Readings from breathalyzer machines will not be admitted in “driving under the influence” trials in Kitsap County District Court under a significant ruling announced June 13 by the court’s four judges.
A breathalyzer gives an estimation of an individual’s alcohol content by taking two breath samples.
The legal decision removes one of the most-effective pieces of evidence prosecutors can bring in DUI cases – the readout from the BAC — or breath alcohol concentration — machine that indicates whether a person is over the .08 reading in which the driver can be charged. Now, when prosecutors bring DUI cases to district court, they will have to rely primarily on a police officer’s description of a suspect’s impairment while driving and the individual’s behavior after being pulled over.
“Prosecutors will have to better scrutinize their DUI cases for legal sufficiency,” said Seattle defense attorney George L. Bianchi, who argued the issue along with Thomas E. Weaver, a Bremerton attorney.
The judges ruled the state toxicologist — who maintains breathalyzer machines statewide — failed to operate the machines under rules of their own office established to ensure the machines’ BAC readings are accurate, Bianchi said.
“[The acting state toxicologist Dr. Fiona Jane Couper] wrote the WAC [Washington Administrative Code] provisions for admissibility of BAC readings, and then did not follow them,” Bianchi said.
The court states in its 89-page decision, “The state toxicologist has known for over a decade that the [breathalyzer] generates breath test printouts in violation of WAC [requirements].
“The state toxicologist has known since the [BAC machine] was introduced in Washington in 2010 that the [it] has generated tens of thousands of breath test printouts which have never been in accord with WAC [provisions],” the judges wrote.
The ruling involved a case on May 9, 2020, in which a sheriff’s office deputy was dispatched to a single-vehicle collision involving a vehicle in a ditch on Tahuyeh Lake Road Northwest in Bremerton. The vehicle, registered to defendant Austin River Keller, was 25 feet into the ditch and incurred heavy damage. Keller admitted driving his car into the ditch, court paperwork says.
The deputy reportedly noticed the smell of alcohol on Keller’s breath and proceeded to conduct field sobriety tests. Keller consented to a portable breath test with an alcohol result of 0.132 g/100 ml of breath. The deputy arrested Keller on suspicion of DUI and transported him to Silverdale to administer a BAC test, which indicated he was over the .08 limit.
Keller later entered a plea of not guilty and moved to suppress the BAC results. On March 8, the four district court judges heard the case.
Ione George, chief of staff at the prosecutor’s office, said attorneys are reviewing the opinion and have not yet determined what avenue they may take in light of the decision.