The Washington Supreme Court just released their opinion in the State v. Sliger case concerning breath alcohol foundation under RCW 46.61.506. 

Sliger was involved in a collision with a dirt bike where the rider died as a result. He admitted consuming alcohol prior to the collision. During breath test process, the operator asked whether he had a foreign substance in his mouth and Sliger said no. The operator then did a visual mouth check and observed small strands of tobacco in Sliger's teeth. (Sliger previous spat out the chew). The operator made note of this and proceeded with the breath test. The result was over 0.08g/210L of breath. Sliger was charged and later challenged the trial court's denial of his motion to suppress the breath test based on an allegation that he had a foreign substance in his mouth. **Note, this case was on discretionary review of the pretrial ruling, which is an unusual procedural posture.**

The Washington Supreme Court reviewed the foundational requirements under RCW 46.61.506 related to foreign substances. Under WAC 448-16-040, “[a] determination as to whether a subject has a foreign substance in his or her mouth will be made by either an examination of the mouth or a denial by the person that he or she has any foreign substances in their mouth.” The term “foreign substances” is not defined in the statute or regulation.

In the opinion, the Washington Supreme Court disagreed with Sliger that small strands of tobacco are a foreign substance.  "Interpreting “any” to mean any quantity of a foreign substance is not a reasonable interpretation of the statute considering the underlying policy and purpose of the statute," which was to curtail impaired driving and allow the fact finder to weigh the breath test evidence." The Court recognized that the Legislature favors swift and certain consequences for impaired driving. 

In accordance with Fernandez, a more reasonable interpretation is that “any foreign substance” refers to any kind of foreign substance capable of impacting the

reliability of the test results." Both the operator and the BAC tech testified at the motion hearing that the small strands of tobacco would not impact the reliability of the breath test.

However, Prosecutors need to heed this warning at the end of the majority opinion: "To be clear, the State does not need to provide expert testimony in every case to meet its prima facie burden for admissibility if an officer observes no foreign substance or the defendant denies the presence of a foreign substance. However, in cases involving the debatable presence of a foreign substance, the State makes a prima facie case only by presenting an expert to attest that the substance does not impact the reliability of the test."

Ultimately, the holding was that the breath test is admissible because the State met the prima facie standard under the facts of this particular case.

Your TSRPs, Brad and Michelle will be here for you if you have questions on this or your impaired driving cases generally. Feel free to reach out any time.