“…the Draeger [breath test machine for DUIs] has generated tens of thousands of breath test result[s] … since 2010 in non-compliance with … WAC 448.16.060.” Judge Jahns, on behalf of all the Judges of Kitsap District Court.
The entire Kitsap Distict Court bench has spoken. All four judges agree. All Draeger breath test devices have not complied with the law since their inception. We are talking tens of thousands of breath tests since 2010. If you have a driving under the influence (DUI) case then contact the Tacoma DUI lawyers at Smith & White, PLLC. The reasoning of the court is simple. To summarize their decision: 1) the toxicologist was allowed to make reasonable rules about what is required for a valid test, 2)she created a rule that said the results should be rounded, 3) she had control over the machine’s software, 4) she required that the machine truncate, and not round, 5) she knows, or should have known, that in the scientific community truncate and round have different, specific meanings, 6) she knows, or should have known, that for scientific reliability of the blood alcohol concentration (BAC) that the same procedure should be used in both, 7) Likewise, she knew or should have known that the procedure the machine used needed to follow the administrative code that she created, and 8) she or her various subordinates then sworn, in thousands of cases, that the machine was following the code, i.e., that the machine was rounding and not truncating.
To make matters worse the Impaired Driving Section of the Washington State Patrol (WSP) Forensic Laboratory Services Bureau then sent out a deceptive letter addressing the issue. The Kitsap court determined that a number of the assertions in the letter were “false or misleading.” The letter, entitled “Potential Impeachment Disclosure” was false or misleading in a number of ways. She said that the Impaired Driving Section was notified June 3rd, 2021 that the Draeger potentially failed to comply with the Washington Administrative Code (WAC). However, the court found that they actually knew since the Draeger was approved in 2010. Also, that it “potentially” failed to comply with the WAC was similarly misleading as they knew that it had never complied with the WAC. Similarly, she was false or misleading when she said that this information was coming to light per the “Initial investigation.” Again, her office was on notice of this issue since its inception over a decade prior.