The short answer is, yes. Kitsap County District Court recently heard a motion to suppress a breath test in a DUI case. The basis for the motion was that the office of the State Toxicologist, responsible for the supervision of the state’s breath test program, has failed to follow its own guidelines in the design and operation of the breath test instruments. The Court agreed, and yesterday ruled as a result that “The Dräger breath test machine fails to produce accurate, precise, and reliable breath test results as required by state toxicologist scientifically approved methods and regulations, and state statute.” As of June 13, 2022, Dräger-generated breath test results are not admissible in any Kitsap County District Court cases.
Are Breath Tests Unreliable?
This isn’t about the reliability or accuracy of the breath test instrument, necessarily. It’s about the way the instrument calculates the final reading after testing the samples. According to the Washington Administrative Code, the instrument is supposed to take the four measurements, round the numbers off (to four decimal places), then conduct a mathematical measurement to ensure the results are within an acceptable range. However, what the instruments are actually programmed to do is to take the four measurements and truncate the numbers before conducting the acceptable range measurement.
What is Truncating and Rounding?
Imagine you work for $20 / hour. One day you come in and work one hour and forty-five minutes. If your boss “rounds off” your partial hours worked to the nearest hour, one hour and forty-five minutes would be rounded up to two hours, and you would get paid $40. If your boss “truncates” partial hours worked, that last forty-five minutes would get cut off and you would get paid for just one hour, $20. Truncation and rounding, and the sequence in which they are done, have the potential to dramatically alter the final calculation.
Why Does it Matter Which Mathematical Operation Was Done?
The simple legal answer is because that’s a strict rule and they broke it. The only breath test instrument currently approved by the toxicologist is the Dräger Alcotest 9510, which is in virtually every police department and jail in the state. For a breath test result to be admissible in court, it has to be derived in the manner “approved by the state toxicologist”. If the protocol is not followed, then the argument doesn’t focus on the reliability of the test, or what the result should have been with proper calculation.
This is a “foundational” requirement, meaning strict adherence is demanded or the measurements cannot be admitted. As a practical matter, the value of the fourth decimal place in a BAC test will almost never be mathematically significant. But as the Court explains, “Our Supreme Court has long required the state toxicologist to abide by their own rules, especially when applied to vital privileges like driving. The Court declines the State’s invitation to ignore WAC 448-16-060 and RCW 46.61.506(4)(a)(vi). The Court also declines to create a new “lack of prejudice to the defense” exception under RCW 46.61.506 and the rules of evidence.” When there is a plain evidentiary rule, the government must follow it.
The Court seemed particularly frustrated by the fact that the toxicologist wrote the rules of admissibility for breath test measurements, and then was responsible for programming the instruments in a way that doesn’t comply with those rules. From the opinion: “The state toxicologist has known for over a decade that the Dräger generates breath test printouts in violation of WAC 448-16-060. Prior to June 2021, the state toxicologist and her office did not disclose to anyone outside their office that the Dräger machine software failed to comply with WAC 448-16-060 as mandated by RCW 46.61.506(4)(a)(vi).´ They wrote the rules and failed to follow them.
Who Made This Decision and Whom Does it Affect?
The opinion came as the result of an “en banc” hearing. That means that all four elected District Court Judges in Kitsap County heard the argument together and collaborated on a final decision. Since all four agree, it is the law of all cases in that court. Right now, this decision only controls in Kitsap County cases (and only those in District Court). So currently it applies to anyone with a pending DUI in Kitsap County (and possibly those in pretrial diversion or deferred prosecution status as well). But this 89-page decision also contains a great deal of well-thought-out reasoning and legal research. Similar motions are pending in other counties and cities around the state, so we expect several other jurisdictions will adopt this reasoning. It is not unreasonable to think that half the courts in the state or more might reach similar conclusions and suppress BAC results in their jurisdictions.
If you want to find out if this decision makes a difference in your case, call or email us today!