State v. Keller
This text of 545 P.3d 790 (State v. Keller) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON APRIL 4, 2024 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON APRIL 4, 2024 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 101171-7 Appellant/Cross Respondent, EN BANC v. Filed: April 4, 2024 AUSTIN RIVER KELLER,
Respondent/Cross Appellant.
GORDON MCCLOUD, J.— 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. State v. Keller (Austin River), No. 101171-7
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 results 1 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.
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
1 The Dräger Alcotest 9510 takes two breath samples from the subject and performs two tests on each sample, yielding four results. 2 State v. Keller (Austin River), No. 101171-7
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.
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).
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
Before discussing the specifics of this case, we provide some necessary
background on alcohol intoxication and the breath testing instruments involved
2 56 Wn.2d 846, 852, 355 P.2d 806 (1960). 3 The state toxicologist formally amended WAC 448-16-060 in November 2022 to approve of the truncation method. Wash. St. Reg. 22-21-032 (Nov. 6, 2022). The State argues in the alternative that we should apply amended WAC 448-16-060 retroactively. Because we conclude the breath test results are admissible even under the former version of WAC 448-16-060, we need not reach the State’s alternative argument. 3 State v. Keller (Austin River), No. 101171-7
here. Alcohol causes impairment by impacting the function of the central nervous
system, particularly the brain. State v. Brayman, 110 Wn.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.
Thus, there is “a reasonable and substantial relationship between breath alcohol
and impairment.” Id. at 195. 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
Wn.2d at 188.
Instruments for testing breath alcohol levels have been used in Washington
for decades, starting with the Breathalyzer. Baker, 56 Wn.2d 846. The
Breathalyzer analyzed a breath sample using the infrared spectroscopy method. Id.
at 851-52 (describing the method).
In Baker, this court first established the foundational requirements for
admitting breath tests performed by a Breathalyzer instrument into evidence. Id. at
852. 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
4 State v. Keller (Austin River), No. 101171-7
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.
The legislature granted authority to the state toxicologist to approve methods
for maintaining Breathalyzer instruments and administering Breathalyzer tests.
State v. Peterson, 100 Wn.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.
Eventually, the DataMaster instrument replaced the Breathalyzer, and a
similar set of foundational requirements was promulgated for that machine in
chapter 44-12 WAC. City of Seattle v. Allison, 148 Wn.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 Wn.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.
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FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON APRIL 4, 2024 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON APRIL 4, 2024 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 101171-7 Appellant/Cross Respondent, EN BANC v. Filed: April 4, 2024 AUSTIN RIVER KELLER,
Respondent/Cross Appellant.
GORDON MCCLOUD, J.— 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. State v. Keller (Austin River), No. 101171-7
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 results 1 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.
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
1 The Dräger Alcotest 9510 takes two breath samples from the subject and performs two tests on each sample, yielding four results. 2 State v. Keller (Austin River), No. 101171-7
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.
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).
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
Before discussing the specifics of this case, we provide some necessary
background on alcohol intoxication and the breath testing instruments involved
2 56 Wn.2d 846, 852, 355 P.2d 806 (1960). 3 The state toxicologist formally amended WAC 448-16-060 in November 2022 to approve of the truncation method. Wash. St. Reg. 22-21-032 (Nov. 6, 2022). The State argues in the alternative that we should apply amended WAC 448-16-060 retroactively. Because we conclude the breath test results are admissible even under the former version of WAC 448-16-060, we need not reach the State’s alternative argument. 3 State v. Keller (Austin River), No. 101171-7
here. Alcohol causes impairment by impacting the function of the central nervous
system, particularly the brain. State v. Brayman, 110 Wn.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.
Thus, there is “a reasonable and substantial relationship between breath alcohol
and impairment.” Id. at 195. 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
Wn.2d at 188.
Instruments for testing breath alcohol levels have been used in Washington
for decades, starting with the Breathalyzer. Baker, 56 Wn.2d 846. The
Breathalyzer analyzed a breath sample using the infrared spectroscopy method. Id.
at 851-52 (describing the method).
In Baker, this court first established the foundational requirements for
admitting breath tests performed by a Breathalyzer instrument into evidence. Id. at
852. 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
4 State v. Keller (Austin River), No. 101171-7
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.
The legislature granted authority to the state toxicologist to approve methods
for maintaining Breathalyzer instruments and administering Breathalyzer tests.
State v. Peterson, 100 Wn.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.
Eventually, the DataMaster instrument replaced the Breathalyzer, and a
similar set of foundational requirements was promulgated for that machine in
chapter 44-12 WAC. City of Seattle v. Allison, 148 Wn.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 Wn.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. This capability meant that the DataMaster was “self-certifying.” City of
Seattle v. Ludvigsen, 162 Wn.2d 660, 678, 174 P.3d 43 (2007) (Madsen, J.,
concurring) (citing Wittenbarger, 124 Wn.2d at 483).
5 State v. Keller (Austin River), No. 101171-7
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
Wn.2d at 483. 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 Wn.2d at 483. 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 Wn.2d 827, 755
P.2d 806 (1988), and State v. Straka, 116 Wn.2d 859, 810 P.2d 888 (1991). See
Allison, 148 Wn.2d at 80.
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.
6 State v. Keller (Austin River), No. 101171-7
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 Wn.2d at 677-78 (Madsen, J.,
concurring))).
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 instrument
“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). As
mentioned above, there is an important reason for this requirement: there is a
scientific consensus that if individual breath test results derived from the breath
samples fall outside 10 percent of the mean of all contemporaneous test results,
then at least one of those breath samples came from mouth air where alcohol
7 State v. Keller (Austin River), No. 101171-7
content does not correspond to intoxication. CP at 48 (FF 5.3 (quoting
WASHINGTON STATE PATROL (WSP) BREATH TEST PROGRAM TRAINING MANUAL
(Nov. 2014) Ex. 4A))). Thus, RCW 46.61.506(4)(a)(vi)’s requirement (to calculate
the mean and then calculate whether any individual test result was a real outlier
from the mean) confirms that the samples provided to the machine were samples of
deep lung air, which is the substance actually sought to be tested.
In 2007, the WSP Breath Test Program (BTP) began the process of seeking
bids for a new breath test instrument to replace the DataMaster. CP at 40 (FF 3.3).
The state toxicologist, Dr. Fiona Couper,4 worked with the WSP BTP to create a
bid specification document. Id. (FF 3.4, 3.5). The final version of that document
shows that WSP sought an instrument capable of computing whether each
individual breath test result fell within plus or minus 10 percent of the mean of all
contemporaneous breath test results. Ex. 1. The specification document provided a
formula for that calculation; it required the mean to be truncated to 4 decimal
places before multiplying by .9 and 1.1 to obtain the plus or minus 10 percent
range. Id. at 5. The company that produces the Dräger Alcotest 9510 was the only
4 Dr. Couper was hired as state toxicologist in 2008 and served in that role at all times relevant to this case. CP at 39 (FF 2.11). She is responsible for approving “satisfactory techniques or methods” for analyzing blood and BrAC. RCW 46.61.506(3); WAC 448-16-010. 8 State v. Keller (Austin River), No. 101171-7
one that submitted a bid, and its bid complied with this truncation specification.
Ex. 2; CP at 41 (FF 3.6). Following negotiations, the bid was accepted. Ex. 2.
In 2010, Dr. Couper approved of the Dräger Alcotest 9510 as a breath test
instrument in WAC 448-16-020(1)(c). The Dräger, like the DataMaster, is a self-
certifying breath test instrument. It follows the same protocol as the DataMaster for
self-testing to ensure the accuracy of its BrAC measurements. WAC 448-16-050
(10-step protocol requiring blank tests and known-quantity sample tests to be
conducted in between tests of subject’s breath samples). In addition to conducting
an infrared test on the two breath samples, the Dräger also performs an
electrochemical cell test.5 Thus, two breath samples analyzed by the Dräger will
yield four individual breath test results.
When the state toxicologist approved the Dräger as a breath test instrument,
she also updated former WAC 448-16-060 to reflect the new instrument’s
approval. That updated regulation, however, provided the following as the
approved method for “for determining whether two breath samples agree to within
plus or minus ten percent of their mean”:
(1) The breath test results will be reported, truncated to three decimal places.
5 See 32 LINDA M. CALLAHAN, WASHINGTON PRACTICE: WASHINGTON DUI PRACTICE MANUAL § 25B:1 at 1064 (2022-2023 ed.) (describing the two test procedures).
9 State v. Keller (Austin River), No. 101171-7
(2) For the DataMaster instruments, the mean of the two breath test results will be calculated and rounded to four decimal places. For the Dräger instrument, the mean of all four results will be calculated and rounded to four decimal places. (3) The lower acceptable limit will be determined by multiplying the above mean by 0.9, and truncating to three decimal places. (4) The upper acceptable limit will be determined by multiplying the mean by 1.1 and truncating to three decimal places. (5) If the individual results fall within and inclusive of the upper and lower acceptable limits, the two breath samples are valid. Former WAC 448-16-060 (emphasis added).
As this quoted and emphasized language shows, despite the fact that the
2008 bid specification document called for a machine that truncated the mean to
four decimal places, the regulation mandates that the mean will be rounded to four
decimal places.6 The Dräger followed the specs, not the governing legal regulation:
the district court found, and the parties now agree, that the Dräger has always been
programmed to truncate the mean and has never followed the rounding formula
required by the applicable law, that is, by former WAC 448-16-060(2). CP at 57
(FF 5.34).
6 The district court found, and the parties agree, that “truncation” and “rounding” are “terms of art in the scientific community in the context of alcohol breath testing machines.” CP at 56 (FF 5.31 & n.119). Rounding to four decimal places requires adjusting the fourth decimal up or down depending on the value of the fifth decimal place. Truncating to four decimal places requires cutting off the mean at four decimal places “without regard to the value of any number” in the fifth decimal place. Id. (quoting Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 412, 10 N.E.3d 646 (2014)). 10 State v. Keller (Austin River), No. 101171-7
II. Dr. Couper’s 2015 declaration
Nevertheless, in 2015, Dr. Couper signed a declaration under penalty of
perjury stating, “All approved breath test instruments calculate whether the breath
test results are within plus or minus 10% of their mean in accord with WAC 448-
16-060. If a breath sample is outside this parameter, no breath test result is
generated.” CP at 53-54 (underlining omitted) (FF 5.20 (quoting Ex. 11)). This
declaration was admitted as an exhibit in thousands of Department of Licensing
(DOL) license suspension and revocation hearings in order to lay the foundation
for admission of breath test results. Ex. 12 (attorney declarations explaining how
Dr. Couper’s declaration was used). Dr. Couper’s assertions are obviously not true,
as the district court found. E.g., CP at 57 (FF 5.34), 66 (FF 7.17), 100 (Conclusion
of Law (CL) 4.68).
