By Mike De Felice
Kitsap Daily News
PORT ORCHARD – Readings from breathalyzer machines will not be admitted in “driving under the influence” trials in Kitsap County District Court under a significant ruling announced Monday by the court’s four judges.
A breathalyzer is a device that gives an estimation of an individual’s alcohol content in their breath taken by two breath samples.
The legal decision removes one of the most effective pieces of evidence prosecutors can bring in DUI cases – the readout from the BAC — or breath alcohol concentration — machine that indicates whether a person is over the .08 blood alcohol reading in which the driver can be charged with a DUI violation. Following this week’s ruling, if a prosecutor brings a DUI case to district court, they will have to rely primarily on a police officer’s description of a suspect’s impairment while driving and the individual’s behavior after being pulled over.
“Prosecutors will have to better scrutinize their DUI cases for legal sufficiency,” said Seattle defense attorney George L. Bianchi, who argued the issue with district court judges along with co-counsel Thomas E. Weaver, a Bremerton attorney.
The panel of judges ruled the state toxicologist — who maintains breathalyzer machines across the state — failed to operate the machines under rules the toxicologist’s office established to ensure the machines’ BAC readings are accurate and meet admissibility requirements, Bianchi said.
“[The acting state toxicologist Dr. Fiona Jane Couper] wrote the WAC [Washington Administrative Code] provisions for admissibility of BAC readings and then did not follow them,” Bianchi said.
The court stated in its 89-page decision, “The state toxicologist has known for over a decade that the [breathalyzer] generates breath test printouts in violation of WAC [requirements].
“The state toxicologist has known since the [BAC machine] was introduced in Washington in 2010 that the [it] has generated tens of thousands of breath test printouts which have never been in accord with WAC [provisions],” the judges wrote.
Defense attorney Bianchi said: “The court said that since [the toxicologist] didn’t follow their own rules, the breath tests are inadmissible.”
The ruling involved a case on May 9, 2020, in which a Kitsap County Sheriff’s Office deputy was dispatched to a single-vehicle collision involving a vehicle in a ditch on Tahuyeh Lake Road Northwest in Bremerton, according to the ruling.
The vehicle, registered to defendant Austin River Keller, was 25 feet into the ditch and incurred heavy damage. Keller was present at the scene and admitted driving his car into the ditch, according to court paperwork.
The deputy noticed the smell of alcohol on Keller’s breath and proceeded to conduct field sobriety tests. Keller consented to submit to a portable breath test with an alcohol result of 0.132 g/100 ml of breath. Based upon the results of the sobriety tests, the smell of alcohol on Keller’s breath, the portable breath test result, and the one-vehicle collision, the deputy arrested Keller for driving under the influence and transported him to Silverdale to administer a breath alcohol concentration test. BAC test indicated he was over the state’s .08 limit.
On Jan. 22, 2021, Keller was charged with a DUI violation. He later entered a plea of not guilty. Last December, Keller moved to suppress the BAC test results. On March 8, 2022, the Kitsap County District Court’s bench of four judges heard the case. The panel on Monday published its decision to toss BAC readings.
The Kitsap County Prosecutor’s Office was asked to comment on the far-reaching ruling. Ione George, the chief of staff at the prosecutor’s office said attorneys are currently reviewing the lengthy opinion and have not yet determined what avenue the county office may take in light of the decision.