WA Supreme Court to hear the validity of breathalyzers used by police statewide

The Washington State Supreme Court has agreed to hear a case that is challenging the use of a breathalyzer carried by all law enforcement in the state to test a person’s blood alcohol level.

The court will take up an 89-page opinion by all four Kitsap County District Court judges that found the results of Drager 9510 breathalyzer are invalid and do not follow the Washington Administrative Code (WAC).

In its decision to hear the case, the commissioner of the court said Kitsap judge’s decision "has the potential to affect a great number of Washington prosecutions for driving under the influence," and that the cases involve "significant public interest questions in need of prompt and ultimate resolution in this court."

On Tuesday, three King County District Court Judges heard the same arguments by veteran defense attorney George Bianchi used the Kitsap County case. 

If the judges agree with Bianchi, King County would become the second county in the state to prevent results of the breathalyzer from being used in a DUI case.

"The State Toxicologist and breath technicians have said for seven years the Drager machine needs to do the calculation in performance with the administrative code, and then I found out that the machine does not do that calculation," said Bianchi.

Kitsap County Prosecutor Chad Enright agree to waive the typical appellate route and joined the Kitsap County judges in an effort to fast track their case to the Supreme Court, knowing it had statewide significance.

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

At issue is how the Drager breathalyzer calculates a person’s blood alcohol level. WAC mandates it must round the final reading to three decimal points, but the machine was instead programmed by the State Toxicologist to truncate the final number.

It’s an issue that’s been known over the last several years but has not been fixed, either by changing the WAC to add "truncate" into the language, or updating the software to round the final result.

The State Toxicologist is part of the Washington State Patrol, and programs and issues all breathalyzers used by all law enforcement in the state.

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The blood alcohol results produced by the Drager 9510 have been used in thousands of DUI cases since it was first deployed seven years ago.

WSP has now issued a proposed rule change to fix the WAC to conform to the Drager’s truncation calculation, rather than fix the software used by the machine to match the current WAC language.

The Supreme Court has not set a date for the hearing on the Kitsap County ruling.