III. Austin Keller’s breath test, arrest, and charges
On the evening of May 9, 2020, Keller drove his vehicle into a ditch in
Bremerton. CP at 35 (FF 1.1). When Kitsap County Sheriff’s Deputy Tanner Justin
arrived on the scene, Keller admitted that he drove his car into the ditch. Id. (FF
1.2). According to Justin’s incident report, Keller “appeared to be okay and was
walking and talking normally with the medics.” Ex. 13 (Kitsap County Sheriff’s
Office Incident/Investigation Report). Justin asked the medics if they “sense[d] any
sort of impairment,” and they stated they did not. Id. Justin initially didn’t notice
11 State v. Keller (Austin River), No. 101171-7
any impairment either, but he smelled “the odor of intoxicants” when he got closer
to Keller. Id. At that point, Justin asked Keller to perform field sobriety tests, and
Keller consented. Id. On the first test, which measured “horizontal gaze
nystagmus,” (HGN) 7 Keller showed six out of six “clues of impairment.” Id. This
“surprised” Justin “because [Keller] was walking and talking so normally.” Id. On
the walk and turn test, in contrast, Keller showed only one out of eight clues of
impairment. Id. And on the one-leg stand test, he showed zero of four clues. Id.
Because Keller showed so few signs of impairment on the second and third test,
Justin began to think that Keller might “just have a natural nystagmus in his eyes.”
Id. Finally, Keller consented to a portable breath test that showed an alcohol result
of 0.132 g/100 mL of breath. Id. At that point, Justin arrested him and took him to
the central office in Silverdale for a BrAC test. Id.
At the central office, the deputy completed the required 15-minute
observation period before administering the breath alcohol test. CP at 36 (FF 1.4).
Keller then submitted two breath samples into a Dräger Alcotest 9510 machine. Id.
7 “Nystagmus is the involuntary oscillation of the eyeballs, which results from the body’s attempt to maintain orientation and balance. HGN is the inability of the eyes to maintain visual fixation as they turn from side to side or move from center focus to the point of maximum deviation at the side.” State v. Baity, 140 Wn.2d 1, 7 n.3, 991 P.2d 1151 (2000). HGN tests are conducted by observing the suspect’s eyeballs for movement. State v. Quaale, 182 Wn.2d 191, 198, 340 P.3d 213 (2014).
12 State v. Keller (Austin River), No. 101171-7
The Dräger produced a printout reporting results of 0.117 and 0.116 on the first
sample, and 0.117 and 0.116 on the second sample. Id.; Ex. 14. It is illegal to drive
with a blood or breath alcohol concentration of 0.08 or higher, or while “under the
influence of or affected by intoxicating liquor.” RCW 46.61.502(1)(a), (c). On
January 22, 2021, the State charged Keller with one count of DUI in violation of
RCW 46.61.502(1).8 CP at 1. Keller pleaded not guilty.
IV. WSP “potential impeachment disclosure” letter
On June 16, 2021, WSP sent a letter to the Washington Association of
Prosecuting Attorneys, copying Dr. Couper, with the subject line “Potential
Impeachment Disclosure Concerning Evidential Breath Test Results.” CP at 58 (FF
6.1); Ex. 15. The letter stated that on June 3, 2021, WSP “‘was notified that the
8 RCW 46.61.502 provides: (1) A person is guilty of driving while under the influence of intoxicating liquor, cannabis, or any drug if the person drives a vehicle within this state: (a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW 46.61.506; or (b) The person has, within two hours after driving, a THC concentration of 5.00 or higher as shown by analysis of the person’s blood made under RCW 46.61.506/ or (c) While the person is under the influence of or affected by intoxicating liquor, cannabis, or any drug; or (d) While the person is under the combined influence of or affected by intoxicating liquor, cannabis, and any drug. The State charged Keller under all four sections. CP at 1-2. 13 State v. Keller (Austin River), No. 101171-7
process used by the Dr[ä]ger Alcotest 9510 to determine agreement of duplicate
breath samples is potentially not calculated in accordance with the Washington
Administrative Code (WAC 448-16-060).’” CP at 58 (FF 6.2 (quoting Ex. 15)).
Specifically, the letter noted that while former WAC 448-16-060 states that the
mean of the four breath test results will be rounded to four decimal places,
“‘[i]nitial investigation indicates the Dr[ä]ger Alcotest performs this mean
calculation and truncates to four decimal places.’” Id. at 59 (FF 6.9 (quoting Ex.
15)). The letter also stated that after reviewing 81,000 breath tests, WSP found no
instance of a test that was accepted by the machine using a truncated mean that
would not have been accepted had the mean been rounded. Ex. 15.
On June 18, 2021, Dr. Couper signed another declaration under penalty of
perjury. This one acknowledged that the Dräger machine does not follow the
rounding method required by former WAC 448-16-060. Ex. 3 (decl. of Fiona
Couper (June 18, 2021)).
V. Keller moves to suppress BrAC test results based on WSP letter
On December 16, 2021, Keller moved to suppress his Dräger BrAC test
results. CP at 127. Citing the WSP letter, Keller argued that the Dräger instrument
did not follow the rounding method required by former WAC 448-16-060. CP at
129. Keller contended that former WAC 448-16-060 required the Dräger
instrument itself to compute whether the results fell within plus or minus 10
14 State v. Keller (Austin River), No. 101171-7
percent of their rounded mean and that “strict compliance” with that requirement
was necessary for breath test results to be admissible. CP at 127-30. Keller did not
argue that his test results were inaccurate—he argued only that the instrument did
not follow former WAC 448-16-060 when it calculated whether those results fell
within plus or minus 10 percent of their mean. CP at 130.
The State opposed. It argued that even though the Dräger truncated the mean
at the fourth decimal place rather than rounding it, that caused Keller no prejudice
because the mean of Keller’s four breath samples is still 0.1165, even without
truncation.9 CP at 148. Since the mean is only four decimal places long, there is no
nonzero fifth digit to truncate or round. In other words, Keller’s results would be
valid (would fall within plus or minus 10 percent of their mean) regardless of
whether the truncation or rounding method were followed. Id. The State therefore
concluded that the breath samples were still valid under RCW 46.61.506(3). CP at
147.
The State also argued that nothing in RCW 46.61.506(4) or former WAC
448-16-060(2) specifies “when the State must prove” the two breath samples agree
to within plus or minus 10 percent of their mean. CP at 148 (emphasis added).
Thus, the fact that “the initial mathematical determination was done differently
9 The mean is derived from adding the four breath test results together and dividing by four. Here, (0.116 + 0.116 + 0.117 + 0.117) / 4 = 0.1165. 15 State v. Keller (Austin River), No. 101171-7
than [former WAC] 448-16-060(2) mandates does not prevent the State from
redoing this math at trial in a manner compliant” with that regulation. CP at 148-
49.
VI. Dr. Couper approves of the truncation method after the fact in a signed declaration, not a regulation
On January 20, 2022, Dr. Couper signed another declaration under penalty
of perjury entitled “Instruments, Equipment and External Standards Approved for
the Quantitative Measurement of Alcohol in Person’s Breath in Washington State.”
Ex. 18. This declaration states in part:
The Dr[ä]ger Alcotest 9510 calculates whether the breath test results are within plus or minus 10% of their mean (inclusive) using the following formula – the sum of the four breath test results divided by four (4) to obtain the mean result, which is truncated to four decimal places. To calculate the acceptability range (+/- ten percent of mean), the mean is then multiplied by 0.9 and 1.1, truncated to three decimal places – this method is approved. If a breath sample is outside this parameter, no breath test result is generated.
Id.; CP at 66 (FF 7.19). This declaration makes no mention of former WAC 448-
16-060, which was still on the books and which still required rounding.
VII. Kitsap County District Court grants Keller’s motion to suppress
On March 8, 2022, the Kitsap County District Court sat en banc to consider
Keller’s motion to suppress. On June 13, 2022, the district court issued an 89-page
order granting the motion. CP at 28-116.
16 State v. Keller (Austin River), No. 101171-7
Critically, that court interpreted former WAC 448-16-060 as requiring the
Dräger instrument itself to calculate the mean of the four breath test results and to
determine whether those results fell within plus or minus 10 percent of their
rounded mean for those results to be valid and admissible. CP at 60 (FF 6.17), 79
(CL 3.40), 81 (CL 3.56), 84 (CL 3.66). This premise served as the foundation for
all of the trial court’s rulings on the suppression motion.
Based on that premise, the district court held that Dräger-generated breath
test printouts are not “valid” under RCW 46.61.506(3) and are not admissible
under RCW 46.61.506(4)(a)(vi). CP at 84 (CL 3.68, 3.69). Both of those statutes
state that the mean and the acceptable range must be calculated according to the
method approved by the state toxicologist. Dr. Couper approved the truncation
method in her 2022 declaration. CP at 66 (FF 7.19, 7.20). But she did not repeal
the WAC that required the rounding method, that is, former WAC 448-16-060. CP
at 67 (FF 7.22). The court ruled that the 2022 declaration could not override the
rounding method published in the WAC and thus the truncation method was not an
“approved method[]” under RCW 46.61.506(3). See id. Because the district court
held that the approved method required the Dräger machine to calculate the mean
according to the rounding method in former WAC 448-16-060, it concluded that
the State could not meet the statutory admissibility requirement for a valid test. CP
17 State v. Keller (Austin River), No. 101171-7
at 81 (CL 3.56), 84 (CL 3.68). That court ruled the test results were inadmissible
under Baker for the same reason. CP at 84 (CL 3.70).
The district court also rejected the State’s offer of proof to lay the foundation
for admissibility of the breath test results under RCW 46.61.506(4)(a)(vi) by
calling an expert witness at trial. The State proposed calling such an expert at trial
to do the math to calculate the mean, in accordance with former WAC 448-16-
060(2)’s rounding method, to prove that the four breath test results fell within the
required plus or minus 10 percent of that rounded mean. The district court rejected
that offer of proof; it held that the Dräger machine itself must conduct the former
WAC 448-16-060 calculation at the time of the test in order for the breath test
printout or any of the data contained in the printout to be admissible. Id.
Finally, that court ruled that even if the breath test results were admissible
under RCW 46.61.506 and Baker, they were still inadmissible under ER 702, 401,
402, and 403. CP at 32, 112 (CL 4.131). These rulings were all based on the same
premise: for the breath test result printout to be admissible, “the State’s expert
witness must offer opinion testimony that the plus or minus 10 percent of the mean
calculation was conducted by the self-certifying Dräger machine in accordance
with the method approved by the state toxicologist in [former] WAC 448-16-060
as required by RCW 46.61.506.” CP at 98 (emphasis added) (CL 4.59). Since a
witness could not truthfully testify that the machine itself conducted that former
18 State v. Keller (Austin River), No. 101171-7
WAC-448-16-060-required calculation, the witness’s testimony would necessarily
be “false and misleading” and, hence, inadmissible. CP at 99 (CL 4.60, 4.63).
