Court faults State Toxicologist for breathalyzer calculation issues that could overturn DUI convictions

The Washington State Toxicologist is being blamed for what could prove to be the unwinding of tens of thousands of DUI cases where blood-alcohol readings from a breathalyzer were used in the conviction.

In an 89-page ruling last week, all four Kitsap County District Court judges said the calculation said the State Toxicologist, Dr. Fiona Couper, and her staff at the Washington State Patrol (WSP) Toxicology Lab in Seattle did not follow blood-alcohol level calculations as required by law when taking readings from the Dräger breathalyzer.

The Dräger breathalyzer is a device that is used to test a person’s blood-alcohol level and is used by nearly every law enforcement agency in the state. 

Instead of rounding the level to three decimal points, the Dräger machine was programmed to truncate the number, the court discovered.  

"The state toxicologist has known for over a decade that the Dräger does not comply with the administrative code and they have basically engaged in a cover-up," said attorney Tom Weaver, who argued in front of the judges in the case of Austin Keller.

Keller, of Bremerton, is currently on trial for driving under the influence in 2020 after sheriff's deputies found him on the side of the road, allegedly smelling alcohol and finding his vehicle in a ditch.

Court documents say Keller agreed to a field sobriety test and an on-site breathalyzer test. Documents say the breath test showed a blood-alcohol level of 0.131. The legal blood-alcohol level in the state is 0.08.

Weaver and veteran DUI attorney George Bianchi were able to convince the panel of judges that the breathalyzer result was not admissible because the software in the machine was not programmed correctly by the state toxicologist to follow state law.

Kitsap judges' ruling could eventually invalidate tens of thousands DUI convictions statewide

A Kitsap County District Court ruling invalidated the results of a breathalyzer used by law enforcement that could have state-wide implications in thousands of DUI cases.

"The state toxicologist approved software used in the Dräger machine, which did not have the proper calculation," said Bianchi.  "She knew that’s what she did, and she testified it did the appropriate Washington Administrative Code (WAC) calculation when it never was."

It’s another issue in a two decades-long string of issues that have plagued the Toxicology Lab. The lab performs drug and alcohol tests for police and prosecutors around the state.

In 2018, the toxicology lab set up its own methamphetamine lab for training purposes. 

The meth lab was blamed for contaminated evidence. Seattle Municipal Court suppressed three years’ worth of toxicology results because of the contamination, according to the ruling.

Washington State Patrol, which runs the lab, admits it is also fighting a huge backload of testing in DUI, drug and sexual assault cases, causing "mammoth delays" in trials.

The lab is also responsible for programming and issuing all Dräger devices used by city, county and state law enforcement agencies.

Ten years ago, the office made a switch from the Datamaster to the Dräger Breathalyzer.  The software was approved by Dr. Couper in 2010, but the deployment of the Dräger to law enforcement didn’t happen until 2015.

"There's only one machine and that's the Dräger, and it's being used with everyone," said Bianchi.

There is no estimation at this time of how many cases used the breathalyzer reading as evidence to convict someone of drunk driving, but it could be in the thousands since it went into service seven years ago.

WSP, which has ultimate authority over Toxicology and the hiring of the State Toxicologist, admitted to FOX 13 after the Kitsap Court decision that there have been issues with the Dräger’s calculation, calling it "a significant oversight… compounded by years of insufficient attention," WSP Director of Communications Chris Loftis told FOX 13.

"Our agency is now studying the situations and systems that might have contributed to this regrettable challenge," he said.

For now, the suppression of breathalyzer evidence is only in Kitsap County.  

Bianchi said a judge in a Kent courtroom is considering the same argument.

"It can be accepted by other judges throughout the state," said Bianchi. "It’s obvious to me that she knew this, she testified that it did the appropriate WAC calculation when in fact, it never was".

It’s anticipated other DUI attorneys and prosecutors will be analyzing all 89 pages of the Kitsap Court ruling to see if it can be applied in their local cases.

"If you were to poll jurors, you will find they rely heavily on that (blood alcohol) number for a conviction," said Bianchi