DUI Breath Test - Two Hour Limit?

Diana Lundin of our office focuses her practice upon representation of our clients at Department of License suspension proceedings and also, where necessary, on the appeal of suspension orders. A recent case of Diana's illustrates the challenges facing a driver who seeks save his or her license from suspension at the hands of the Department of licensing.

The case involved a Seattle DUI arrest made by a Seattle DUI squad police officer. The circumstances in the case resulted in the breath test being administered approximately 3 hours after the time of the arrest, and thus, at least three hours after the time of driving. RCW 46.61.502, Washington's DUI law applicable to any Seattle DUI arrest, defines a DUI as follows:

"A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state..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..." Further, "Analyses of blood or breath samples obtained more than two hours after the alleged driving may be used as evidence that within two hours of the alleged driving, a person had an alcohol concentration of 0.08 or more.."

Every DUI court in Seattle, Washington, or elsewhere within Washington has generally interpreted the statute the very same way -- a breath test reading taken beyond two hours from the time of driving is relevant but only if expert testimony is presented showing what is the breath alcohol level would have been within two hours, based upon the reading taken outside of two hours. The scientific process for this calculation is "retrograde extrapolation." Without this evidence, the reading taken beyond two hours has no relevance to whether a person was over the legal limit within two hours.

A Seattle DUI arrest with a breath test reading of .08 or higher results not only in the charge of DUI in a Seattle court, but the Department of Licensing will also seek to suspend the license based upon the very same reading. However, whereas a Seattle DUI court will require expert testimony to "link" the reading taken beyond two hours to the time period "within two hours," the Department of Licensing suspended the license without such proof in a recent case handled by FBD attorney Diana Lundin. Diana appealed the Department of licensing's ruling to a higher court - the King County Superior Court. There, a Superior Court judge reviewed the facts regarding this Seattle DUI arrest, agreed with Diana's arguments, and reversed the suspension of the driver's license. The Department of Licensing has now appealed this ruling and we await a decision from the Court of Appeals.

Diana's handling of the license suspension arising out of this Seattle DUI arrest illustrates two things: (1) DUI law is complex, and (2) the only way to win a DUI case is to retain an attorney like Diana Lundin who knows the law and has the tenacity to fight for you at every stage.

If you are charged with a Seattle DUI, or if you have been arrested for a King County DUI or elsewhere, call Fox Bowman Duarte for a free consultation.