In sum, the district court ruled that the breath test results were inadmissible
in Keller’s case and in all Kitsap County District Court cases because the State “is
unable to produce prima facie evidence the printout can be generated in
compliance with RCW 46.61.506(3), RCW 46.61.506(4)(a), the methods approved
by the state toxicologist pursuant to RCW 46.61.506, and State v. Baker.” CP at 84
(CL 3.70). 10 It therefore granted Keller’s motion to suppress “breath test printouts
generated by a Dräger breath test machine.” Id. (footnote omitted) (CL 3.71).
VIII. The district court rules that the practical effect of suppressing the evidence is to terminate the case
The State sought to appeal that order under RALJ 2.2. That rule allows the
State to appeal “[a] pretrial order suppressing evidence, if the trial court expressly
finds that the practical effect of the order is to terminate the case.” RALJ 2.2(c)(2).
So on July 23, 2022, the State filed a “Motion for Finding Practical Effect of
Suppression of Evidence Is To Terminate the Case and Certificate in Support
Thereof.” CP at 120. Keller opposed. The district court granted the State’s motion,
10 The district court also ruled that Keller had standing to challenge the breath test results, CP at 70 (CL 2.7), and that Keller failed to meet his burden to show that the State toxicologist’s approval of the Dräger machine was arbitrary and capricious, CP at 116 (CL 5.13). Neither party assigned error to these conclusions of law, and they are not before us now. 19 State v. Keller (Austin River), No. 101171-7
ruling that the State had insufficient evidence to proceed against Keller without the
BrAC results and that the practical effect of the suppression order was to terminate
the case. Id. at 134. The court also entered an order finding that the requirements of
RAP 4.3(a)(2), pertaining to direct review of decisions of courts of limited
jurisdiction, were met. Id. at 136-37.
IX. State seeks direct review in this court
On August 8, 2022, the State sought direct review in this court by way of a
notice of appeal. CP at 140. Keller opposed and filed a cross appeal. Notice of
Cross Appeal, State v. Keller, No. 101171-7 (Wash. Aug. 8, 2022). Finding that the
case met the requirements of RALJ 2.2 and RAP 4.3(a)(2), our commissioner
granted direct review. Ruling Granting Direct Rev. of RALJ Decision, State v.
Keller, No. 101171-7 (Wash. Aug. 25, 2022). In its opening brief, the State raised
three issues: (1) whether the district court erred in concluding that the statute and
WAC required the Dräger instrument itself to perform the WAC 448-16-060
calculation, (2) whether the district court erred in barring the State from presenting
evidence that would establish the foundational requirements for admission of the
breath test, and (3) whether the state toxicologist’s 2022 amendment of the WAC
to authorize truncation of the mean applies retroactively to Keller’s case. Keller
raised one counterissue: whether the district court erred by concluding that the
practical effect of the suppression order was to terminate the case under RALJ 2.2.
20 State v. Keller (Austin River), No. 101171-7
The DOL filed an amicus brief in support of the State. 11 Washington
Association of Criminal Defense Lawyers (WACDL) and Washington Foundation
for Criminal Justice filed a joint amici brief supporting Keller.12
11 DOL mainly argues that affirmance of the district court’s rulings would hamper DOL’s ability to conduct administrative license suspension hearings based on DUI. Unlike criminal cases where the State can prosecute a defendant for DUI without breath test results, the State cannot proceed in a license suspension hearing without breath test results. Br. of Amicus Curiae of the DOL at 7-8 (citing RCW 46.20.308(7) (requiring hearing examiner to determine whether the test results show the alcohol concentration of the person’s breath was over 0.08)). DOL attached a declaration and a sampling of DOL license suspension hearing written decisions to its brief to support its point. Id. (Attach. 4). Keller moved to strike these portions of DOL’s brief on the basis that DOL is impermissibly attempting to develop new facts on appeal by supplementing the record. We passed the motion to strike to the merits, and we now deny it. We disagree that DOL attempted to develop new facts on appeal—instead it references documents that are available to the public along with a declaration that explains what those documents are. However, we decline to consider DOL’s arguments about civil license suspension hearings because that issue is not before us in Keller’s criminal case. 12 WACDL filed a motion to allow additional appendices that it asserted were necessary to provide the full record of attachments to DOL’s brief. The first proposed appendix was the superior court decision on appeal of one of the license suspension cases DOL had attached to its amicus brief. The second proposed appendix was an unredacted amended final order in a different DOL license suspension hearing. DOL had attached the redacted version of this same order to its amicus brief. We passed the motion to the merits. Following oral argument, DOL submitted an answer to WACDL’s motion. We now grant WACDL’s motion to supplement the record with these publicly available court documents. However, as stated supra note 11, we decline to consider the issue of civil license suspension hearings because that issue is not before us in this case.
21 State v. Keller (Austin River), No. 101171-7
ANALYSIS
I. The district court did not abuse its discretion in concluding that the practical effect of the suppression order was to terminate the case
We must first consider whether the district court abused its discretion by
concluding that the practical effect of suppressing Keller’s BrAC results was to
terminate the case.
As mentioned above, RALJ 2.2(c)(2) authorizes the State to appeal a
“pretrial order suppressing evidence, if the trial court expressly finds that the
practical effect of the order is to terminate the case.” See also RAP 2.2(b)(2)
(corollary superior court rule). The district court expressly ruled that “the State
cannot move forward on this matter due to insufficient evidence [Keller] was
‘affected by’ intoxicating liquor or drugs while operating a motor vehicle, and thus
the practical effect of the order entered on June 13, 2022, suppressing the Dr[ä]ger
B[r]AC results, is to terminate the case.” CP at 134 (order). Based on that ruling,
the State sought direct review of the suppression order in this court. CP at 140.
Keller appeals the district court’s RALJ 2.2(c)(2) order. He acknowledges
that without the BrAC test results, the State can no longer proceed under the “per
se” prong of the DUI statute, RCW 46.61.502(1)(a). But Keller argues that the
State can still proceed under RCW 46.61.502(1)(c) by showing that he was “under
the influence of or affected by intoxicating liquor.” He urges us to apply a de novo
standard of review to “determine, reviewing the non-suppressed evidence in the 22 State v. Keller (Austin River), No. 101171-7
light most favorable to the State,” whether “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Br. of
Resp’t in Surreply at 7. He argues that the sheriff deputy’s prearrest observations
of Keller support a verdict of DUI beyond a reasonable doubt. Id. at 8.
The State argues that the district court’s order that the practical effect of the
suppression order was to terminate the case is not appealable, but that even if it is,
we review that order for abuse of discretion. The State concludes that the district
court committed no such abuse of discretion. 13
We have no case law directly addressing the standard by which we review
an RALJ 2.2(c)(2) order. The State argues that an analogous situation arises when
a party seeks to appeal from a final judgment that does not dispose of all the claims
or counts as to all the parties. Reply Br. of Appellant & Br. of Cross-Resp’t at 9. In
such a case, RAP 2.2(d) specifies that an appeal may be taken only “after an
express direction by the trial court for entry of judgment and an express
determination in the judgment, supported by written findings, that there is no just
reason for delay.” CR 54(b) contains nearly identical language. In such cases,
appellate courts review the trial court’s findings for abuse of discretion. Reply Br.
13 The State also argues that Keller did not move to modify the commissioner’s ruling on this issue so that ruling is final. The State overlooks the fact that Keller specifically cross appealed on this issue, that this court accepted review of the appeal and cross appeal, and that Keller explicitly assigns error to this trial court ruling. 23 State v. Keller (Austin River), No. 101171-7
of Appellant & Br. of Cross-Resp’t at 9 (citing Nelbro Packing Co. v. Baypack
Fisheries, LLC, 101 Wn. App. 517, 524-25, 6 P.3d 22 (2000)); see also Foster v.
Bellingham Urology Specialists, PLLC, No. 82349-3-I, slip op. at 13 & n.12
(Wash. Ct. App. Mar. 27, 2023) (unpublished),
https://www.courts.wa.gov/opinions/pdf/823493.pdf. The trial court does not abuse
its discretion if there is a basis in the record supporting its decision. Reply Br. of
Appellant & Br. of Cross-Resp’t at 9 (citing Fox v. Sunmaster Prods., Inc., 115
Wn.2d 498, 503, 798 P.2d 808 (1990)).
As a matter of first impression, we hold that a trial court’s RALJ 2.2(c)(2)
order is appealable and that we review such orders for abuse of discretion. To be
sure, a trial court’s “express[] find[ing] that the practical effect” of a suppression
order is to terminate a case is partly a factual decision and partly a legal decision
because it considers the proffered facts in light of the elements of the crime
charged. We review many such mixed questions of fact and law (such as the
existence of probable cause or reasonable suspicion) de novo. But not all of them.
For example, we review most evidentiary errors for abuse of discretion. E.g.,
Peralta v. State, 187 Wn.2d 888, 894, 389 P.3d 596 (2017).
To decide which standard of review best fits a RALJ 2.2(c)(2) order, we
examine (1) whether factual or legal issues predominate and (2) whether the trial
24 State v. Keller (Austin River), No. 101171-7
court judge or the reviewing court judges are better situated to evaluate the
potential impact on the fact finder of the proffered facts.
As the record in this case shows, factual matters predominate and the
experienced trial judge is in the better position to evaluate the impact that those
proffered facts might have on the fact finder. In the hearing on the State’s motion
for an RALJ 2.2(c)(2) order, each party described the evidence it expected to offer
into evidence at Keller’s trial. Verbatim Rep. of Proc. (VRP) (July 25, 2022) at 4-
11. As detailed above, this evidence showed that Keller did not appear intoxicated
and that he did so well on most of the field sobriety tests that the deputy sheriff
thought he might have a natural nystagmus in his eyes. The only evidence of
intoxication was that Keller got into a car accident, that he “admitted to drinking”
at his girlfriend’s birthday party “but didn’t think he was doing anything wrong
when driving,” that his eyes showed signs of nystagmus (which can be a natural
state and is not exclusively associated with intoxication), and that he showed one
“clue[] of impairment” on the walk and turn field sobriety test and none on the
other test. CP at 4-5. The roadside breath test would not have been admissible at
trial. State v. Smith, 130 Wn.2d 215, 225, 922 P.2d 811 (1996). The judge
thoroughly considered these proffers and the parties’ arguments about the strengths
and weaknesses of that proffered evidence in light of “all the driving under the
influence investigations [he had] seen,” and concluded that given “how little
25 State v. Keller (Austin River), No. 101171-7
evidence of impairment there was in this case” apart from the BrAC results, he
would “likely grant a motion to dismiss” if the defense made such a motion at the
close of evidence. VRP (July 25, 2022) at 12-13.
