Seattle Attorneys Blog
To admit evidence of a breath test in a Washington criminal case, the state must produce prima facie evidence of certain facts, including that the tested person did not have any foreign substances in their mouth in the fifteen minutes before the test. RCW 46.61.506. The state can make this showing with evidence a check of the person’s mouth found no foreign substances or evidence that the person denied having anything in their mouth.
According to the appeals court’s unpublished opinion, the defendant was involved in a dirt bike collision. He told the deputy on the scene that he had consumed alcohol a few hours earlier. The deputy said the defendant had chewing tobacco in his mouth but removed it at the scene. The deputy arrested the defendant for driving under the influence and took him to jail.
At the jail, the deputy prepared to give the defendant a breath alcohol test. He asked if the defendant had anything in his mouth and the defendant answered no. The deputy observed strands of tobacco in the defendant’s teeth that were not taken out before the test.
The defendant was charged with vehicular homicide and moved to suppress the breath test results.
At the suppression hearing, the deputy testified he did not believe the tobacco strands were a foreign substance based on his training. A trooper, who was also a breath test technician and instructor, testified about the importance of the machine measuring alcohol from the lungs. Checking the person’s mouth and asking if they have anything in their mouth is done to ensure there is no mouth alcohol. The machine also registers an invalid sample if it detects mouth alcohol. He testified he would “have no concerns with the breath test” if there were “very small amounts” of bread or tobacco on a person’s teeth. The trooper acknowledged on cross examination that an officer would be required to remove a foreign substance if the person said they did not have anything in their mouth but the officer knew they did.
The trial court concluded the prosecution had presented prima facie evidence that the defendant did not have a foreign substance in his mouth based on his denial. The court noted the defendant could use of evidence of the strands of tobacco in the defendant’s teeth to challenge the test’s validity at trial.
The defendant appealed, challenging the court’s finding that the defendant had chewing tobacco in his mouth but removed it prior to being transported to the jail and the court’s conclusion the state had met its burden of presenting prima facie evidence the defendant did not have a foreign substance in his mouth based on his denial.
The appeals court noted the regulations on administering a breath test provide for two alternative methods of determining if there is a foreign substance in the person’s mouth, examination or denial. If interference is detected during the test or if the test records an invalid result, the test is repeated. WAC 448-16-040.
The defendant acknowledged that the deputy could have relied on the his denial to meet the requirement if the deputy had not also checked the his mouth. He argued, however, that after the deputy observed the strands of tobacco, the evidence did not support the finding the defendant had removed the tobacco before the test.
The court agreed that an officer who knew the person had a foreign substance in his mouth could not then rely on a denial, but the case turned on whether the strands of tobacco remaining in the defendant’s teeth constituted a foreign substance.
The defendant challenged the court’s finding he had removed the tobacco from his mouth because there were still strands in his mouth.
The appeals court concluded that a distinction between a “lump” and “tiny strands of tobacco” was supported by both the law and the evidence.
The trial court found tobacco was a foreign substance and that the defendant removed the tobacco from his mouth. The trial court did not find the strands remaining in his mouth constituted a foreign substance.
The appeals court noted that a “foreign substance” is one that “adversely affect[s] the accuracy of test results.” City of Sunnyside v. Fernandez. The appeals court noted that, under this definition, tobacco could be considered a foreign substance when there was a sufficient amount present to adversely affect the breath test. The appeals court noted interpreting the statute to render the test inadmissible if any amount of a foreign substance was present “would lead to absurd results.”
The appeals court determined evidence supported the finding the defendant removed the foreign substance. The appeals court further concluded that the trial court’s conclusion that the defendant’s denial constituted prima facie evidence was not an error because the deputy was not otherwise aware that any other foreign substances were present.
The appeals court affirmed the denial of the motion to suppress and remanded to the trial court.
If you are facing a DUI or other alcohol-related charges, it may be possible to challenge the test results. An experienced Washington DUI defense attorney can help. Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation.