Judges weigh future of blood alcohol breathalyzers, with 7 years of case on the line

A panel of three King County District Court judges heard oral arguments on Tuesday on the admissibility of blood alcohol readings from the breathalyzer used by all law enforcement in the state.

The three judges were empaneled because a motion to suppress the reading in the case of a suspected DUI driver was deemed to have ‘countywide significance.’

At issue is the Drager 9510 Breathalyzer—which is programmed and issued by the Washington State Patrol (WSP) to every law enforcement agency in the state—and how it calculates a person’s blood alcohol level.

"The state toxicologist and breath technicians have said for seven years the Drager machine needs to do the calculation in [accordance] with the administrative code, and then I found out that the machine does not do that calculation," said George Bianchi, a veteran attorney with 37 years of defending drivers suspected of DUI.

The Washington Administrative Code (WAC) says the device must round the result to three decimal points. Bianchi argued—and WSP agreed—the device truncates the mean of four sample readings to four decimal points, rather than rounding.

Bianchi was brought into the case to make the same argument he made earlier this year in the case of Kitsap County man accused of DUI. Realizing the significance of the argument, all four district court judges heard Bianchi’s arguments.

In June, the judge issued an 89-page ruling saying results from the Drager breathalyzer could not be admissible in court. Kitsap County Prosecutor Chad Enright responded by telling all law enforcement in the county not to rely on the breathalyzer results when building DUI case 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 has trained other troopers on to use the breathalyzer and do their own math to see if the device is within plus- or minus-10% of the mean reading.

He admitted in court that during his training, he was told the device rounds the final result, rather than truncates.

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

Get breaking news alerts in the FREE FOX 13 Seattle app. Download for Apple iOS or Android. And sign up for BREAKING NEWS emails delivered straight to your inbox.

The judges must decide if truncating the final result or rounding, as stated in the WAC, make enough of a different to suppress the blood-alcohol content in the DUI case. If they do, it could lead to the inadmissibility of BAC results made by the Drager breathalyzer in all King County DUI cases.

"Anyone that has been convicted of a point-15 or higher alcohol level has the ability to possibly go back and have their conviction overturned for that breath test reading," said Bianchi.

A conviction with a BAC level of .15 or above means mandatory minimum enhanced penalties. Jail time is doubled, license suspension is triple and fines are considerably higher. At this level, one-one hundredth of a percentage point can make a real difference in the penalty a person pays, including having the privilege of driving revoked.

The State Patrol told FOX 13 that it has made a decision going forward.

"WSP investigated two possible remedies to this issue: a software patch to be in compliance with the WAC, or a rules change within the WAC to be aligned with the current calibration methodology.  We have chosen the latter," said WSP spokesperson Chris Loftis.

The presiding judge did not give a timetable for the judge’s ruling.

Because King County is the largest county in the state, many jurisdictions are watching closely how the judges will rule in the case.