Those are the kinds of experience-based observations that a trial judge is in
the best position to make. The district court did not abuse its discretion in granting
the State’s motion for an RALJ 2.2(c)(2) order. The State’s appeal is properly
before this court.
II. The district court erred in concluding that the Dräger breath test results were invalid and inadmissible under RCW 46.61.506 and Baker
The district court ruled that the breath test results were invalid under RCW
46.61.506(3) and inadmissible under RCW 46.61.506(4)(a)(vi) because the Dräger
machine did not comply with the state-toxicologist-approved methods for analysis
of breath alcohol. The district court based this ruling on its conclusion that the
applicable statutes and regulations require the Dräger machine itself to compute, at
the time of the test, whether the breath test results fall within plus or minus 10
percent of their mean following the formula in former WAC 448-16-060—and the
Dräger machine was simply not programmed to do that. All of the district court’s
evidentiary rulings rely on this premise.
But, as the State contends, the applicable statutes and regulations do not
require the Dräger machine to perform that calculation itself at the time of the test.
26 State v. Keller (Austin River), No. 101171-7
In fact, the district court here did not really find that supposed requirement
in any statute or regulation. Instead, the district court found that supposed
requirement in certain other documents. We disagree with the district court’s
conclusion that those other documents require the Dräger machine itself to
compute the math at issue here at the time it takes the breath samples.
We begin with the plain language of the relevant statutes and regulations and
then turn to the trial court’s and defendant’s remaining arguments.
A. The plain language of the relevant statutes and regulations does not require the Dräger instrument to perform the calculation itself at the time of the test
We review the district court’s findings of fact for substantial evidence. In re
Est. of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004). We review its conclusions of
law and statutory interpretation de novo. Id.
This case involves interpretation of both statutes and administrative
regulations. The same rules of statutory construction “‘“apply to administrative
rules and regulations, particularly where . . . they are adopted pursuant to express
legislative authority.”’” Cannon v. Dep’t of Licensing, 147 Wn.2d 41, 56, 50 P.3d
627 (2002) (alteration in original) (quoting City of Kent v. Beigh, 145 Wn.2d 33,
45, 32 P.3d 258 (2001) (quoting State v. Burke, 92 Wn.2d 474, 478, 598 P.2d 395
(1979))). In statutory interpretation, our “fundamental objective is to ascertain and
carry out the Legislature’s intent, and if the statute’s meaning is plain on its face,
27 State v. Keller (Austin River), No. 101171-7
then the court must give effect to that plain meaning as an expression of legislative
intent.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d
4 (2002) (citing State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001)). We
determine plain meaning by “considering the text of the provision in question, the
context of the statute in which the provision is found, related provisions,
amendments to the provision, and the statutory scheme as a whole.” Ass’n of Wash.
Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 350,
340 P.3d 849 (2015) (citing Campbell & Gwinn, 146 Wn.2d at 9-10).
We begin with the statute. As discussed, in 2004 the legislature codified the
foundational requirements for admissibility of blood and breath tests in RCW
46.61.506. Relevant here, RCW 46.61.506(3) states that “[a]nalysis of the person’s
blood or breath to be considered valid under the provisions of this section . . . shall
have been performed according to methods approved by the state toxicologist.”
This does not require the Dräger machine itself to do the math at the time it takes
the breath samples.
Next, RCW 46.61.506(4) lists eight foundational requirements required to
admit a breath test. Relevant here, the statute provides:
(4)(a) A breath test performed by any instrument approved by the state toxicologist shall be admissible at trial or in an administrative proceeding if the prosecution or department produces prima facie evidence of the following: ....
28 State v. Keller (Austin River), No. 101171-7
(vi) The two breath samples agree to within plus or minus ten percent of their mean to be determined by the method approved by the state toxicologist.
These quotes show that these two statutes require breath tests to comply with
state-toxicologist-approved methods to be admissible. These quotes also show that
these two statutes do not require the Dräger machine itself do the math at the time
it takes the breath samples.
Next, we turn to the regulations. WAC 448-16-050 provides a definition of a
breath test and a 10-step protocol that the breath test instrument must follow. It
states:
A test of a person’s breath for alcohol concentration will consist of the person exhaling end-expiratory air samples at least twice into the instrument, sufficient to allow two separate measurements. There will be sufficient time between the provision of each sample to permit the instrument to measure each sample individually. Two valid breath samples,[14] provided consecutively, will constitute one test. The instrument will perform this test according to the following protocol when being employed to quantitatively measure an individual’s breath alcohol concentration. Successful compliance with each step of this protocol is determined from an inspection of the printout of results. These steps are necessary to ensure accuracy, precision, and confidence in each test. Step 1. Data entry. Step 2. Blank test with a result of .000. Step 3. Internal standard verified. Step 4. First breath sample provided by subject.
WAC 448-16-030(12) defines “valid breath sample” as “a sample of a person’s 14
breath provided in such a manner to be accepted for analysis by the instrument.” 29 State v. Keller (Austin River), No. 101171-7
Step 5. Blank test with a result of .000. Step 6. External standard test. The result of this test must be between .072 and .088, inclusive. Step 7. Blank test with a result of .000. Step 8. Second breath sample provided by subject. Step 9. Blank test with a result of .000. Step 10. Printout of results. WAC 448-16-050.
This protocol requires the instrument to conduct an external standard test
with specific required results. In this way, the instrument is able to self-test the
accuracy of its measurements. 15
Notably, there is no mention of the plus or minus 10 percent of the mean
calculation in this self-testing protocol, which is “necessary to ensure accuracy,
precision, and confidence in each test.” Id. In other words, this WAC does not
require the Dräger machine itself to do the math at the time it takes the breath
samples.
The state-toxicologist-approved method “for determining whether two
breath samples agree to within plus or minus 10 percent of their mean” is
15 “External standard test” means “the process by which the accuracy of the instrument is verified, using a simulator containing a certified simulator solution or a compressed gas standard containing a known alcohol concentration.” WAC 448-16- 030(8). “Accuracy” means “the proximity of a measured value to a reference value.” WAC 448-16-030(1). Thus, performing the external standard test is the method by which the Dräger self-tests for accuracy. See Wittenbarger, 124 Wn.2d at 483. 30 State v. Keller (Austin River), No. 101171-7
contained in a separate regulation, WAC 448-16-060. Former WAC 448-16-060—
which was in effect at the time of Keller’s arrest—provided:
Pursuant to RCW 46.61.506 the following method is approved for determining whether two breath samples agree to within plus or minus 10 percent of their mean. (1) The breath test results will be reported, truncated to three decimal places. (2) For the DataMaster instruments, the mean of the two breath test results will be calculated and rounded to four decimal places. For the Drager instrument, the mean of all four results will be calculated and rounded to four decimal places. (3) The lower acceptable limit will be determined by multiplying the above mean by 0.9, and truncating to three decimal places. (4) The upper acceptable limit will be determined by multiplying the mean by 1.1 and truncating to three decimal places. (5) If the individual results fall within and inclusive of the upper and lower acceptable limits, the two breath samples are valid. (Emphasis added.)
This rule is written in passive voice. That means that it provides a formula
for calculating the mean and determining the acceptable range, but it does not
specify that the Dräger machine itself must do the math at the time it takes the
breath samples.
The rule is also written in future tense—it states that the mean “will be”
calculated, but it does not specify at what point in time that calculation must occur.
And, comparing the language of this regulation to that of WAC 448-16-050, it is
clear that the drafters of the regulations knew how to specify when the instrument
31 State v. Keller (Austin River), No. 101171-7
is required to do something: WAC 448-15-050 states, “The instrument will
perform this test…” but former WAC 448-16-060 does not.
Thus, the State is correct—the plain language of the relevant statutes and
regulations does not require the Dräger machine to perform the “round[ing],”
mean, or distance-from-the-mean calculations that former WAC 448-16-060
mandates.
B. No other source of law requires the Dräger instrument to perform the calculation at the time of the test
As discussed above, the district court came to a different conclusion: it
determined that there is a requirement that the Dräger instrument conduct the
former WAC 448-16-060 calculation at the time of the test and that such a
requirement is part of the “methods approved by the state toxicologist” without
which a test is invalid and inadmissible. See, e.g., CP at 77 (CL 3.33 (describing
Dräger machine’s compliance with former WAC 448-16-060 method as a “state
toxicologist approved method[]”)), 57 (FF 5.39 (describing requirement that the
Dräger software must display a “Samples Outside 10%” message and abort the test
when in noncompliance with former WAC 448-16-060 as a “state toxicologist
approved method”)). Nearly all of the district court’s rulings depend on this
conclusion.
32 State v. Keller (Austin River), No. 101171-7
But as also discussed above, no statute or regulation requires the Dräger
machine itself to perform those calculations. The district court cited certain other
documents as a source of that requirement. Those documents are the 2008
Evidentiary Breath Test Instrumentation Specifications (Ex. 1), the DOL Fiona
Couper declaration of May 2015 (Ex. 11), two versions of the WSP Breath Test
Program Technical Manual from November 2018 (Ex. 4A) and March 2020 (Ex.
5), and the Fiona Couper declaration from January 2022 (Ex.18).
To be sure, our case law does hold that the state toxicologist can establish an
“approved method” under RCW 46.61.506(3) without codifying it in a WAC.
Straka, 116 Wn.2d at 876 (citing former RCW 46.61.506(3) (1987)). 16
But our case law also places a strict limit on that informal manner of
establishing an “approved method”: an unpublished method or protocol is not
effective if it contradicts a published regulation to the contrary. Id. at 870. In
Straka, for example, we held that written protocols that the state toxicologist’s
office followed in order to mix the simulator solution and certify DataMaster
machines were “approved methods” under RCW 46.61.506 even though they were
not published in the WAC. Id. Those written protocols did not conflict with the
statute or regulations and were available to defendants through discovery. Id.
16 The version of RCW 46.61.506(3) discussed in Straka is identical in relevant respects to the version in place today. 33 State v. Keller (Austin River), No. 101171-7
Here, however, the documents the district court cited as establishing
additional “approved methods” beyond the text of the WAC conflict directly with
the published WAC—they contradict that WAC. In addition, the mixture of
contradictory and false statements in these documents in this case are nothing like
the Straka protocols we considered to be “approved methods.” Critically, even if
the WSP manuals or Dr. Couper’s 2022 declaration represents an “approval” of the
truncation method, the truncation method conflicts directly with the rounding
method. Under Straka, a protocol or method not published in the WAC cannot
supersede a published regulation. Id.
