Seattle Municipal Court (SMC) judges have denied a motion from defense to suppress breath alcohol (BAC) readings obtained from the Draeger Alcotest 9510 in a ruling issued on January 3, 2023.
Having determined this to be an issue of citywide significance pursuant to SMC Local Rule 8.2.4, a panel consisting of Judge Catherine McDowall, Judge Andrea Chin, Judge Anita Crawford-Willis and Judge Damon Shadid held an en banc hearing on December 13, 2022.
Approximately 95 Seattle Municipal Court cases have been consolidated into this litigation. In the consolidated cases each defendant is charged with DUI or Physical Control. Each defendant submitted to a breath alcohol test on the Draeger Alcotest 9510 instrument.
The Washington state legislature established criteria for the admissibility of a breath alcohol test in RCW 46.61.506. The purpose of these foundational requirements is to ensure that competent evidence is admitted at trial. One of the foundational criteria for admissibility of the tests is that the breath samples obtained by the testing machine fall within 10% of the mean, calculated by a method to be approved by the State Toxicologist.
The defendants challenged the admissibility of the breath alcohol tests obtained by the Draeger Alcotest 9510 instrument because the published method approved by the toxicologist in Washington Administrative Code (WAC) 448-16-060 differed slightly from the method used by the Draeger instrument. After the discrepancy was discovered, the State Toxicologist promulgated a new WAC, effective November 6, 2022, which approved the method used by the Draeger machine as a valid way to calculate the 10% of the mean requirement.
The en banc panel ruled that the new WAC applied retroactively to breath tests performed on Draeger instruments before the WAC was changed. The court alternatively ruled that even if the WAC amendment did not apply retroactively, the difference in the method used by the Draeger and the method approved in the prior version of the WAC did not justify suppression of the breath tests. The court further ruled that the State Toxicologist’s actions in amending the WAC were not arbitrary and capricious and did not justify suppression of the tests.
Therefore, the court denied the motion to suppress breath tests performed on the Draeger Alcotest 9510 on this basis. Cases consolidated for this motion will be set for status hearings on February 7, 2023.