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.

All four judges of the court agreed the state toxicologist violated state law when she approved software for the Dräger breathalyzer-- a device that is used to test a person’s blood-alcohol level.

The Dräger breathalyzer has been in the field since 2015 and is now used by nearly every law enforcement agency in the state.

The court agreed with lawyers representing Austin Keller that the software approved by then-state toxicologist, Dr. Fiona Couper, did not follow the calculations mandated by state law.

On May 9, 2020, Keller was involved in a single-vehicle crash in Bremerton. Court records showed a Kitsap County sheriff's deputy responded and smelled alcohol on Keller’s breath. He gave Keller a field sobriety test and Keller submitted to a blood alcohol test in the field using the portable Dräger breathalyzer.

The test resulted in a 0.132 blood alcohol level. The legal limit in the state is .08.  

Keller was arrested and is awaiting trial for driving under the influence.

"This is significant and it was significant to the court who spent three months reviewing this," said Tom Weaver, the attorney of record, representing Keller.

Weaver asked George Bianchi, a Seattle attorney who has been trying DUI cases for years, to join the case

Bianchi agreed and said he tried a similar attack on the state toxicologists’ software approval a year ago, but the case did not result in a conviction.

Weaver and Bianchi tried it again with a few tweaks in a motion hearing, challenging the legality of the software approval in March.  

All four judges chose to hear the arguments and issued an en-banc ruling this week

The judges issued two rulings: an 89-page ruling explaining their decision to their findings that the software did not follow state law, and an order stopping the use of results of the Dräger machine as evidence in all cases in Kitsap County.

But Bianchi said an attorney in other counties could use the ruling in their DUI cases.

"It can be accepted by other judges throughout the state," said Bianchi. "The state toxicologist approved software that can be used in the Dräger machine, which did not have the proper calculations and is being used by prosecutors and police."

It comes down to a technicality and not the validation of the blood alcohol test.

The machine takes four samples of a person’s breath and then calculates the median, the center point of all four results.  It then provides a median number that is truncated to several decimal points.

State law said the machine needs to truncate to four decimal points and then round up or down to three decimal points.

Because the rounding was not part of the final calculation, any result the machine produced using the software approved by the state toxicologist violated state law.

"While this ruling certainly makes proving a DUI more difficult, it does not prevent us from proving our cases," Kitsap County Prosecutor Chad Enright told FOX 13 News.

"We are advising law enforcement to continue to take breath tests, but to recognize that they will not be admissible in court and that the case cannot rely solely on breath tests," he said.

Washington State Patrol oversees the State Toxicology Lab and is responsible for distributing the Dräger breathalyzer with the proper software to all local law enforcement in the state.

"They have basically engaged in a cover-up," said Weaver. "The state toxicologist has known about this for years, did nothing about it and allowed all agencies to continue using the software." 

In a statement to FOX 13 News, the State Patrol’s Director of Communications Chris Loftis wrote, "..this began as a significant administrative oversight made by well-meaning professionals that has now been compounded by years of insufficient attention."

"We have not intentionally submitted false or inaccurate testimony or evidence nor would we ever do so out of respect for the law, the courts, and the rights of all Washingtonians we serve," Loftis said.

Enright would like to see the State Patrol "remedy’ the situation by updating the machine's software to match state law requirements as soon as possible.

Loftis said the Patrol was not made aware of the "language discrepancy until June of 2021 and once made aware, quickly notified potentially impacted parties."

He said the patrol has not received a software update but once it does, it will undergo testing and review and then be deployed to law enforcement statewide.

"The state toxicologist and the breath test program should follow their own rules, that's the problem here-- they didn't follow their own rules," said Bianchi.

The Kitsap Daily News was the first to report this story