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OLYMPIA, Wash — A DUI case out of Kitsap County is heading to the Washington State Supreme Court.
The case could have major implications for thousands of DUI cases across the state. It all hinges on the technicality of a breathalyzer machine used by agencies statewide.
More than 10,000 people are arrested by the Washington State Patrol for a DUI each year.
For a jury in a DUI case, the number on a breathalyzer is like DNA in a murder case.
“DNA with a breath test number,” said George Bianchi, DUI attorney. “They assume it’s very scientific so they can rely on it.”
The Drager 9510 breathalyzer machine has been used in thousands of DUI cases, but a recent case in Kitsap County got those results thrown out. District court judges agreed with attorneys that the results are invalid and go against Washington administrative code.
The Drager machine determines someone’s blood alcohol level by taking four samples and calculating the average. Under state law, the calculations are rounded to four decimal places, however, the machine truncates rather than rounds to four decimal points.
Bianchi found the issue and was brought in to help with the Kitsap case.
“The confidence that we need to have in the machine that it’s doing everything right for that ticket to just look at it and say, ‘yes it’s admissible,'” Bianchi said. “And now we’re finding it’s not doing everything right.”
The State Supreme Court will take up the 89-page opinion from all four Kitsap County district judges.
The Kitsap case is bypassing the typical appellate process and going straight to the Washington Supreme Court because of the extraordinary circumstances surrounding the case.
In the decision to hear the case, the Supreme Court Commissioner said, “This decision has the potential to affect a great number of Washington prosecutions for driving under the influence; this case involves significant public interest questions.”
“It is significant, but there could also be different rulings in different courts so it’s one of those things that needs one solid ruling for all the courts,” Bianchi said.
Currently, Drager breathalyzer findings are only inadmissible in Kitsap County.
Bianchi recently argued a similar case to try to get breathalyzer results suppressed in King County. Prosecutors are asking judges to put their ruling on hold until the State Supreme Court makes its decision.
Bianchi believes that could cause a backlog of DUI cases.
“It could be about a year before our Supreme Court would rule on this issue so that’s a long time with a lot of cases waiting,” Bianchi said.
The state toxicologist is a part of the Washington State Patrol and approves the machine and how it works.
Court documents show the toxicologist approved the machines in 2010 and knew about the calculation error and didn’t disclose the information until last year.
“It was disheartening but it wasn’t a surprise,” Bianchi said. “We’ve had our concerns about this Drager machine since it came out.”
Washington State Patrol said the truncation method benefits the defendant and cites that only eight have had any impacts out of more than 81,000 cases reviewed.
The department is proposing changing the language in the Washington Administrative Code to match the machine’s process.
There will be a public hearing on the proposal Sept. 27 at 10 a.m. via Zoom.
No date has been set for when the State Supreme Court will hear the Kitsap ruling.
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