The remaining documents on which the district court relied do not amount to
“approvals” of anything at all. The bid specifications are a “wish list” of qualities
that WSP and Dr. Couper wanted “in a perfect instrument”—not a description of
what the Dräger machine did. Ex. 2 (interview with Dr. Couper). And Dr. Couper’s
2015 declaration is a false statement about how the machine worked that was
created for use in litigation—DOL hearings—not as an internal protocol. Taken
together, these documents do not indicate that the state toxicologist has “approved
methods” related to the plus or minus 10 percent calculation apart from the WAC.
We therefore conclude that the district court record lacks substantial evidence
that the state toxicologist effectively approved any relevant method that differed
34 State v. Keller (Austin River), No. 101171-7
from the plain language of the WAC. And as discussed in Section A above, that
WAC did not require the Dräger machine itself to do the math at issue here.
C. Keller’s breath test results are “valid” under RCW 46.61.506(3)
As we have explained, the district court reasoned that WAC 448-15-050
requires the Dräger to compute the plus or minus 10 percent calculation required
by former WAC 448-16-060 itself, prior to printing out the breath test results. E.g.,
CP at 75 (CL 3.24), 98 (CL 4.56). This reasoning also led that court to conclude
that Keller’s printout was invalid under RCW 46.61.506(3). CP at 76 (CL 3.29).
We disagree. RCW 46.61.506(3) requires that “[a]nalysis” of breath must be
performed according to toxicologist-approved methods. “Importantly, the ‘relevant
procedures’ for determining whether a breath test was performed ‘“‘according to
methods approved by the state toxicologist’”’ are those pertaining to the actual
administration of the test.” Ludvigsen, 162 Wn.2d at 678-79 (Madsen, J.,
concurring) (quoting Allison, 148 Wn.2d at 80 (quoting Ford, 110 Wn.2d at 833
(quoting RCW 46.61.506(3)))). Read in context, WAC 448-16-050 addresses the
process of administering the breath test. See Initial Br. of Appellant at 17. WAC
448-16-050 says that a breath test is “valid” as long as the machine collected a
“valid breath sample” as defined in former WAC 448-16-030(12) and as long as
the machine followed the 10-step protocol in WAC 448-16-050 at the time of the
test.
35 State v. Keller (Austin River), No. 101171-7
Here, there is no evidence that Keller’s breath samples were not valid under
WAC 448-16-030(12), and no evidence that the machine did not follow the 10-step
protocol in WAC 448-16-050. It necessarily follows that Keller’s breath test was
“valid” under RCW 46.61.506(3). Initial Br. of Appellant at 17-18; see supra note
13.
In fact, as the quoted portion of WAC 448-16-050 shows, that regulation
contains the definition of a breath test and the 10-step self-certification protocol,
but it does not contain any reference to former WAC 448-16-060 (concerning
rounding, calculating the mean, and calculating distance from the mean). The
district court’s interpretation of the regulations impermissibly reads in
requirements that do not appear in the text.17 Rest. Dev., Inc. v. Cananwill, Inc.,
150 Wn.2d 674, 682, 80 P.3d 598 (2003) (“[A] court must not add words where the
legislature has chosen not to include them.”).
D. Keller’s breath test results meet the Baker requirements
Similarly, there is no evidence that the Dräger instrument in this case was
not “in proper working order at the time of conducting the test” under Baker, 56
17 At times the district court also appeared to read into the language of former WAC 448-16-060 itself a requirement that the Dräger round the mean. See CP at 98 (CL 4.56 (“WAC 448-16-060 requires the Dräger to round the mean of Keller’s breath test results before conducting the plus or minus 10 percent calculations.”)). But at other points, the district court relies on outside sources to find the requirement that the machine must perform the calculation. E.g., CP at 77 (CL 3.33). 36 State v. Keller (Austin River), No. 101171-7
Wn.2d at 852. Since the regulations do not require the Dräger to compute the
calculation in former WAC 448-16-060, the instrument’s failure to do so cannot
mean that the machine was not in proper working order.
In addition, our case law establishes that the instrument’s compliance with
the applicable control testing protocol is what ensures the instrument was in proper
working order. In Wittenbarger, we explained that while regulations specific to
Breathalyzer instruments required “periodic evaluation and certification of the
Breathalyzer machines,” the regulations specific to the DataMaster “did not require
a similar certification process for the DataMaster machines, presumably because
DataMaster machines possess the ability to perform and record the results of a
control test each time a breath test is administered.” 124 Wn.2d at 490. Because the
DataMaster “performs a control test . . . each time a breath test is administered”
and prints the results on the breath test ticket, that ticket “is a crucial document in
determining whether the DataMaster was operating properly during a particular
test.” Id. at 483. Just as in Wittenbarger, the instrument in Keller’s case followed
the applicable protocol (currently contained in WAC 448-16-050) and produced a
printout showing compliance. Keller’s breath test results meet the Baker
requirements.
37 State v. Keller (Austin River), No. 101171-7
E. If the State can lay the foundation for admission of the breath tests—with admissible evidence showing that the results fall within plus or minus 10 percent of their rounded mean as required by former WAC 448-16-060—then the breath test results are admissible under RCW 46.61.506(4)(a)(vi)
Since there is no textual requirement that the Dräger perform the
computation required by former WAC 448-16-060, the State argues it can establish
the foundational requirements of RCW 46.61.506(4)(a)(vi) at trial. The State
asserts that it would call an expert witness, ask that witness to calculate the mean
of Keller’s four breath test results following the rounding method in former WAC
448-16-060, and show that the breath test results fall within plus or minus 10
percent of their mean. Initial Br. of Appellant at 24.
We agree. Nothing in the statute or regulations limits the kind of evidence
the State can use to comply with RCW 46.61.506(4)(a)(vi)’s requirement that the
breath test results fall within plus or minus 10 percent of their mean as determined
by the method approved by the state toxicologist. Id. at 24-25. In fact, of that
statute’s other seven admissibility requirements, several can be established only by
live testimony, so “there can be no inference that the Dräger must independently
provide the basis for each” of these requirements. Id. at 24-25, 29; see also CP at
95 (CL 4.42). For example, no one contests that the State can present evidence
that it has complied with the statutory requirements that the defendant did not eat,
drink, smoke, or vomit within 15 minutes of giving the breath samples (RCW
38 State v. Keller (Austin River), No. 101171-7
46.61.506(4)(a)(ii)) and had nothing in their mouth (RCW 46.61.506(4)(a)(iii))
during that time by calling the test administrator to testify about those facts. See CP
at 95 (CL 4.42 n. 265).
F. The cases on which Keller relies are inapposite because there is no textual requirement that the Dräger compute the WAC 448-16-060 calculation at the time of the test
Keller argues that this court has always required “strict compliance” with
breath alcohol test admissibility requirements and that we have always deemed
breath test results inadmissible if they do not strictly comply with such
admissibility requirements. Br. of Resp’t at 41 (collecting cases).
But Keller’s argument for strict compliance with the regulations is based on
his assumption that the regulations actually require the Dräger instrument to
perform the rounding, mean, and distance from the mean calculations at the time of
the test in the first place. As discussed above, the regulations do not require that.
Further, the State emphasizes an important distinction between the “strict
compliance” cases cited by Keller and the issue in this case. Those cases all
involved violations of admissibility requirements that, by their nature, had to be
performed at the time of the test. E.g., Baker, 56 Wn.2d at 856-57 (breath test was
inadmissible because the administrator failed to observe the defendant for the
required 15 minutes prior to administering breath test); City of Seattle v. Clark-
Munoz, 152 Wn.2d 39, 48, 93 P.3d 141 (2004) (breath test inadmissible because
39 State v. Keller (Austin River), No. 101171-7
thermometer on breath machine was not properly certified at the time of the test as
required by former WAC 448-13-035 (1991), repealed by Wash. St. Reg. 04-19-
144 (Oct. 23, 2004)); State v. Ryan, 43 Wn. App. 488, 717 P.2d 1390 (1986)
(breath test inadmissible because State could not show that machine’s ampoule
maintenance requirements were met at time of test); State v. Watson, 51 Wn. App.
947, 756 P.2d 177 (1988) (breath test inadmissible because State could not show
that machine had been calibrated at time of test). In these cases, “there was no way
for the State to go back in time and recreate the test in a way to comply with the
WAC.” CP at 484 (Suppl. Mem. of Auths. Opposing Suppression of Breath
Results).
By contrast, as discussed, there is no textual requirement that the Dräger
compute the former WAC 448-16-060 calculation at the time of the test. In
addition, there is no logical reason why the machine would have to compute that
number at the time of the test. Indeed, the district court recognized that this
calculation used to be done manually after the test. CP at 48 (FF 5.4). Math can be
performed—and produce the same results—later. If the undisputedly accurate
breath test results fall within plus or minus 10 percent of their rounded mean
according to the formula in former WAC 448-16-060, “they will always fall within
that range regardless of by whom or when that calculation is done.” Initial Br. of
Appellant at 21.
40 State v. Keller (Austin River), No. 101171-7
We therefore hold that the district court erred in barring the State from
introducing testimony to establish the validity and admissibility of the breath test
under RCW 46.61.506 in Keller’s case. Because the district court’s conclusion that
the breath test results were inadmissible under Baker was based on the same
erroneous conclusion, we reverse that ruling as well. Finally, we reverse the district
court’s ruling that Dräger breath test printouts are “not admissible in Kitsap
County District Court cases” for the same reasons. CP at 84 (CL 3.70).
III. The district court erred in ruling that the breath test results were inadmissible under ERs 702, 401, 402, and 403
The district court ruled that even if the results were admissible under RCW
46.61.506, it would still exclude them under ER 702, 401, 402, and 403. CP at 32,
112 (CL 4.131). Thus, we must address whether the district court abused its
discretion in excluding them under these evidence rules. An abuse of discretion
occurs “when the trial court ‘relies on unsupported facts, takes a view that no
reasonable person would take, applies the wrong legal standard, or bases its ruling
on an erroneous view of the law.”’ State v. Arndt, 194 Wn.2d 784, 799, 453 P.3d
696 (2019) (quoting State v. Lord, 161 Wn.2d 276, 284, 165 P.3d 1251 (2007)).
Once again, the district court’s evidentiary rulings all rely on the premise
that a breath test result is valid under RCW 46.61.506(3) only if the Dräger
instrument performed the former WAC 448-16-060 calculation at the time of the
test. As explained above, the statute and regulations impose no such requirement. 41 State v. Keller (Austin River), No. 101171-7
Neither does any other document that the district court cited. Thus, we hold the
district court abused its discretion in excluding breath test results under ER 702,
401, 402 and 403 because it relied on an erroneous view of RCW 46.61.506 and
former WAC 448-16-050 and -060.
