)(2)). Uncertainty calculations are readily available from the
WTLD.6 In fact, the WTLD performed uncertainty calculations over 600 times in 2010,
mostly at the request of defense attorneys.
The criminal defendants (petitioners) filed a motion for discretionary review that
this court granted.
4 Frve v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
5 The DataMaster is the breath test machine currently used in Washington. WAC
448-16-020(1).
6 At the time of the district court hearing, the WTLD calculated the uncertainty of
a particular BrAC test upon request. The WTLD now performs confidence interval
calculations as a matter of course on every breath testing machine maintained by the
WTLD. The WTLD is the only known state laboratory to provide this information.
No. 67456-1-1/5
DISCUSSION
In granting discretionary review, we characterized the sole issue on appeal as:
In a DUI prosecution, where RCW 46.61.506(4) provides that the
results of a "breath test performed by any instrument approved by the
state toxicologist shall be admissible" at a criminal trial so long as the
requirements of that statutory provision are met, do ER 702, City of
Fircrest v. Jensen, 158 Wn.2d 384, 143 P.3d 776 (2006), City of Seattle v.
Clark-Munoz, 152 Wn.2d 39, 93 P.3d 141 (2004), State v. Cauthron, 120
Wn.2d 879, 846 P.2d 502 (1993),[ overruled in part by State v. Buckner,
133 Wn.2d 63, 941 P.2d 667 (1997),] and related authorities, mandate
that the introduction into evidence of the results of an otherwise valid
breath alcohol test must be coupled with the government's introduction
into evidence of the Washington Toxicology Laboratory Division's
calculated "confidence interval" applicable to that test?
Interpretation of an evidence rule is a question of law that we review de novo. State v.
DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).
Breath test admissibility begins with relevance under ER 401 and ER 402,
neither of which are in dispute here. Next, as scientific evidence, breath test results
must pass the Frye test. State v. Baity. 140 Wn.2d 1, 10, 991 P.2d 1151 (2000). Under
Frve, a court must determine whether an expert's opinion is based on a theory generally
accepted in the relevant scientific community. Cauthron, 120 Wn.2d at 886, 890 n.4.
Under RCW 46.61.506(4)(a), breath tests are deemed admissible if the State produces
prima facie evidence of eight statutory factors regarding the accuracy of the test.7 The
7The specific factors are:
(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;
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Washington Supreme Court recognizes that the DataMaster produces scientifically
accurate, reliable test results when the eight criteria of RCW 46.61.506(4)(a) are met,
satisfying the Frve test.8 State v. Ford, 110 Wn.2d 827, 833, 755 P.2d 806 (1988); see
also State v. Straka, 116 Wn.2d 859, 870, 810 P.2d 888 (1991). Once the statutory
foundational requirements are met, RCW 46.61.506(4)(c) specifies that all other
challenges to the reliability or accuracy of the test "shall not preclude the admissibility of
the test," but instead "may be considered by the trier of fact in determining what weight
to give the test result." The Washington Supreme Court upheld the constitutionality of
these foundational requirements in Jensen, 158 Wn.2d at 399. Not surprisingly, the
petitioners do not contend that the statutory foundational requirements are not met. Nor
is there an assertion that the BrAC tests fail the Frve test.
Evidence that is admissible under Frve must still pass the two-part test under ER
702: (1) whether the witness is qualified as an expert and (2) whether the expert
testimony is helpful to the trier of fact.9 State v. Copeland, 130 Wn.2d 244, 256, 922
(iv) Prior to the start of the test, the temperature of any liquid
simulator solution utilized as an external standard, 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;
(vii) The result of the test of the liquid simulator solution external
standard or dry gas external standard result did lie between .072 to .088
inclusive; and
(viii) All blank tests gave results of .000.
RCW 46.61.506(4)(a).
8 The district court even acknowledged that Ballow and Fausto were advocating
a higher standard than the usual requirements of accuracy and reliability.
9 ER 702 provides: "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
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P.2d 1304 (1996). Evidence is helpful if it concerns matters beyond the common
knowledge of a layperson and does not mislead the jury. State v. Thomas, 123 Wn.
App. 771, 778, 98 P.3d 1258 (2004). Courts generally interpret possible helpfulness to
the trier of fact broadly and favor admissibility in doubtful cases. Miller v. Likins, 109
Wn. App. 140, 148, 34 P.3d 835 (2001). Essentially, the trial court acts as a gatekeeper
and can exclude otherwise admissible evidence if it fails to meet ER 702 standards.
Jensen, 158 Wn.2d at 397.
The district court's order included nine pages of findings related to instrument
bias, uncertainty calculations, and the WTLD's breath alcohol testing program. The
findings are not challenged. For context, however, some of those findings are worth
noting here. Every measurement is "uncertain," in that no instrument is infinitely precise
or accurate. The concept of measurement uncertainty is similar to the concept of
margin of error and expresses the idea that a true value of a measurement can never
be known. Even the best instruments yield only an estimate of the true value.
Uncertainty indicates a range in which the true value of a measurement is likely to
occur. Though there are many methods of estimating uncertainty, the WTLD uses a
confidence interval system developed by Gullberg. As an example, a confidence
interval calculation for the statutory threshold of 0.15 under RCW 46.61.5055 might look
like this: mean BrAC result: 0.1505 (the average of the two required breath test
readings); confidence interval: 0.1387 - 0.1608, with a 99 percent confidence level that
the true value lies somewhere in that range. A probability can then be calculated that
witness qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise.
