SEATTLE – A three-judge panel of the King County District Court heard arguments on Tuesday on the admissibility of breathalyzer readings used by all law enforcement agencies in the state.
The three judges were brought in because a motion to suppress the reading in the case of a suspected impaired driver was deemed to be of “countywide significance.”
At issue is the Drager 9510 breathalyzer – which is programmed and issued by the Washington State Patrol (WSP) to all law enforcement agencies in the state – and the way it calculates the breathalyzer rate. a person’s blood alcohol level.
“State toxicologist and breath techs have been saying for seven years that the Drager machine has to do the math by [accordance] with the administrative code, and then I found out the machine wasn’t doing that calculation,” said George Bianchi, a seasoned attorney with 37 years defending suspected impaired drivers.
The Washington Administrative Code (WAC) dictates that the device should round the result to three decimal places. Bianchi supported – and WSP accepted – the device truncated the average of four sample readings to four decimal places, rather than rounding.
Bianchi was brought into the case to make the same argument he made earlier this year in the case of a Kitsap County man charged with impaired driving. Realizing the importance of the argument, the four district court judges heard Bianchi’s arguments.
In June, the judge issued an 89-page ruling declaring the Drager breathalyzer results could not be admissible in court. Kitsap County District Attorney Chad Enright responded by telling all county law enforcement not to rely on breathalyzer results when building a DUI against someone.
On Monday, WSP Trooper Christopher Hooper took the witness stand to testify on behalf of the King County prosecutor, who was defending the calculations made by the Drager.
Hooper said he trained other soldiers to use the breathalyzer and do their own calculations to see if the device was within plus or minus 10% of the average reading.
He admitted in court that during his training he was told the device rounded the final result, rather than truncating it.
RELATED: Court blames state toxicologist for breathalyzer calculation issues that could overturn drunk driving convictions
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Judges must decide whether truncating the final result or rounding as stated in the WAC makes enough difference to remove the BAC in the DUI case. If they do, it could make Drager breath alcohol test results inadmissible in all King County DUI cases.
“Anyone who has been found guilty of a blood alcohol level of 15 points or more has the opportunity to go back and have their conviction overturned for that breathalyzer reading,” Bianchi said.
A conviction with a BAC of 0.15 or higher means enhanced mandatory minimum sentences. Jail sentences are doubled, license suspension is tripled and fines are significantly higher. At this level, a hundredth of a percentage point can make a real difference in the penalty a person pays, including the revocation of driving privileges.
The State Patrol told FOX 13 it has made a decision for the future.
“WSP investigated two possible solutions to this issue: a software fix to comply with the WAC, or a rule change within the WAC to align with the current benchmarking methodology. We chose the latter,” said WSP spokesperson Chris Loftis.
The presiding judge did not give a timeline for the judge’s decision.
With King County being the largest county in the state, many jurisdictions are closely watching how judges will decide the case.