CONCLUSION
We affirm the district court’s ruling that the practical effect of suppressing
Keller’s BrAC results was to terminate the case.
No source of law requires the Dräger instrument itself to perform the
calculation required by former WAC 448-16-060. We therefore reverse the district
court’s ruling that Keller’s BrAC results are invalid under RCW 46.61.506(3) and
inadmissible under RCW 46.61.506(4)(a)(vi) and Baker. We also reverse the
district court’s ruling barring the State from presenting evidence at trial to establish
the foundational requirements for admission of the BrAC results under RCW
46.61.506(3) and (4). For the same reasons, we reverse the district court’s rulings
that the State’s proffered evidence was inadmissible under ER 401, 402, 403 and
702 and that Dräger breath test printouts are categorically inadmissible in Kitsap
County District Court.
We remand to the district court for proceedings consistent with this opinion.
42 State v. Keller (Austin River), No. 101171-7
WE CONCUR:
43 State v. Keller, No. 101171-7 Whitener, J., dissenting
No. 101171-7
WHITENER, J. (dissenting) — Located in practically every police precinct in
Washington is an evidentiary breath test machine. It is the foundation of modern
driving under the influence (DUI) of alcohol prosecutions. Today’s precincts employ
the Dräger Alcotest 9510. In a list that includes the Breathalyzer and the DataMaster,
the Alcotest 9510 is the most technically sophisticated breath test machine
Washington has ever employed. A machine, the Alcotest 9510, appears as a neutral,
reliable, accurate arbiter of truth. This machine’s appearance and increasing
technological sophistication can seduce juries, judges, and legislators into a trusting
lull when it comes to its test results. Along with proof of driving, the results from an
Alcotest 9510’s breath analysis can result in a conviction. RCW 46.61.502(1)(a).
Mandatory imprisonment; loss of employment; thousands of dollars in fines, fees,
monitoring devices, and court ordered programming; loss of one’s ability to drive
for years; deportation; and inadmissibility to other countries are among the many
consequences of a DUI conviction. 1 These consequences weigh heavily, therefore,
1 RCW 46.61.5055; 32 LINDA M. CALLAHAN, WASHINGTON PRACTICE: WASHINGTON DUI PRACTICE MANUAL: § 1:15-18 (2023-2024 ed.). 1 State v. Keller, No. 101171-7 Whitener, J., dissenting
it is of the utmost importance that there is confidence in the reliability and accuracy
of technology the State uses to produce evidence in DUI criminal prosecutions.
The legislature tasked the state toxicologist, the State’s expert in this area,
with choosing a breath test machine and regulating its operation. One of the
regulations created by the state toxicologist required the Alcotest 9510 to perform a
certain calculation at the time of the breath analysis, and, depending on the results,
the Alcotest 9510 would either proceed with the analysis or abort it before it could
print out the ultimate results. On May 9, 2020, Austin Keller was the subject of a
breath analysis performed by an Alcotest 9510. The Alcotest 9510 analyzing
Keller’s breath did not perform that calculation as required by regulation. Despite
the state toxicologist testifying by declaration, under the penalty of perjury, that the
Alcotest 9510 complied with that regulation in practically every Department of
Licensing (DOL) administrative hearing in Washington that involved the Alcotest
9510, it seems as though no Alcotest 9510 in Washington performed a breath
analysis in accordance with that regulation.
When the Alcotest 9510 and those tasked with maintaining and operating it
do not follow proper standards and procedures, the Alcotest 9510 can produce
unreliable and inaccurate results, which in turn produce wrongful convictions. This
case was brought before this court prematurely, and the state toxicologist failed in
2 State v. Keller, No. 101171-7 Whitener, J., dissenting
following their prescribed standards and procedures for the Alcotest 9510. These
standards and procedures are central to the reliability and accuracy of the Alcotest
9510’s results. I respectfully dissent.
I. Suppression of the Alcotest 9510’s Breath Analysis
The Alcotest 9510 is designed to give a “proper test” or “none at all” by
detecting numerous potential issues affecting validity and aborting the breath
analysis if the software detects a potential issue. Ex. 4A (WASHINGTON STATE
PATROL (WSP) BREATH TEST PROGRAM TRAINING MANUAL (Nov. 2014). The
Alcotest 9510 uses dual sensors to estimate the amount of alcohol in one’s breath.
One sensor uses infrared spectography (IR) and the other uses electric chemical fuel
cell oxidation (EC). When the Alcotest 9510 does a breath analysis, it takes two
samples and runs an IR and an EC test on each sample, creating four test results in
total. One of the ways the Alcotest 9510 detects a potential issue affecting its validity
is by calculating the mean of all four results, rounding that mean to four decimal
places, and seeing whether the breath samples individually agree with the calculated
mean within plus or minus 10 percent. Former WAC 448-16-060(2) (2010); RCW
46.61.506(4)(a)(vi). If the samples are within plus or minus 10 percent of the mean,
and there are no other issues with the breath analysis, then the Alcotest 9510 will
3 State v. Keller, No. 101171-7 Whitener, J., dissenting
complete the analysis and generate a printout of the ultimate results. If a sample is
outside plus or minus 10 percent of the mean, there was likely an issue with the
breath samples or the Alcotest 9510, and the Alcotest 9510 will display a
“SAMPLES OUTSIDE 10%” message and abort the analysis without printing out a
receipt. Ex. 4A.
The Alcotest 9510 should have been doing the specific mean calculation and
comparison, as required by RCW 46.61.506(4)(a)(vi), RCW 46.61.506(3), and
former WAC 448-16-060(2). However, we now know from a letter written by the
Washington State Patrol and a declaration from the State Toxicologist, that the
Alcotest 9510 does not round the mean to four decimal places, it truncates. CP at
133, 185. Truncating the mean could lead the Alcotest 9510 to erroneously print out
results, where none should have been printed, violating RCW 46.61.506(4)(a)(vi),
RCW 46.61.506(3), and former WAC 448-16-060(2).
The admissibility of the Alcotest 9510’s printout of the ultimate results
depends on the prosecution satisfying a two-step analysis under RCW 46.61.506.
The first step requires a showing that the breath analysis is “valid,” as the analysis
was “performed according to methods approved by the state toxicologist.” RCW
46.61.506(3). If the analysis is “valid,” then the second step requires a prima facie
showing of eight foundational requirements in RCW 46.61.506(4)(a), with the mean
4 State v. Keller, No. 101171-7 Whitener, J., dissenting
calculation rounded to four decimals being the sixth foundational requirement. RCW
46.61.506(4)(a); former WAC 448-16-060(2). Only when both steps are satisfied are
the breath analysis results admissible.
The majority holds that RCW 46.61.506(3), RCW 46.506(4)(a)(vi), and
former WAC 448-16-060(2) do not require the Alcotest 9510 to do the mean
calculation of the four results, rounded to four decimal places, at the time of the
analysis. The majority believes this calculation can be done at trial by an expert
witness. Majority at 37-38. Depending on the provision, the interpretation the
majority adopts is either not supported by the plain reading or not supported by the
legislative history, or it simply produces absurd and unintended results this court is
tasked to avoid.
A. RCW 46.61.506(3) – Validity
To establish the first step, validity of the breath analysis, the State must
establish that
[a]nalysis of the person’s blood or breath to be considered valid under the provisions of this section … shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. RCW 46.61.506(3) (emphasis added); State v. Wittenbarger, 124 Wn.2d 467, 487,
880 P.2d 517 (1994) (“[P]ursuant to RCW 46.61.506(3), the Toxicologist has
5 State v. Keller, No. 101171-7 Whitener, J., dissenting
approved regulations and protocols which must be followed in order for a breath test
to be considered valid.”).
The majority’s interpretation ignores the plain reading of this provision. If the
statute’s meaning is plain on its face, then the court must give effect to that plain
meaning as an expression of legislative intent. Dep’t of Ecology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). The analysis of the person’s breath
is “performed” by the breath test instrument, in this case the Alcotest 9510, and its
operator, often a specifically credentialed law enforcement officer at the precinct,
not the State’s expert witness at trial. “[P]erformed” in RCW 46.61.506(3) is the past
tense of “performance,” signifying that the performance of methods approved by the
state toxicologist occurred in the past, when the analysis of the breath occurred, not
at trial. One of the “methods approved” by the state toxicologist is “the mean of all
four results will be calculated and rounded to four decimal places.” Former WAC
448-16-060(2). Here, the breath test was not performed according to methods
approved by the state toxicologist—specifically, the method of mean calculation and
comparison approved by the state toxicologist. The breath analysis the Alcotest 9510
performed was not “valid” under RCW 46.61.506(3) and former WAC 448-16-
060(2). The State cannot satisfy step one of the two-step analysis for its results’
admissibility. Accordingly, the trial court was correct in its suppression as the results
6 State v. Keller, No. 101171-7 Whitener, J., dissenting
of Keller’s breath analysis by the Alcotest 9510 were not valid under RCW
46.61.504(3).
The majority writes that the breath analysis is “valid” as long as it followed
the 10-step protocol in WAC 448-16-050. Majority at 35. Although the steps in
WAC 448-16-050 are necessary for validity, nothing in WAC 448-16-050 or WAC
448-16-030(12), which defines “valid breath sample,” makes the 10-step protocol
an exhaustive list and a sufficient condition for validity. We must not add words
where the legislature has chosen not to include them. Lake v. Woodcreek
Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). RCW 46.61.506(3)
requires the analysis to be performed according to the methods approved by the State
Toxicologist, not just some of them. At the time of Keller’s breath analysis, former
WAC 448-16-060(2) was an approved method required in breath analysis by the
state toxicologist. Wittenbarger, 124 Wn.2d at 487. (“[P]ursuant to RCW
46.61.506(3), the Toxicologist has approved regulations and protocols which must
be followed in order for a breath test to be considered valid.” (emphasis added)).
B. RCW 46.61.506(4)(a)(vi) - Foundations of Admissibility
Within RCW 46.61.506(4)(a) is the second step, the eight foundational
requirements necessary for the State to establish the admissibility of the results of a
breath analysis. The relevant foundational requirement for Keller is
7 State v. Keller, No. 101171-7 Whitener, J., dissenting
[a] breath test performed by any instrument approved by the state toxicologist shall be admissible at trial or in an administrative proceeding if the prosecution or department produces prima facie evidence of the following: …. …. [t]he two 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 majority interprets this provision as not requiring the Alcotest 9510 to do
the calculation or requiring the calculation to be done at the time it performs the
analysis. Majority at 28. Their interpretation of RCW 46.61.506(4)(a)(vi) is
problematic for three reasons.