No. 67456-1-1/8
the true value of the test falls below the statutory threshold, in this example, between
0.1387-0.1499.
The district court concluded that measurement uncertainty is generally accepted
within the scientific community. The State does not dispute that measurement
uncertainty is recognized in all sciences and uncertainty measurements may be helpful
to the trier of fact in some circumstances. Nor does the State challenge the district
court's finding that testing laboratories should estimate measurement uncertainty
whenever possible. As such, WTLD now performs confidence interval calculations on
every breath testing machine it maintains and makes all such results available to the
public.
However, the district court concluded that without this confidence interval, a
breath alcohol measurement is incomplete and therefore inherently misleading and
unhelpful to the trier of fact in every case. This conclusion is fatally flawed. To properly
reach this result, the district court would have needed to conclude that BrAC results
without confidence intervals are not generally accepted within the relevant scientific
community. However, BrAC results without confidence intervals are generally accepted
in the forensic toxicology community. In fact, measurement uncertainty reporting is
almost nonexistent in the context of these cases. Indeed, the WTLD is unique in that
regard. Neither Couper nor Gullberg knew of another breath test program in the country
that offers a measurement of uncertainty. Sklerov likewise testified that there is little
consensus in the forensic toxicology community on how to even calculate or report
uncertainty measurements. At the time of the 2010 hearing, only two scientific
8
No. 67456-1-1/9
publications discussed calculating uncertainty for breath tests—both of which were
written by Gullberg. The district court's findings reflect this testimony.
In essence, the district court implicitly concluded the BrAC test results without the
accompanying confidence interval failed the Frye test in every case. But, when the
court excludes evidence under ER 702, it must exercise that discretion on the facts of a
particular case. Jensen, 158 Wn.2d at 398-99; State v. Willis, 151 Wn.2d 255, 262, 87
P.3d 1164 (2004) ("The admissibility of expert testimony is governed by ER 702 and
requires a case by case inquiry."). Without a confidence interval, test results obtained in
conformance with the WTLD and statutory quality assurance procedures remain the
best estimate of the measurement's true value.
The petitioners nevertheless assert that a confidence interval is necessary to
understand a BrAC test result, just like a probability estimate is necessary to understand
a DNA (deoxyriboneucleic acid) match. They are wrong. In Cauthron, the Washington
Supreme Court held that DNA typing under the restricted fragment length
polymorphisms (RFLP) procedure was generally accepted in the scientific community
and met the Frve test for admissibility. 120 Wn.2d at 899. Each individual, with the
exception of identical twins, has a unique DNA structure, which is contained in every
nucleated cell. ]d. at 892. All scientists agree that if autorads (autoradiograph of a
sample in RFLP testing) are distinguishable, then they do not come from the same
individual. Id at 893, 900. But, DNA "matches" cannot be interpreted without
knowledge of how often a match might be expected to occur in the general population,
jd. This is so, because RFLP does not test the whole DNA strand; but rather focuses
on specific locations, so absolute identification is impossible. ]d. As such, "'[t]o say that
No. 67456-1-1/10
two patterns match, without providing any scientifically valid estimate (or, at least, an
upper bound) of the frequency with which such matches might occur by chance, is
meaningless.'" Id at 907 (quoting Committee on DNA Technology in Forensic Science,
DNA Technology in Forensic Science 74 (National Academy Press (1992)). DNA match
testimony without a population probability estimate is neither generally accepted in the
relevant scientific community nor helpful to the trier of fact. Id. Therefore, the court held
that evidence of a DNA "match" may not be introduced without a probability estimate,
id. This failure to satisfy Frve clearly distinguishes the rejected DNA testimony from the
BrAC test results in this case.
Moreover, it is well supported in case law that if a scientific test is generally
accepted by the relevant scientific community, lack of certainty goes to weight rather
than admissibility. State v. Stenson, 132 Wn.2d 668, 717-18, 940 P.2d 1239 (1997)
(uncertainty of presumptive phenol test for detecting human blood went to weight rather
than admissibility); State v. Lord. 117 Wn.2d 829, 853, 822 P.2d 177 (1991). Similarly,
unless errors rates are so serious as to be unhelpful to the trier of fact, error rates go to
weight, not admissibility. Copeland, 130 Wn.2d at 270; see also Straka, 116 Wn.2d at
875. In State v. Keller, the court applied this principal to Breathalyzer tests. 36 Wn.
App. 110, 113, 672 P.2d 412 (1983). In that case, the defendant argued there was
insufficient evidence to support his DUI conviction, because the Breathalyzer machine
had an inherent margin of error of .01 percent. ]d at 111-12. The court rejected this
argument, holding that the margin of error went to the weight of the Breathalyzer
evidence rather than admissibility. Id. at 113-14.
10
No. 67456-1-1/11
Nothing in RCW 46.61.506 prevents the trial court from exercising its discretion
under ER 702 to exclude an unreliable, inaccurate, or erroneous BrAC test result on a
case-by-case basis. However, by adopting a blanket exclusion, the district court
implicitly imposed a new foundational requirement for BrAC tests admissibility, beyond
that required by Frve or RCW 46.61.506(4). This was error. The burden is on
defendants, not the State, to present uncertainty evidence challenging BrAC test
results. We hold that the superior court properly reversed the district court's decision.
We affirm.
WE CONCUR:
Ss>/U Jl
11