State v. Keller

545 P.3d 790

STATE of Washington, Appellant/Cross Respondent,

v.Austin River KELLER, Respondent/Cross Appellant.

No. 101171-7

Supreme Court of Washington, En Banc.

Argued October 26, 2023

Filed: April 4, 2024

Randall Avery Sutton, Kitsap County Pros. Attorney’s Office, 614 Division St., Ms-35, Port Orchard, WA, 98366-4681, for Appellant.

Thomas E. Weaver Jr., Attorney at Law, P. 0. Box 1056, Bremerton, WA, 98337-0221, for Respondent.

George L. Bianchi, The Bianchi Law Firm, P. 0. Box 127, Bellevue, WA, 98009-0127, Diana Lundin, Fury Duarte PS, 1606 148th Ave., Se Ste. 200, Bellevue, WA, 98007-6860, Howard Stanton Stein, Stein Lotzkar & Starr PS, 2840 Northup Way Ste. 140, Bellevue, WA, 98004-1433, Jason Scott Lantz, Law Offices of Geoffrey Burg, LLC, 720 3rd Ave., Ste. 2015, Seattle, WA, 98104-1814, for Amicus Curiae on behalf of Wa. Assoc. of Criminal Defense Lawyers.

Dionne Padilla-Huddleston, Jacob William Dishion, Leah E. Harris, Wash. Attorney General’s Office, 800 Fifth Ave., Ste. 2000, Seattle, WA, 98104-3188, for Amicus Curiae on behalf of Department of Licensing.

GORDON MCCLOUD, J.

¶ 1 On May 9, 2020, Austin River Keller drove his car into a ditch and later failed a breath alcohol test. That started a chain of events that led the Kitsap County District Court to suppress—to exclude from evidence in court—breath alcohol test results produced from the Dräger Alcotest 9510 machines in Keller’s case and in all other DUI (driving while under the influence of an intoxicant) cases in Kitsap County District Court.. The district court concluded that those breath test results violated state statutes and regulations and, hence, that the State would be unable to lay a foundation for their admission under this court’s precedent and our state’s evidence rules.

¶ 2 The district court is correct that 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). 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. And, importantly, the district court is also correct that despite those statutes and regulations, the Dräger machine 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.

¶ 3 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. It therefore erred in concluding that the machine’s failure to do those necessary mathematical calculations itself rendered the results invalid and inadmissible under RCW 46.61.506, State v. Baker,² and our evidence rules.

¶ 4 We therefore reverse. We hold that the relevant statutes and regulations do not require the Dräger machine itself to perform the mean and the plus or minus 10 percent range calculation at the time of the test. As the State acknowledges, the State must certainly comply with those statutes and regulations. But it can establish those required pieces of the foundation for admission of breath test results by doing the math discussed above in a different manner (as long as that different manner meets all other rules on admission of evidence in a criminal trial).

¶ 5 We reverse the district court’s evidentiary rulings and suppression order and remand for further proceedings consistent with this opinion.³

Facts and Procedural History

I. Background on alcohol intoxication and breath testing instruments

¶ 6 Before discussing the specifics of this case, we provide some necessary background on alcohol intoxication and the breath testing instruments involved here. Alcohol causes impairment by impacting the function of the central nervous system, particularly the brain. State v. Brayman, 110 Wash.2d 183, 187, 751 P.2d 294 (1988). Alcohol reaches the central nervous system through the blood. Id. Once in the blood, alcohol is also transferred from the blood into the deep alveolar sacs of the lungs, where it is expelled from the body through the breath. Id. at 189, 751 P.2d 294. Thus, there is "a reasonable and substantial relationship between breath alcohol and impairment." Id. at 195, 751 P.2d 294. But that reasonable and substantial relationship exists only between deep lung alveolar breath and impairment, not between mouth breath and impairment. Id.; Clerk’s Papers (CP) at 48 (Finding of Fact (FF) 5.1). Breath alcohol content (BrAC) testing instruments are therefore designed to measure the alcohol in this deep lung air, not the alcohol in mouth breath. Brayman, 110 Wash.2d at 188, 751 P.2d 294.

¶7 Instruments for testing breath alcohol levels have been used in Washington for decades, starting with the Breathalyzer. Baker, 56 Wash.2d 846, 355 P.2d 806. The Breathalyzer analyzed a breath sample using the infrared spectroscopy method. Id. at 851-52, 355 P.2d 806 (describing the method).

