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Lawyer fights lab test in DUI homicide crash

COUPEVILLE — It’s been 13 months since Karen Gervais-Boone, a mother of two, was killed in a three-car collision on Highway 525 in Freeland. But a trial date is not in sight for the driver accused of drunk driving blamed for causing the crash.

Defense attorneys are challenging the toxicology lab results that say Randi Shelton, the woman who drove the car that hit Gervaise-Boone’s van, was under the influence at the time of the fatal crash.

It’s the latest DUI case called into question due to inconsistencies discovered last summer at the Washington State Toxicology Laboratory.

The trial has been delayed multiple times. This week the trial was pushed back even further.

A three-day pre-trail hearing regarding the challenge won’t be held until May 21.

“My client is innocent,” said defense attorney Craig Platt of Coupeville.

Several cases have already been to court where people were convicted based on faulty evidence from the state toxicology lab, he noted.

“Now we are trying to ensure that the same mistake does not occur with respect to blood evidence,” Platt added.

Doubts about the Seattle-based lab’s work surfaced last summer, when lab manager Ann Marie Gordon was accused of signing off on scientific tests she didn’t do.

Barry Logan, the head of the lab, was also criticized on a review about the problems. He assigned Gordon to investigate the matter, apparently unaware that she was the problem.

Soon, more inconsistencies came to light. The problems circled around how the lab used an ethanol-water solution to make sure breath-test machines gave accurate readings. The solution is critical in thousands of drunk-driving cases.

If Shelton’s toxicology lab results are thrown out, the prosecution will have a harder time winning the case, officials acknowledged.

“It would make it more difficult — considerably,” said Island County Prosecutor Greg Banks. “But that doesn’t mean it would end. We still would go forward with prosecution.”

Sheriff Mark Brown said that it is false to assume chemical tests are the prime evidence in DUI cases.

“People seem to be too dependent on chemicals tests. It’s just another piece of evidence,” he said.

In Shelton’s case, other evidence points to DUI. According to the probable cause statement, the trooper at the scene of the crash reported that he smelled alcohol on Shelton’s breath.

“Her eyes were watery and bloodshot and her speech was slurred,” the statement said.

Shelton told the trooper she had had two drinks, but the trooper saw two bottles of liquor in her car.

The detective wrote that he hasn’t yet received toxicology results on Shelton from the state crime lab at the time, but Whidbey General Hospital records indicate that Shelton had a blood-ethanol level of 0.30. That’s more than three times the legal limit of 0.08.

The crash was not Shelton’s first alcohol-related run-in with the law.

“We think she had two prior DUIs, both out of Oregon. That’s relevant in a vehicular homicide case. It affects the sentence,” Banks said.

If convicted, Shelton could face from 55 months to 65 months in prison under the standard sentencing range. That includes a two-year sentence enhancement for a prior DUI conviction.

“If convicted she is deserving of severe punishment,” Banks said.

It is not clear if Gordon or any lab employees who are wrapped up in the toxicology lab scandal ever handled Shelton’s blood sample, nor is it clear if blood samples were ever treated improperly at the lab.

Most of the trouble at the state lab was related to breath tests.

In the case of Shelton, a breathalyzer test wasn’t taken. Instead, blood was drawn due to her extensive injuries.

However, defense attorneys all over the state have argued that the lab’s shoddy practices call all of its work into question.

“Would you have your blood work for major heart surgery done by a lab which had been found to have incompetently handled samples for blood work for brain surgery?” Platt asked.

“How about ordering soup from a restaurant which had been found by the health department to have rat dropping in their omelets? Would it matter to you that the problem was with one part of their menu, but perhaps not the other? Probably not.

“The fact that so far the findings are confined to a breath test is only because the courts have not yet had a full opportunity to review the blood evidence in light of all the examples of lab mismanagement, dishonesty and incompetence that have come to light in the past few months,” he said.

Since the problems bubbled to the surface, DUI attorneys in multiple counties have challenged test results.

In January, three King County District Court judges questioned Logan’s ability to serve as state toxicologist and found that the lab was fraught with ethical problems, scientific errors and carelessness — making all breath tests unreliable.

Platt said he felt vindicated by the ruling.

Banks said the inconsistencies at the state lab are troubling for him, too.

“We expect better from our state labs,” he said.

However, he believes based on the nature of the sample and how the blood sample was handled it was not affected.

“The blood test results should be admissible at trial,” he said.

Logan, the head of the toxicology lab, resigned earlier this month.

Gervais-Boone was killed Jan. 22, 2007 in a collision on Highway 525 at the intersection of Mutiny Bay Road.

Shelton, 36, was driving south on Highway 525 just after 6:30 p.m. when she crossed the center line in her 2004 Dodge Durango and hit Gervais-Boone’s Toyota van.

Gervais-Boone, 47, of Greenbank died on the scene.

Shelton’s vehicle then continued south and hit a 1989 Dodge van driven by Dale Studeman. Studeman, 51, was not injured in the collision.

Shelton was transported to Whidbey General Hospital and then airlifted to Harborview Medical Center in Seattle for medical treatment.

Prosecutors charged Shelton in Island County Superior Court on Feb. 5, 2007 with vehicular homicide.

Shelton’s arraignment, scheduled for Feb. 20, 2007, was initially continued in order to allow her time to recuperate from surgery. She suffered extensive injuries in the collision, including an open ankle fracture and internal injuries, according to court records.

The trial has been continued numerous times since then, mainly because the defense has asked for more time to uncover evidence related to problems at the toxicology lab.

On Nov. 13, the trial was reset to Feb. 26 based on the unfolding issues in the toxicology lab.

On Feb. 11, the prosecution told the judge that it anticipated the need for another continuance, and set a hearing for Feb. 25 to enter a final scheduling order.

Banks anticipates the new trial date will be June 3.

“This is the best way to protect the integrity of the process, and those who complain about the length of time this takes simply do not understand fairness and due process,” Platt said.

Platt is also the attorney for a 32-year-old Bellingham man who’s blood-alcohol level was at twice the legal limit when he drove off a road on North Whidbey in 2006, killing one passenger and seriously injuring another.

Platt is challenging the toxicology lab results in that case as well.

Prosecutors charged Jonathan Everbeck in Island County Superior Court June of last year with vehicular homicide and vehicular assault, according to court records. Both charges involve driving while under the influence.

Everbeck, an Oak Harbor High School graduate, pleaded not guilty.

His blood toxicology report showed Everbeck had a blood-ethanol level of 0.16 about 95 minutes after the collision.

Sheriff Mark Brown, who is often on the front line when DUI-related collisions occur, said he is taking aggressive measures against DUIs.

Even so, people continue to drive under the influence.

“So far we had 30 DUI arrests this year,” he said. “That’s fairly high.

I have a very aggressive stance against violations that kill our citizens.”

Michaela Marx Wheatley can be reached at 221-5300 or mmarxwheatley@southwhidbeyrecord.com.

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