Kitsap County judges disallowed DUI evidence from a machine manufactured by Dräger Inc. because it did not meet state admissibility rules. Dräger breathalyzers are used extensively by state law enforcement agencies, putting other DUI cases in doubt.
Four judges unanimously agreed with the defense’s claim that the software used in Dräger machines does not comply with state law.
A breathalyzer machine determines blood alcohol content by analyzing breath. State law prohibits driving with a BAC of 0.08% or higher.
The Dräger machines are supposed to average the result of four breath samples by first truncating the blood-alcohol level for each result to four digits, then rounding the result to three digits.
The machines do not round the result before averaging. As a result, the judges held, the machine cannot calculate whether the samples’ average is within the margin of error required by law.
Further, the court noted that the state toxicologist, who maintains the equipment, had known that the machines were noncompliant for over a decade and “submitted false or misleading testimony by declaration in tens of thousands of cases stating the Dräger will not generate a breath test printout where the mean is not calculated” in accordance with the law.
The court ruled Dräger generated breathalyzer results inadmissible in Kitsap County. That finding could jeopardize the use of breathalyzer results from Dräger machines throughout the state.
Kitsap County Prosecutor Chad Enright intends to continue enforcing DUI laws without relying solely on breathalyzer results. "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," Kitsap said according to a KCPQ report.
The case in question involved the driver of a single-car accident in May 2020. A Kitsap County sheriff's deputy administered a blood alcohol test to the driver at the scene using a portable Dräger breathalyzer. The result indicated BAC of 0.132%.
A request for comment from State Toxicologist Fiona Couper was referred to Washington State Patrol Communications Director Chris Loftis.
"With regard to the Kitsap County District Court ruling regarding ‘truncation’ versus ‘rounding’ terminology and practice in subject-sample-agreement protocols, we of course respect the Court's finding and authority," he replied to The Center Square. "Initial review of the matter indicates this began as an administrative oversight made by well-meaning professionals a number of years ago. While its potential ramification were not fully recognized earlier, it is now a matter of thorough review at the highest levels of our organization."
Loftis added, "We are not aware of a single case accepted as valid that would not have been using the rounding standard but are now looking at all appropriate mitigation strategies on the issue. In the meantime, the public can be assured that DUI arrest and prosecutions will continue across the state, including Kitsap County, using all available evidentiary resources appropriate to the locale."
A representative from Dräeger Inc. did not respond to a request for comment.
