Court overturns Kitsap County Ruling that the Drager instrument must calculate the mean by the method approved by the toxicologist as it relates to admissibility under 46.61.506, at the time the test is provided.  The Supreme courts majority opinion confirms that:

1) State law places strict limits on the admission of breath test results into evidence. A breath test is “valid” if it is performed “according to methods approved by the state toxicologist.” RCW 46.61.506(3). And a breath test is admissible only if the breath samples “agree to within plus or minus ten percent of their mean to be determined by the method approved by the state toxicologist.” RCW 46.61.506(4)(a)(vi).

2) The district court is also correct that in 2010, the state toxicologist “approved” “the method” for performing that calculation; it was memorialized in former WAC 448-16-060 (2010). That method required the mean of the four individual test results1 to be “rounded” to the nearest four decimal places prior to determining the plus or minus 10 percent range. Former WAC 448-16-060.

3) The district court is correct that despite those statutes and regulations, the Dräger instrument has never rounded the mean before calculating the plus or minus 10 percent range. Instead, the Dräger was programmed to truncate the mean before performing that calculation.

But the district court erred in ruling that those statutes and regulations require the Dräger machine itself to perform the mean and the plus or minus 10 percent range calculation in accordance with former WAC 448-16-060’s rounding method.  The district court therefore erred in concluding that because the instrument was not programed to perform this calculation by rounding ( the method approved by the toxicologist) its mathematical calculations rendered the test results invalid and inadmissible under RCW 46.61.506, State v, Baker, and our evidentiary rules. The Supreme court reversed holding no relevant statute or WAC requires the Dräger instrument to perform the mathematical calculation range at the time of the test, and the State can prove the foundational admissibility for the mathematical calculation of the mean and the plus or minus 10 percent range at a different time or manner. 

Find the case here. 

The state and defense argued their positions to the Washington Supreme Court on 10/26/23 regarding whether the State can meet its prima facie burden for admissibility of the breath test ticket. Defense argument took a bit of a strange turn when they argued that WAC 448-16-060(1) was at issue, that the instrument should not be truncating the results at all, in addition to how the Draeger calculated the mean at the time of the test vs. what is required by statute. Some Justices appeared confused with the math and how the instrument itself operates.  Just from argument, it appeared most of the justices understood  that the argument was simply an issue of statutory construction and that no rule or statute requires that the mean calculation for admissibility be done at the time the test is given and the instrument accepts the test. Both of the state attorneys did a good job referring to what a valid test actually is under the rule, and that the rule does not include anything regarding sample agreement.  To watch the hearing, you can find it here.  https://tvw.org/video/washington-state-supreme-court-2023101187/

If you cringe every time the instrument is called a machine, fair warning. 

Melanie Thomas Dane-WA TSRP 

State v. Samantha Hall-Haught. Unpublished (publication denied).  

On July 31, 2023, Division One of the COA rejects the defendant’s challenges to her Island County Superior Court conviction for vehicular assault. The Hall-Haught Opinion’s opening paragraph summarizes the ruling on the main issue in the case (Sixth Amendment confrontation right) as follows:

On appeal, [Hall-Haught] contends that she was deprived of her constitutional right to confront the witnesses against her when lab results indicating THC in her system were admitted into evidence without the testimony of the technician who performed the test. Because the supervisor who testified and was available for cross examination had independently reviewed the testing and the results and testified to her own opinions about them, we conclude that Hall-Haught’s confrontation rights were not violated.

Key excerpts from the Hall-Haught Opinion include the following: In Washington, expert witnesses may testify to their own conclusions, even when they rely on data prepared by non-testifying technicians. State v. Lui, 179 Wn.2d 457, 483, 315 P.3d 493 (2014). Because Harris testified to her own independent conclusion, HallHaught’s confrontation rights were not violated." Legal Update - 11 July 2023 . . . . While the testimony of technicians “may be desirable, . . . the question is whether it is constitutionally required.” Lui, 179 Wn.2d at 480. “[A] break in the chain of custody might detract from the credibility of an expert analysis of some piece of evidence, [but] this break in the chain does not violate the confrontation clause.” Lui, 179 Wn.2d at 479. Thus, only the “ultimate expert analysis, and not the lab work that leads into that analysis,” is subject to the confrontation clause requirement. Lui, 179 Wn.2d at 490. . . . . Here, as in [City of Seattle v. Wiggins, 23 Wn. App. 2d 401 (2022)], Harris testified that she was a supervisor and had reviewed the report prepared by a different forensic scientist, rather than being present during the testing. However, unlike in Wiggins, Harris specifically testified that she “came to [her] own independent conclusion” following her review of all the data in the file. Thus, Harris was not merely “parrot[ing] the conclusions” of her subordinates, which is not permitted by the confrontation clause. Lui, 179 Wn.2d at 483. Instead, she was “rely[ing] on technical data prepared by others when reaching [her] own conclusions,” which is permitted without the testimony of each analyst. Lui, 179 Wn.2d at 483.

