VANCOUVER, Wash. — A DUI case with potentially wide-ranging impacts is on its way to the Washington Supreme Court, and it's grabbed the attention of law enforcement agencies throughout the state, including in Clark County.
The case hinges on a technicality about whether a particular model of breathalyzer machine complies with the precise wording of a state regulation that defines how the machines are supposed to measure and compute alcohol levels.
The case originated in Kitsap County and involves an Alcotest 9510 unit from manufacturer Dräger that is used by the Washington State Patrol.
Many other law enforcement agencies use that same model — including the Clark County Sheriff's office, according to Clark County Chief Deputy Prosecuting Attorney Rachael Rogers — which is why the case could have far-reaching impacts.
"In our cases in Clark County District Court - so those are misdemeanor DUIs that my office handles, come from the Clark County Sheriff's Office and the Washington State Patrol - and they appear to be using the Draeger 9510," she said.
The legal dispute stems from how the machines measure breath alcohol levels, which are used to calculate a blood alcohol estimate. As explained in the Supreme Court's decision to take up the case, a defendant in Kitsap County was tested on a Dräger machine and blew 0.116%, well over the legal limit of 0.08%.
He was charged with DUI, but he challenged the admissibility of the test result because the state regulation requires breathalyzers to take multiple measurements and round them to four decimal places, then calculate an average. Instead of rounding, the Dräger 9510 truncates to four decimal places.
That might not seem like a significant distinction, but in the world of DUI laws and prosecution, precision is everything.
"Any issue that has ever come up over decades of litigation around these DataMasters, these Drägers — any kind of breathalyzer test — is whether or not it's an accurate, reliable test," Rogers said, describing the dispute. "... the language of the law is very exact, and it has be be followed exactly."
Based on the discrepancy, the Kitsap County District Court concluded that all Dräger 9510 test results were invalid, and granted the defendant's motion. The state appealed the case, and the Supreme Court agreed to take it up directly because of its potential to impact DUI cases throughout the state.
The Clark County Prosecutor's office is aware of the Supreme Court case, Rogers said, and there's a similar case pending in Clark County District Court at the moment, in which a defendant who provided a breath sample on a Dräger 9510 is seeking to have the result suppressed.
The defendant in that case is represented by DUI attorney George Bianchi, who is also representing the defendant in the Kitsap County case and in another recent case along similar lines in King County, KING5 reported.
The Kitsap County District Court ruling concluded that the Washington State Toxicologist knew about the truncation issue when the Dräger 9510 machines were approved for use in 2010, but didn't disclose the issue until 2021.
"It was disheartening but it wasn’t a surprise," Bianchi told KING5. "We’ve had our concerns about this Dräger machine since it came out."
A decision from the Supreme Court would be binding on all counties and municipal prosecutions. If the Court affirms the Kitsap County decision, Rogers said, there might need to be a legislative fix to remedy the situation.
"It would absolutely affect some of our cases," she added, "however, we do not necessarily have to solely rely on a breath test to obtain a conviction for DUI."
Other evidence that a driver was under the influence can include their behavior, their performance on field sobriety tests and other indications of intoxication that police officers are trained to spot, she said.
There can also be cases involving blood draw tests, she said, or cases where the defendants refused to take breath tests, or DUI cases that involve drugs rather than alcohol.
Still, she estimated that breathalyzer results were the primary evidence in more than half of the county's DUI cases. The county has filed charges in about 1,100 DUI cases so far this year, she said, including both misdemeanor and felony DUI cases as well as vehicular assault where DUI was alleged.
That's on track to exceed the total for 2020 and 2021, both of which had about 1,200 cases, although those years were a bit lower than usual, she said — 2019 had about 1,600 case and 2018 had about 1,700.