In State v. Sliger, No. 103563-2 (Aug. 13, 2026), the WA Supreme Court held that tobacco strands are not a “foreign substance” in a person’s mouth and therefore do not invalidate a breath test if seen and not removed.
The court reasoned that in cases involving the debatable presence of a foreign substance in the defendant’s mouth within 15-minutes before or during the breath test, the State must rely on expert testimony to make a prima facie showing that the defendant’s mouth was free of foreign substances. Here, the State met its burden when it presented expert testimony that the tiny strands of tobacco between the defendant’s teeth would not affect the reliability of the Draeger Breath Test results. The other admissibility requirements for breath tests were also met. Thus, the breath test was admissible.
FACTUAL BACKGROUND
Mr. Sliger was charged with Vehicular Homicide after being involved in a fatal collision with a dirt bike. At the scene, Sliger admitted to drinking a few hours before the crash. He voluntarily took a portable breath test. Prior to taking the test, Sliger was instructed to spit out a lump of chewing tobacco from his mouth.
Sliger was arrested and taken to jail. At jail, Sliger agreed to take a Draeger breath test. Prior to administering the test, Deputy Kahns asked Sliger if he had any foreign substances in his mouth, and Sliger denied having any. In his DUI arrest report, the officer checked off the box indicating that Sliger denied having any foreign substances in his mouth. He also checked off the box indicating that he visually examined Sliger’s mouth. Next, he checked the box indicating that foreign substances were found and explained that there were “tiny tobacco strands stuck in teeth.” The tiny strands of tobacco were not removed prior to administering the test. The breath test results indicated an alcohol level over the legal limit.
The State charged Sliger with vehicular homicide. Sliger filed a motion to suppress the breath test results. He argued that the test results were inadmissible because the tiny strands of tobacco in his teeth constituted a foreign substance that should have been removed before conducting the breath test. An evidentiary hearing was held during which the court heard testimony from the arresting officer and the State’s expert, Trooper Axtman, a breath test technician. While testifying, Trooper Axtman made a distinction between a lump of chewing tobacco and tiny strands of tobacco for purposes of determining admissibility of a breath test.
After hearing testimony, the trial court denied Sliger’s motion to suppress the breath test results. The court concluded that the State met the burden of providing prima facie evidence that Sliger did not have any foreign substances in his mouth at the beginning of the 15-minute observation period. Notably, the trial court’s rulings were based solely on Sliger’s verbal denial of having foreign substances present in his mouth. Sliger appealed the trial court’s rulings. On appeal, the Court of Appeals concluded that the trial court did not err in determining that Sliger’s denial alone constituted prima facie evidence that no foreign substances were present in his mouth.
Sliger again appealed on the legal issue of whether the State provided prima facie evidence that Sliger did not have any foreign substances in his mouth at the beginning of the 15-minute observation period prior to administering the test.
COURT’S ANALYSIS & CONCLUSIONS
Ultimately, the WA Supreme Court upheld the Court of Appeals and the trial court’s rulings. We hold that the State produced prima facie evidence that Sliger did not have any foreign substances in his mouth when it provided expert testimony that the tiny strands of
The WA Supreme Court began with a review of former RCW 46.61.506(4)(a). This statute, which was in effect at the time, governed the admissibility of breath tests. To determine whether a person has a foreign substance in their mouth before administering a breath test, WAC 448-16-040 requires officers to either examine the individual’s mouth or have the person deny that there are any foreign substances in their mouth.
Next the WA Supreme Court addressed Sliger’s arguments that the prosecution cannot meet its burden for admissibility here because the statutory term “any foreign substance” includes tiny strands of tobacco. Sliger emphasized that “any” before the term “foreign substance” means that any quantity of a foreign substance, regardless of its size, results in an invalid test.
However, the WA Supreme Court disagreed with Mr. Sliger. It said the statute at issue here does not speak to quantity of substance in a person’s mouth. Furthermore, the Court emphasized that interpreting ‘any’ to mean any quantity of a foreign substance is not a reasonable interpretation of the statute. :
“Interpreting ‘any’ to mean any quantity of a foreign substance would lead to absurd results. This interpretation would mean that the presence of microscopic amounts of a foreign substance would prevent the admissibility of breath test results regardless of whether it has any impact on the reliability of the test. Officers are not equipped to conduct a thorough inspection of an individual’s mouth for any strand or speck of a foreign substance. In accordance with Fernandez, a more reasonable interpretation is that “any foreign substance” refers to any kind of foreign substance capable of impacting the reliability of the test results.” ~WA Supreme Court
With that the WA Supreme Court held that the State met its burden of establishing prima facie evidence that Sliger’s mouth was free of any foreign substances when it presented expert testimony that the tiny strands of tobacco would not affect the reliability of the breath test results.
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