Kitsap Judges’ Ruling Could Invalidate DUI Convictions Statewide

How Does a Breathalyzer Work? And Should You Refuse One?

Journalist reports that the Kitsap County District Court invalidated the results of a breathalyzer test (BAC Test) used by police. This ruling could have state-wide implications in thousands of DUI cases.

All four judges of the court agreed the state toxicologist violated state law when she approved software for the Dräger breathalyzer. This device is commonly used to test a person’s blood-alcohol level. The Dräger breathalyzer has been in the field since 2015 and is now used by nearly every law enforcement agency in the state.

Background Facts

On May 9, 2020, Mr. Keller was involved in a single-vehicle crash in Bremerton. Court records showed a Kitsap County sheriff’s deputy responded and smelled alcohol on Keller’s breath. He gave Keller a field sobriety test and Keller submitted to a blood alcohol test in the field using the portable Dräger breathalyzer. The test resulted in a 0.132 blood alcohol level. The legal limit in the state is .08.  Keller was arrested and is awaiting trial for DUI. On pretrial motion, his defense attorneys argued a  CrRLJ 3.6 Motion to Suppress the BAC Test. And apparently, they were successful.

How the Dräger Functions

The Dräger machine takes four samples of a person’s breath and then calculates the median, the center point of all four results.  It then provides a median number that is truncated to several decimal points. State law said the machine needs to truncate to four decimal points and then round up or down to three decimal points. Because the rounding was not part of the final calculation, any result the machine produced using the software approved by the state toxicologist violated state law.

The Court’s Ruling & Analysis

The judges reasoned that the Washington State Patrol oversees the State Toxicology Lab and is responsible for distributing the Dräger breathalyzer with the proper software to all local law enforcement in the state. However, the software approved by then-state toxicologist did not follow the calculations mandated by state law.

The judges issued two rulings. First, they wrote an 89-page ruling explaining their decision to their findings that the software did not follow state law. Second, they issued a court order stopping the use of results of the Dräger machine as evidence in all cases in Kitsap County.

Kudos to the defense attorneysGeorge Bianchi and Tom Weaver. They fought hard for justice. Thankfully, other defense attorneys in other counties can use the Kitsap County ruling in their own DUI cases. The state toxicologist approved software that was used in the Dräger machine across the entire state of Washington. Clearly, the software did not have the proper calculations and is presently being used by prosecutors and police.

Please contact my office if you, a friend or family member are charged with DUI or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.