The Opinion in State v. Hall-Haught can be accessed on the Internet at: https://www.courts.wa.gov/opinions/pdf/842471.pdf ************************

Register now!

East Wenatchee:  September 14th -15th  Hosted by the East Wenatchee Police Department. 

Pasco: October 5-6^th Hosted by Pasco Police Department.  

Registration links for East Wenatchee and Pasco can be found under the impaired driving resources page.

As always, our trainings are free for TSRP members.  

Contact Melanie Dane, mdane@mrsc.org, for more details. 

Attached are 2 court orders recently denying defense motions to dismiss and suppress for Toxicologist mismanagement.  

State v. Dodson

State v. Baker 

The short answer is NO. Neither of the above impact the reliability of the blood samples which would impact admissibility.  See the expired vials section of the website for more information. 

Melanie Dane

3/16/23 

Dozens of students at the University of Massachusetts Amherst were hospitalized over the weekend after participating in the dangerous "borg" drinking challenge that has gained popularity on TikTok, officials said. Borgs, or "blackout rage gallons," are one-gallon containers of water that are emptied a bit, and then filled with alcohol and some kind of flavoring, such as water-enhancing drops or powdered drink mixes. A "borg" contains at least 16 servings of alcohol-a level which is deadly for most people even when spread over a day.   In total, 46 students were hospitalized, but all were eventually medically cleared and discharged back to campus or home with injuries deemed not life-threatening. "Consuming this much alcohol would be fatal for the vast majority of people, even if spread out over a full day," Dr. George F. Koob, director of the National Institute on Alcohol Abuse and Alcoholism at the National Institutes of Health, told CBS News.  For more, click the link below.  

Dozens of UMass students hospitalized after consuming "borgs" (yahoo.com)

Information on this free webinar can be found on the members page under Impaired Driving Resources and Regional Trainings. You must register prior to attending and the course is Free.  

Recent Opinions of Note:  Source: https://www.trafficresources.org/newsletter

Search of home leading to impaired driving arrest: Consent, exclusionary rule, attenuation doctrine.

The Wyoming Supreme Court provides an excellent discussion of several Fourth Amendment concepts in this case that has the unusual twist of being an impaired driving case that addresses the Fourth Amendment protections of a home. Wyoming Highway Patrol Trooper Undeberg received a report that a car had crashed into a ditch and that the driver appeared intoxicated. Upon running the plates, the Trooper drove to the home of the owner, Nancy Hawken. The Trooper encountered a man who was the owner’s husband. Upon asking to speak to Ms. Hawken, the Trooper followed Mr. Hawken into the mudroom of the home without invitation and without seeking permission. Ms. Hawken came to the mudroom and then went outside to talk with Trooper Undeberg after which Ms. Hawken was arrested for driving under the influence. Ms. Hawken filed a Motion to Suppress claiming Trooper Undeberg’s entry into the home violated the Fourth Amendment. In ultimately finding that Ms. Hawken’s Fourth Amendment rights were violated by the Trooper in entering the home without invitation and without asking permission, the Wyoming Supreme Court rejected the State’s argument that the Trooper entered with implied consent, noting that mere acquiescence is not enough to infer consent. The Wyoming Supreme Court then addresses the Exclusionary Rule and the three factors of the attenuation doctrine exception to the Exclusionary Rule. The Wyoming Supreme Court ultimately remands the case to the trial court to determine whether the Trooper’s unlawful intrusion required suppression. Hawken v. State, 2022 WY 77, 2022 Wyo. LEXIS 73 (June 16, 2022)

Wisconsin's OWI offenders graduated-penalty system found defective under North Dakota v. Birchfield.

In 2017, when Scott Forrett was charged with seventh offense OWI, Forrett had 5 prior convictions and one revocation of driving privileges for refusing a warrantless blood test upon suspicion of impaired driving. The Wisconsin graduated-penalty statute included as prior offenses suspensions or revocations of driving privileges for refusing to submit to a chemical test, including a warrantless blood test, upon suspicion of impaired driving. North Dakota v. Birchfield, 579 U.S. 438 (2016) held that a non-consensual, warrantless blood test was unreasonable under the Fourth Amendment. Fossett argued that the revocation of privileges was based on his refusal to submit to an unreasonable search (warrantless blood draw) and if the revocation of privileges had not been included as an offense, he would have faced a sixth offense OWI which carried lesser penalties. The majority opinion held that using the revocation of privileges for refusing a blood test as a prior offense resulted in Fossett being criminally punished for refusing an unconstitutional search in violation of Birchfield because the sentence for a seventh OWI offense was greater than a sixth OWI offense. The dissent disagreed noting that using a revocation as an offense is merely increasing the sentence for the present offense based on defendant’s prior criminal history, which has been repeatedly held not to be new jeopardy or improper punishment for the prior offense. State v. Forrett, 2022 WI 37, 2022 Wisc. LEXIS 51, (June 3, 2022)