EVERETT — A court ruling out of Kitsap County could create roadblocks for drunken driving prosecutions statewide, with local attorneys claiming a similar decision in Snohomish County could affect hundreds here.
At issue in the Kitsap County case decided last week was the concept of “truncation” versus “rounding” in breath test results. It sounds wonky, but it could have huge effects for DUI prosecutions going forward.
Under state code, the average of four breath tests conducted by a machine manufactured by the Germany-based company Dräger should be rounded to four decimal places. But the Washington State Patrol crime lab’s Dräger machine calculates the average of the four breath tests and truncates the results, meaning it cuts off numbers, in violation of the rules. The legal limit is 0.08.
Prosecutors there argued the problem would actually benefit defendants since rounding could increase the final results. Judges didn’t buy that argument.
The 89-page opinion claims the state toxicologist knew about the issue for over a decade, but it wasn’t disclosed until June of last year.
“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,” reads the opinion.
The judges also accuse the state toxicologist, Fiona Jane Couper, of testifying “by declaration in a false or misleading manner in tens of thousands of cases” that the machine complied with state law when it didn’t.
Chris Loftis, a spokesperson for Washington State Patrol, said an “initial review of the matter indicates this was an administrative oversight made by well-meaning professionals a number of years ago.”
“While its potential ramification were not fully recognized earlier, it is now a matter of thorough review at the highest levels of our organization,” Loftis wrote in an email to The Daily Herald.
The spokesperson added that DUI arrests and prosecutions will continue across Washington “using all available evidentiary resources appropriate to the locale.”
The Kitsap County ruling, which says breath tests are no longer admissible, only affects District Court cases there. But similar arguments are sure to be made in courts all over Washington, including in Snohomish County, attorneys say.
Snohomish County Superior Court Presiding Judge George Appel expects the issue to come up here. But his court, which handles felony cases, likely won’t have to contend with a change as much as others. Felony drunk driving cases usually hinge on blood tests, not breath, noted deputy prosecutor Tobin Darrow.
However, ramifications for Snohomish County District Court, which handles misdemeanors, and municipal courts across the county, like Everett, Marysville and Lynnwood, could be major. That said, two local District Court judges ruled on the same issue last summer and found the breath tests admissible.
Jason Schwarz, director of the county’s Office of Public Defense, figured the number affected is “well into the hundreds.”
Last year, local prosecutors filed misdemeanor charges in nearly 1,700 cases in Snohomish County district and municipal courts for DUI and physical control of a vehicle while under the influence, according to state data. Just over a quarter were convicted as charged.
In 2020, state data show local prosecutors filed more than 2,100 such charges, down from almost 2,800 the year before.
“I would expect that defense attorneys, whether they’re the public defenders or private defense attorneys, will bring that motion in front of our District Court,” Schwarz said. “And they’re going to have to rule on that.”
Bellevue-based defense attorney George Bianchi, who argued the Kitsap County case, believes other judges will rule similarly. Soon, he expects a decision in a similar case in King County.
Loftis said Washington State Patrol is working with Dräger to fix the machine’s software. In the meantime, state troopers will continue taking breath tests.
This isn’t the first time breath testing issues have taken center stage in Snohomish County courts. In 2008, Everett District Court Judge Tam Bui ruled she wouldn’t accept the tests. In that case, evidence indicated the manager of the state lab made false claims that she had verified solutions used as a control for the breath tests.
Seattle defense attorney Jason Lantz has been investigating the machines for years. He said this issue is just the “tip of the iceberg.”
“It’s almost as though they’ve lost focus of, ‘Yes, public safety is important, yes, keeping DUI drivers off the road is important,’” Lantz said. “But equally important is making sure that the evidence that’s being used to convict people is accurate and reliable.”
Meanwhile, this week, a Bremerton man sued the state toxicologist in Kitsap County Superior Court over the breath test issue. The lawsuit seeks to be classified as a class action, claiming over 80,000 people were tested in the past decade. Also this week, a Kent Municipal Court Judge tossed out breath test results in a case.
In the end, Bianchi said prosecutors bringing drunken driving cases should be able to prove someone’s driving was impaired by alcohol and support that with the blood-alcohol content, not just rely on that number to make their argument.
“This does not eliminate prosecutions for DUI,” Bianchi said. “All that this really does is it will make prosecutors scrutinize their cases more thoroughly.”
This article has been updated to reflect breath test rulings by local judges last summer.
Herald writer Ellen Dennis contributed to this report.