Lawsuit filed against Washington State Patrol official over breath test machines

BREMERTON — A lawsuit filed against the Washington State Patrol official responsible for the state’s breath test machines used to measure the intoxication of drunken-driving suspects alleges she violated the rights of suspects who had their licenses revoked.

The lawsuit follows a ruling last week that barred breath tests from being used against drunken-driving suspects in Kitsap County courts, the Kitsap Sun reported.

The lawsuit filed Wednesday in Kitsap County Superior Court names one drunken-driving suspect as the plaintiff. It claims state toxicologist Fiona Couper filed false statements vouching for the legality of the machines and “deprived the plaintiff of due process.” It seeks to be certified as a class action.

The four District Court judges tossed the breath machine results in all drunken-driving cases before the court. The judges also found that Couper “submitted false or misleading testimony by declaration in tens of thousands of cases.”

About 81,000 people were tested over the past decade, according to the suit filed by David LaCross on behalf of Nicholas Kori Solis, 29, of Bremerton.

The lawsuit zeroes in on the process the state uses to revoke a driver’s license after they are accused of drunken driving. This process is administrative, not criminal, and the breath test results are admitted to prove the driver was impaired to allow the state to revoke their driver’s license.

The lawsuit seeks an unspecified amount of money for damages, among other remedies.

Solis was arrested March 19 by a state patrol trooper who observed him driving 88 mph on state Highway 3, according to court documents.

In addition to signs of impairment, the trooper tested Solis using the Dräger breath test machine and found Solis had a blood alcohol content reading of about .10. He was charged in Kitsap County District Court, pleaded not guilty and entered a diversion agreement with prosecutors.

The issue is how the machines process the results of breath tests. The state limit for blood alcohol content is .08, but as the machines perform the required calculations, they produce results that contain more than two digits.

State law says the numbers are to be “rounded,” but instead, the software had been “truncating” them, or cutting off the numbers at a certain decimal point, a fact the judges found Couper knew or should have known.

The practical results of truncation vs. rounding can actually benefit defendants — as rounding a number could result in it increasing and showing a person was perhaps more intoxicated, something that cannot happen when the numbers are simply cut off.

However, the judges ruled that didn’t matter.

What matters is the machines have not been following the law, and Couper had certified that they did comply with the law when they did not, the judges found.

The Kitsap Sun forwarded a copy of the lawsuit to Couper and State Patrol spokesperson Chris Loftus for comment.

“Our long-standing policy is to refrain from comment on pending litigation,” Loftus wrote in an email.

After the court’s ruling last week, Loftus denied that Couper intended to mislead judges and said the agency was working to bring the software that runs the machines into compliance with the law.

Couper knew that the machines were not complying with the law since at least June 2021, according to a notice the State Patrol sent to prosecutors, but the agency did not correct what Loftus characterized as a “discrepancy.”

However, in the June 2021 notice, the State Patrol only stated the Dräger machines were “potentially” out of compliance with the law.

The ruling suppressed the breath test evidence — meaning it cannot be introduced to a jury deciding a case — but does not dismiss pending drunken driving cases.

It directly affects cases filed in Kitsap District Court, not the municipal courts in the county. However, attorneys said they expect attorneys for drunken-driving defendants would use the ruling to have breath test results tossed from court.

That apparently has already happened at least once.

On Wednesday, the same day Solis’ lawsuit was filed against Couper, a judge in Kent Municipal Court tossed out the breath test results in one case based on a similar motion the Kitsap County District Court decided.

Kitsap prosecutors said they can continue to enforce drunken driving laws without the breath tests and said they advised local police to take extra care in documenting other signs of impairment during traffic stops, such as the odor of alcohol, stumbling or slurring.

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