First, the statute is ambiguous and the legislative history establishes that the
calculation is to be done proximate to the test. Assuming the majority’s
interpretation is reasonable, then there is more than one reasonable interpretation of
RCW 46.61.506(4)(a)(vi). This provision exists under RCW 46.61.506(4)(a), which
concerns the performance of the breath analysis by an instrument, in this case the
Alcotest 9510; and because of where this provision resides, it can reasonably be read
to require the calculation be done proximate to the breath analysis. If the statutory
language is susceptible to more than one reasonable interpretation, it is ambiguous
and we may resort to extrinsic aids, such as legislative history, to resolve the
ambiguity. Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770, 785-86, 357 P.3d
8 State v. Keller, No. 101171-7 Whitener, J., dissenting
1040 (2015). The legislative history is illuminating. The legislature amended RCW
46.61.506 in 2004 to include the eight foundational requirements for admissibility.
LAWS OF 2004, ch. 68, § 4. When it came to the mean calculation provision, the bill
reports from both the House and Senate wrote “two samples agreed to within a
specified limit,” implying with the use of the past tense “agreed,” that the calculation
was to be done at the time of the analysis, not in the future at trial. H.B. REP. ON H.B.
3055, at 3, 58th Leg., Reg. Sess. (Wash. 2004); S.B. REP. ON S.H.B. 3055, at 2, 58th
Leg., Reg. Sess. (Wash. 2004). The legislature intended the mean calculation to be
done proximate to the breath analysis and according to the methods prescribed by
the state toxicologist.
Second, the majority’s interpretation creates an unintended and absurd result.
A reading that results in absurd results must be avoided because it will not be
presumed that the legislature intended absurd results. Gronquist v. Dep’t of Corr.,
196 Wn.2d 564, 571, 475 P.3d 497, 501 (2020). We need not leave our common
sense at the doorstep when we interpret a statute. Allison v. Hous. Auth., 118 Wn.2d
79, 86, 821 P.2d 34 (1991). The eight foundational requirements under RCW
46.61.506(4) are required to be done proximate to the breath analysis, otherwise it
creates an absurd result, rendering the foundational requirements meaningless. Only
some of the foundational requirements have the unusual specificity of temporal
9 State v. Keller, No. 101171-7 Whitener, J., dissenting
proximity to the breath analysis that is seemingly necessary for the majority. For
example, there is RCW 46.61.506(4)(a)(ii) (“…at least fifteen minutes prior to
administration of the test”), RCW 46.61.506(4)(a)(iii) (“…at the beginning of the
fifteen-minute observation period”), and RCW 46.61.506(4)(a)(iv) (“[p]rior to the
start of the test”). However, if we apply the majority’s reasoning to the foundational
requirements that do not have the unusual specificity of temporal proximity to the
breath analysis, it renders the foundational requirement useless in establishing the
reliability and accuracy of the breath analysis. Consider RCW 46.61.506(4)(a)(viii)
(“All blank tests gave results of .000.”) or RCW 46.61.506(4)(a)(v) (“The internal
standard test resulted in the message ‘verified.’”). With the majority’s reading, the
State need not establish that the Alcotest 9510 read a blank sample as 0.000 at the
time of the subject’s breath analysis. Not performing the blank sample test at the
time of the breath analysis would render this foundational requirement completely
meaningless, as performing the blank sample test several months to a year later at
trial is not probative of whether the Alcotest 9510 could read a blank sample
correctly at the time of the breath analysis. If the Alcotest 9510 cannot correctly read
a blank sample as 0.000 at the time of the analysis, then the analysis of the suspect’s
breath sample will not be reliable or accurate. The same can be said if the Alcotest
does not compare its breath test results to their mean rounded to the fourth decimal,
as the Alcotest 9510 may print out the ultimate results in violation of WAC 448-16- 10 State v. Keller, No. 101171-7 Whitener, J., dissenting
060(2), and the analysis of the subject’s breath sample will not be reliable or
accurate. To avoid absurd outcomes, RCW 46.61.506(4)(a)(vi) must be read as being
done at the time of the analysis.
Third, even if the plain reading is unambiguous, this court may add or subtract
from the clear language of a statute, rule, or regulation when the addition or
subtraction of language is imperatively required to make the statute rational. Dep’t
of Licensing v. Cannon, 147 Wn.2d 41, 57, 50 P.3d 627 (2002). The mean agreement
requirement under RCW 46.61.506(4)(a)(vi), just like all the other foundational
requirements under RCW 46.61.506(4)(a), is not rational if not done proximate to
the breath analysis. Without the Alcotest 9510 doing the required mean calculation
and comparison at the time of the breath analysis, the Alcotest 9510 may print out
the ultimate results when it should not.
When the Alcotest 9510 took its breath samples from Keller, it did not perform
the mean calculation and comparison at the time of the analysis, as required in RCW
46.61.506(4)(a)(vi) and former WAC 448-16-060(2). This calculation is a
foundational requirement under RCW 46.61.506(4)(a)(vi), necessary for the breath
analysis results to be admissible at trial. The trial court was correct in suppressing
the results.
11 State v. Keller, No. 101171-7 Whitener, J., dissenting
C. Former WAC 448-16-060(2) – The method approved for mean calculation
and comparison
When Keller provided breath samples to the Alcotest 9510 in 2020, the
machine was required to perform the mean calculation and comparison according to
the method prescribed in former WAC 448-16-060(2). The regulation prior to
amendment in 2022 states:
Pursuant to RCW 46.61.506 the following method is approved for determining whether two breath samples agree to within plus or minus 10 percent of their mean. …. (2) … For the Drager instrument, the mean of all four results will be calculated and rounded to four decimal places. Former WAC 448-16-060 (emphasis added). The majority’s interpretation of former
WAC 448-16-060(2) contradicts the state toxicologist’s own interpretation of the
regulation. The majority holds that this does not require the Alcotest 9510 to do the
calculation, nor does it require the calculation to be done at the time the machine
performs the analysis, because it is written in the passive voice, uses the future tense
with “will be,” and does not have the necessary specificity of temporal proximity to
the breath analysis. Majority at 31.
Former WAC 448-16-060(2) is a regulation created by the state toxicologist,
with RCW 46.61.506 as the enabling statute. Rules of statutory construction apply
to administrative rules and regulations. Overlake Hosp. Ass’n v. Dep’t of Health, 12 State v. Keller, No. 101171-7 Whitener, J., dissenting
170 Wn.2d 43, 51, 239 P.3d 1095 (2010). This court gives a high level of deference
to an agency’s interpretation of its regulations based on the agency’s expertise and
insight gained from administering the regulation. Brady v. Autozone Stores, Inc., 188
Wn.2d 576, 581, 397 P.3d 120 (2017). Once it was clear to others outside the state
toxicologist’s office that the Alcotest 9510 was truncating rather than rounding, in
violation of former WAC 448-16-060(2), the state toxicologist sought to amend
former WAC 448-16-060(2). In July 2022, the state toxicologist filed a preproposal
statement of inquiry; there she stated the reason for the amendment:
WAC 448-16-060, in its current form, provides a method of determining agreement between duplicate breath samples by rounding the mean of the four results to the fourth decimal place. However, the evidential instrument, known as the Draeger Alcotest 9510, truncates to the fourth decimal place. This rule change is necessary to align the WAC language and the method employed by the Draeger Alcotest 9510.” Wash. St. Reg. 22-14-099 (2022) (emphasis added) (boldface omitted). Here, it is
explicit that the agency, specifically the state toxicologist, interpreted former WAC
448-16-060(2) as requiring the Alcotest 9510 to perform the calculation. The
Alcotest 9510 was in violation of former WAC 448-16-060(2) as the “method
employed” was not in “align[ment]” with the method required in former WAC 448-
16-060(2). The same reason is mentioned in the proposed and permanent rules
filings by the state toxicologist. Wash. St. Reg. 22-17-156 (2022); Wash. St. Reg.
22-21-032 (2022). Given the high level of deference to an agency’s interpretation of 13 State v. Keller, No. 101171-7 Whitener, J., dissenting
its own regulation, former WAC 448-16-060(2) required the Alcotest 9510 to
perform the mean calculation, rounded to four decimals, at the time of the analysis.
When the Alcotest 9510 took its breath samples from Keller, it did not perform
the mean calculation and comparison at the time of the test, as required in RCW
46.61.506(4)(a)(vi) and former WAC 448-16-060(2). Performance of this
calculation in accordance with former WAC 448-16-060(2) is a necessary
requirement under RCW 46.61.506(3) and RCW 46.61.506(4)(a)(vi) for the validity
and admissibility of the results of the breath analysis. Therefore, the trial court was
correct in suppressing the results.
D. State v. Baker
This court, in State v. Baker, held that “before the results of such tests may be
admitted in evidence, [the State must establish] … [t]hat the machine was properly
checked and in proper working order at the time of conducting the test.” 56 Wn.2d
846, 852, 355 P.2d 806 (1960). The Alcotest 9510 is required to perform the mean
calculation and comparison at the time of the analysis, per former WAC 448-16-
060(2). Here, the Alcotest 9510 was not in “proper working order” at the time of the
analysis because it did not perform the required mean calculation and comparison at
the time of the analysis. The required mean calculation and comparison is also a
check on the Alcotest 9510, as it must abort the analysis if a result falls outside the
14 State v. Keller, No. 101171-7 Whitener, J., dissenting
parameters of the required mean calculation and comparison. Ex. 4A (WSP
TRAINING MANUAL). Here, the Alcotest 9510 was not “properly checked” at the time
of the test as it never performed the mean calculation and comparison at the time of
the analysis, per former WAC 448-16-060(2). Therefore, the Alcotest 9510 that
collected Keller’s breath sample was not “properly checked,” nor was it in “proper
working order” at the time of the breath analysis. Under Baker, the trial court was
correct in suppressing the breath analysis results because the results were
inadmissible. 56 Wn.2d at 852.
E. ER 702, 401, 402, and 403
Dr. Fiona Couper became the state toxicologist in 2008. CP at 39. She had
submitted specifications for a breath analysis instrument to a bidding process in
2008. CP at 40. The bid specifications asked for the instrument to perform the mean
calculation with truncation. CP at 41. The bid specifications also asked for the
instrument to not print out the ultimate results if they did not satisfy the mean
calculation and comparison, pursuant to former WAC 448-16-060(2). CP at 41.
Ultimately, Dr. Couper approved the Alcotest 9510. CP at 42.
