On November 5, 2014, the Washington State Patrol (WSP) rather quietly unveiled the next breath test machine that they planned to use to collect evidence in DUI cases across the state. This new breath test machine is called the Draeger 9510, and it replaces the Datamaster and Datamaster CDM breath test machines, which had been used in Washington State for about the last 30 years. Upon its unveiling, the Draeger was being touted as the best breath machine to ever be created, and the WSP seemed to be quite confident that some of the headaches that came along with the Datamaster machines would be alleviated and potentially eliminated. Unfortunately for the WSP, the Draeger launch has not gone as smoothly as they would have liked.
A fight against the admissibility of this machine has been launched by the defense bar in several counties in Washington State. The epicenter of that fight is right here in Snohomish County, where a defense group has raised funds to hire experts in an attempt to identify potential issues with the Draeger. Breath test machines are quite complicated not only in the science of how the alcohol levels are determined, but also in the software and computer programming involved, which controls how the machine operates. To better understand how the Draeger machine works, the defense bar wanted and needed more than just the manual or the word of the state-hired breath test technicians. We needed to hire an expert witness who is able to examine the Draeger piece by piece to see how exactly this machine works, and more importantly, what problems potentially lie inside the machine’s software.
Let us fast forward to about a year after the WSP deployed this machine in Washington State. On November 17, 2015, motions were brought in front of a group of Snohomish County District Court Judges surrounding the defense’s request to get more access to and information about the Draeger breath test machine. Seeking information from the opposing side of a legal case is called a discovery request, and that is what the defense bar put forward to the court in this case.
The State objected to handing over certain pieces of information about the Draeger machine. In support of the defense’s discovery request, the defense bar gathered funds to hire an expert witness, who would have the necessary knowledge and experience to analyze the Draeger. The expert, Mr. Samuel Felton, testified that he would not be able to determine the accuracy of the Draeger software with only the embedded software source code. Instead, he needed to understand the process involved in the creation of the software.
To gain this understanding, Mr. Felton testified the Draeger machine analysis required dynamic testing, which is a process of comparing what the embedded software code should do with what it actually does. Mr. Felton testified that this type of testing would take about 6 to 8 weeks, and would require about 5,000 hours to complete. In order to complete this type of extensive testing, the defense bar requested to be given access to two Draeger machines. In a somewhat surprising, and well-written ruling, the Snohomish County District Court Judges found that the items that the defense bar had requested from the prosecution were reasonable and discoverable, and therefore the State was ordered to hand over two Draeger machines to the defense and its expert so that testing on the machines could be performed.
This ruling was a relatively big win for defense attorneys in Snohomish County, and indirectly for all defense attorneys and DUI defendants around the State. After this ruling, Snohomish County has told its troopers that the Draeger breath test machine should not be utilized unless necessary, and therefore the WSP is having to go through the effort of giving blood tests in the high majority of its DUI arrests. There have also been a large number of Draeger DUI cases in Snohomish County that have consolidated themselves with the leading DUI case under which the aforementioned litigation was held.
At this time there are around a hundred DUI cases in Snohomish County that are all awaiting further rulings regarding the Draeger machine and its reliability and admissibility. The hope for the defense is that the evaluation of the Draeger will show fatal flaws with the machine’s ability to accurately establish a person’s BAC, thereby eliminating its admissibility in a criminal DUI case. However even if the machine is found to be admissible, there will be a large group of DUI cases that will all be set back on the trial track at the same time. The State will be put in the position of having to litigate all of these cases at the same time, which can only be beneficial for those that have fought to ensure that the State’s evidence is tested before it’s used against them. That fight continues, but so far so good.