¶ 8 In Baker, this court first established the foundational requirements for admitting breath tests performed by a Breathalyzer instrument into evidence. Id. at 852, 355 P.2d 806. We held that Breathalyzer results were inadmissible unless the State could show that (1) the instrument was properly checked and in proper working order at the time of the test, (2) the chemicals used were of the correct kind and proportion, (3) the subject had nothing in their mouth at the time of the test, and (4) the test was given by a qualified operator and in the proper manner. Id.

¶ 9 The legislature granted authority to the state toxicologist to approve methods for maintaining Breathalyzer instruments and administering Breathalyzer tests. State v. Peterson, 100 Wash.2d 788, 789-90, 674 P.2d 1251 (1984). We ruled that the State had to comply with those toxicologist-approved regulations and with the Baker requirements for the Breathalyzer results it offered to be admitted into evidence. Id.

¶ 10 Eventually, the DataMaster instrument replaced the Breathalyzer, and a similar set of foundational requirements was promulgated for that machine in chapter 44-12 WAG. City of Seattle v. Allison, 148 Wash.2d 75, 80, 59 P.3d 85 (2002). Like the Breathalyzer, the DataMaster analyzed breath samples using the infrared spectroscopy method. State v. Wittenbarger, 124 Wash.2d 467, 476, 880 P.2d 517 (1994). Unlike the Breathalyzer, the DataMaster possessed "the technological capability of monitoring its performance at each breath test." Id. at 482-83, 880 P.2d 517.

This capability meant that the DataMaster was "self-certifying." City of Seattle v. Ludvigsen, 162 Wash.2d 660, 678, 174 P.3d 43 (2007) (Madsen, J., concurring) (citing Wittenbarger, 124 Wash.2d at 483, 880 P.2d 517).

¶ 11 The DataMaster tested itself for accuracy by "perform[ing] a control test of a simulator solution each time a breath test is administered." Wittenbarger, 124 Wash.2d at 483, 880 P.2d 517. As former WAC 448-12-210 (1985), repealed by Wash. St. Reg. 91-06-022 (Mar. 29, 1991), provided, "The simulator test will ensure the correct operation and calibration of the instrument and thus will certify the instrument with each test." The instrument then printed the results of the simulator test along with the BrAC test results on a breath test ticket. Wittenbarger, 124 Wash.2d at 483, 880 P.2d 517. Thus, the breath test ticket was "a crucial document in determining whether the [instrument] was operating properly during a particular test" because it showed that when given a control sample containing a known quantity of alcohol, the machine accurately measured and reported that known quantity. Id. We upheld the approval of the DataMaster and its operating protocols in State v. Ford, 110 Wash.2d 827, 755 P.2d 806 (1988), and State v. Straka, 116 Wash.2d 859, 810 P.2d 888 (1991). See Allison, 148 Wash.2d at 80, 59 P.3d 85.

¶ 12 In 1985, the state toxicologist added a requirement to the regulations: the results of each breath sample measurement must fall "within plus, or minus ten percent of the average of the two measurements." Former WAC 448-12-220 (1986), repealed by Wash. St. Reg. 91-06-022 (Mar. 29, 1991). As discussed further below, this requirement is designed to ensure that the machine tests deep alveolar air, not mouth breath.

¶ 13 In 2004, the legislature codified the foundational breath test admissibility requirements in RCW 46.61.506. The legislature stated that it intended to "reduce the delays caused by challenges to various breath test instrument components and maintenance procedures." Laws of 2004, ch. 68, § 1. According to this legislation, such challenges, while still allowed, no longer go to admissibility of test results but, rather, to their weight. Id.; see RCW 46.61.506(4)(c). The state toxicologist responded to the statutory changes by repealing the prior breath testing regulations and promulgating a new set of breath testing regulations in chapter 448-16 WAC. CP at 51 (FF 5.12 (citing Ludvigsen, 162 Wash.2d at 677-78, 174 P.3d 43 (Madsen, J., concurring))).

¶ 14 The foundational admissibility requirements in RCW 46.61.506 incorporate aspects of the Baker factors and the state toxicologist’s regulations. Relevant here, under this law, BrAC test results are admissible at trial only if the State "produces prima facie evidence" that the breath samples taken by the testing...