Despite knowing that the Alcotest 9510 performed the mean calculation with
truncation since the bidding process in 2008, Dr. Couper testified by declaration
15 State v. Keller, No. 101171-7 Whitener, J., dissenting
(dated May 8, 2015) in practically every DOL administrative hearing, under the
penalty of perjury, that
[a]ll approved breath test instruments calculate whether the breath test results are within plus or minus 10% of their mean in accord with [former] WAC 448-16-060. If a breath sample is outside this parameter, no breath test result is generated. CP at 460. Regrettably, we now know the Alcotest 9510 never performed the mean
calculation according to former WAC 448-16-060; instead, it truncated the mean to
four decimals rather than rounded the mean to four decimals. On June 16, 2021,
WSP sent a letter to the Washington Association of Prosecuting Attorneys stating:
On June 3, 2021, Washington State Patrol Impaired Driving Section (IDS) was notified that the process used by the Draeger Alcotest 9510 to determine agreement of duplicate breath samples is potentially not calculated in accordance with the [former] Washington Administration Code (WAC 448-16-060). CP at 133. Given the misrepresentations and false statements known and testified to
by Dr. Couper about the Alcotest 9510’s alleged compliance with former WAC 448-
16-060(2), the trial court excluded Dr. Couper’s testimony pursuant to ER 702, 401,
402, and 403. CP at 104, 106, 109. Dr. Couper’s testimony was necessary for the
admission of the Alcotest 9510’s breath analysis results, and her testimony’s
exclusion prevented the admission of Keller’s breath analysis results.
Review for evidentiary rules is an abuse of discretion standard. State v. Arndt,
194 Wn.2d 784, 799, 453 P.3d 696 (2019). An abuse of discretion occurs if the
16 State v. Keller, No. 101171-7 Whitener, J., dissenting
court's decision is manifestly unreasonable or rests on untenable grounds. State v.
Griffin, 173 Wn.2d 467, 473, 268 P.3d 924 (2012). A decision rests on untenable
grounds if it rests on facts unsupported in the record or was reached by applying the
wrong legal standard. Id. Despite this high standard of review, the majority reverses
the trial court’s evidentiary rulings under the premise that Dr. Couper’s testimony
was never false or misleading because RCW 46.61.504(3), RCW 46.506(4)(a)(vi),
and former WAC 448-16-060(2) do not require the Alcotest 9510 to perform the
mean calculation and comparison according to former WAC 448-16-060(2), nor do
they require that it must be done proximate to the analysis. Majority at 41. The
majority is incorrect. The trial court’s underlying premise is correct, that RCW
46.61.504(3), RCW 46.506(4)(a)(vi), and former WAC 448-16-060(2) require the
Alcotest 9510 to perform the mean calculation and comparison at the time of the
breath analysis according to the method in former WAC 448-16-060(2). I would
affirm the trial court’s evidentiary rulings.
II. RALJ 2.2(c)(2) – The Practical Effect of the Order
The State has a right to file an interlocutory appeal from a pretrial order
suppressing evidence under RALJ 2.2(c)(2). RALJ 2.2(c)(2) states:
The State or local government may appeal in a criminal case only from the following decisions of a court of limited jurisdiction and only if the appeal will not place the defendant in double jeopardy:
17 State v. Keller, No. 101171-7 Whitener, J., dissenting
.… …. [a] pretrial order suppressing evidence, if the trial court expressly finds that the practical effect of the order is to terminate the case. In other words, the State can appeal the pretrial suppression of evidence only if the
trial court finds that the State can no longer proceed with their case with the
suppression of that evidence.
When the trial court suppressed the Alcotest 9510’s analysis of Keller’s
breath, the State sought a direct appeal by this court pursuant to RALJ 2.2(c)(2),
requiring the trial court to find that the “practical effect” of the suppression of the
Alcotest 9510’s results “is to terminate the case.” The trial court granted the State’s
RALJ 2.2(c)(2) motion, allowing the State to seek direct review of the trial court’s
suppression order by this court. CP at 134.
As an issue of first impression, it is important to reach this issue with clarity.
The majority glosses over the analysis to be used by a trial court considering a RALJ
2.2(c)(2) motion and primarily discusses the appellate standard of review of that
decision. I will discuss both.
A. Appellate review of a RALJ 2.2(c)(2)
On this issue of first impression, the majority acknowledges that this is a
question of mixed law and fact, generally reviewed de novo by the appellate courts,
but chooses to review a RALJ 2.2(c)(2) decision under an abuse of discretion 18 State v. Keller, No. 101171-7 Whitener, J., dissenting
standard. Majority at 24. The majority looks to RAP 2.2(b)(1) and CR 54(b) as an
analogy to aid with interpretation. They hold that the level of appellate review for
RALJ 2.2(c)(2) is abuse of discretion because RAP 2.2(d) contains similar language
as CR 54(b), which appellate courts review trial court findings for abuse of
discretion. Majority at 23.
This is not convincing. RAP 2.2(d) is not the RAP counterpart to RALJ
2.2(c)(2), which is what this motion was brought under. It is hard to understand why
the majority justifies placing the level of appellate review for RALJ 2.2(c)(2)
determinations in the exception of mixed questions of fact and law. Accordingly, the
trial court’s RALJ 2.2(c)(2) decision must be reviewed de novo because this is a
question of mixed fact and law. Like summary judgment or judgment on the
pleadings, both mixed questions of fact and law are reviewed de novo. In this case
this determination was made pretrial, based predominately on the documents filed,
specifically the incident report. CP at 124-35.
B. Trial court analysis under RALJ 2.2(c)(2)
“Practical” and “terminate” are not defined in the statute. We may discern the
plain meaning of nontechnical statutory terms from their dictionary definitions. State
v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010). “Practical” is defined as “of,
relating to, or manifested in practice or action : not theoretical or ideal.” MERRIAM-
19 State v. Keller, No. 101171-7 Whitener, J., dissenting
WEBSTER ONLINE DICTIONARY, https://www.merriam-
webster.com/dictionary/practical (last visited Apr. 1, 2024). “Terminate” is defined
as “to bring to an end : CLOSE.” Id. https://www.merriam-
webster.com/dictionary/terminate (last visited Apr. 1, 2024). With those definitions,
a trial court with a RALJ 2.2(c)(2) motion before it would have to determine whether
the State, in actuality, can proceed with their case as charged. Whether or not it will
be particularly difficult for the State to proceed is immaterial to this determination.
It is important first to understand the charge brought in this case and the
alternative bases alleged in the information. Keller was charged with one count of
DUI under RCW 46.61.502(1) with two alternative means alleged. CP at 1-2. RCW
46.61.502(1) makes it unlawful to drive a vehicle with a blood or breath alcohol
concentration of 0.08 or higher, RCW 46.61.502(1)(a) (per se DUI), or while “under
the influence of or affected by intoxicating liquor,” RCW 46.61.502(1)(c) (“affected
by” DUI). Keller was charged with both means. CP at 1-2.
The per se DUI requires, essentially, two pieces of evidence: proof the
defendant was driving and the blood or breath alcohol test results. Independent of
the per se DUI is the alternative “affected by” DUI, which focuses on evidence other
than the mere test results. Evidence supporting the “affected by” DUI includes
defendant’s driving, officer’s observations, field sobriety test performance,
20 State v. Keller, No. 101171-7 Whitener, J., dissenting
defendant’s admissions, and any other testimony to establish that the defendant was
affected by alcohol. Significantly, this evidence is developed long before a blood or
breath alcohol test is administered and this evidence is independent from the test
results.2
The error that the majority and district court make is determining whether the
evidence would support a conviction. The correct question is whether the evidence
is sufficient to prosecute. In Keller’s case, it is. Here, even with the suppression of
the Alcotest 9510’s breath analysis, there was sufficient facts to proceed with the
“affected by” DUI. On May 9, 2020, law enforcement was dispatched to a “single
vehicle collision into a ditch.” CP at 4. The heavily damaged vehicle in the ditch was
registered to Keller. CP at 4. Keller appeared to be “walking and talking” normally
with the medics. CP at 4. Keller admitted to driving. CP at 4. Keller had the odor of
intoxicants. CP at 4. Keller agreed to do the standardized field sobriety tests and had
six out of six clues on the horizontal gaze nystagmus test 3, one out of eight clues on
the walk and turn test, and zero out of four clues on the one-leg stand test. CP at 4.
2 The suppression of a breath alcohol content (BrAC) result to a DUI prosecution is distinct from the suppression of actual contraband, such as the suppression of drugs in a drug possession case. An order excluding illegal drugs in a drug possession case would likely have the practical effect of terminating the case. Without admitting the drugs into evidence, it would be virtually impossible to prove the defendant possessed them. This is not true for a BrAC result to a DUI case. It is possible to prosecute a DUI without a blood or breath alcohol concentration test result. 3 Observation of four or more clues, when the horizontal gaze nystagmus test is performed properly, implies a high likelihood that the subject’s blood alcohol concentration is at or above 0.08. 32 CALLAHAN, supra, at §21.11 (quoting NAT'L HIGHWAY TRAFFIC SAFETY ADMIN., TRANSP. SAFETY INST., INT'L ASS’N OF CHIEFS OF POLICE, DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TEST (SFST) REFRESHER, PARTICIPANT MANUAL Session 3, at 9 (2015)). 21 State v. Keller, No. 101171-7 Whitener, J., dissenting
After being read his Miranda 4 rights, Keller admitted he drank alcohol at his
girlfriend’s birthday party prior to driving. CP at 5. There existed sufficient indices
of impairment to proceed with prosecuting Keller under the “affected by” DUI.
Prosecution was not futile here. The “affected by” DUI remains separate, and the
machine test results, without expert testimony tying the results to how the defendant
is affected at the level of alcohol concentration disclosed, is simply irrelevant. While
in this case, the State may not have a strong case to pursue the “affected by” theory,
the evidence in support of that charged alternative remains unaffected by the
suppression order and supports probable cause.
I would conclude the State failed to show the practical effect of suppressing
the breath alcohol content results was to terminate the case, and therefore, the pretrial
suppression order is not appealable. I would reverse the district court’s order to the
contrary and remand for trial.
In our courts, confidence in the reliability and accuracy of DUI technology
and standards set by the state toxicologist in criminal prosecutions is and should be
4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 22 State v. Keller, No. 101171-7 Whitener, J., dissenting
of the utmost importance. Holding the state toxicologist to their own standards meets
the goal of building trust and confidence in our DUI laws.
Here, the Alcotest 9510 at the time of the breath analysis did not perform the
mean calculation and comparison as required under former WAC 448-16-060(2). I
would affirm the trial court’s suppression of the results of the breath analysis and the
trial court’s exclusion of the state toxicologist’s testimony. In addition, I would
reverse the trial court’s order granting the State’s RALJ 2.2(c)(2) motion.
______________________________
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Cite This Page — Counsel Stack
545 P.3d 790, 2 Wash. 3d 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-keller-wash-2024.