Washington State Blood Tests Are Subject To Challenge
November 29th, 2008
It seems that drug based DUI cases are on the rise and every year I see more and more of these types of cases. In a drug based DUI, Vehicular Assault or Vehicular Homicide case the blood test is critical evidence, yet it is subject to a motion to suppress on grounds that the prosecution cannot lay a foundation for its use at trial. RCW 46.20.308 requires the blood or breath test in a DUI, Physical Control, Vehicular Assault or Vehicular Homicide to comply with the provisions of RCW 46.61.506. RCW 46.61.506 governs the administration of blood and breath tests. RCW 46.61.506(3) states, Analysis of the person’s blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 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. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. The Washington Supreme Court has specifically referred to RCW 46.61.506 as an evidence admissibility statute. Dept. of Licensing v. Cannon, 147 Wn.2d 41, 52 (2002). As such, Washington case law has consistently held compliance with the provisions of the WAC, promulgated pursuant to RCW 46.61.506, is the exclusive means of establishing the admissibility of tests conducted pursuant to RCW 46.61.506. See State v. Baker, 56 Wn. 2d 860 (1960) (test suppressed because State could not establish 15 minute observation period, now contained WAC 448-13-040.); State v. Ryan, 43 Wn. App. 488 (1986) (test suppressed because State could not establish ampoule was certified on breathalyzer, per WAC 448-12-015.); State v. Watson, 51 Wn. App. 947 (1988) (test suppressed because breathalyzer calibration test not conducted within 90 days of defendant’s test under WAC 448-12-015.); State v. Garrett, 80 Wn. App. 651 (1996) (blood test suppressed because State could not establish anticoagulant within blood sample as required under WAC 448-14-020); State v. Bosio, 107 Wn. App. 462 (2001) (blood test was suppressed because State could not establish enzyme poison within blood sample as required under WAC 448-14-020); DOL v. Cannon, 147 Wn.2d 41, 50 P.3d 627 (2002)(test suppressed because State did not establish the thermometer used to check the temperature of the simulator solution was certified pursuant to WAC 448-13-035); Seattle v. Wanda Clark-Munoz, 93 P.3d 141; 2004 Wash. LEXIS 457 (2004)(test suppressed because City did not establish compliance with WAC 448-13-035, which required the use of a reference thermometer traceable to NIST standards to certify the thermometers used in the simulator solution); and State v. Hultenschmidt, 102 P.3d 192 (2004) (Blood test suppressed because no evidence that enzyme poison was added to blood sample).RCW 46.61.506 requires the proponent of the blood or breath test to establish compliance with RCW 46.61.506 and the relevant WACs. As quoted above, RCW 46.61.506(3) states, “[a]nalysis of the person’s blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 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.” Pursuant to RCW 46.61.506(3) the state toxicologist adopted WAC 448-14 as the approved method for conducting blood tests. These WACs only deal with blood alcohol tests. There are no WACS dealing with the methods of quantitative analysis of blood samples for drugs. In addition, the State Toxicologist has not issued a permit card to anyone for the purpose of conducting a quantitative analysis of blood samples for drugs. Therefore, there is no compliance with RCW 46.61.506 and the results of the blood test should be suppressed if it reveals the presence of drugs. The State Toxicologist has only established methods to test blood for blood alcohol. For example, WAC 448-14-010 sets forth the criteria for approved methods of quantitative analysis of blood samples for alcohol. WAC 448-14-010 states Any quantitative blood alcohol analysis method which meets the following criteria is approved by the state toxicologist and may be used in the state of Washington. Analysis of urine for estimation of blood alcohol concentrations is not approved by the state toxicologist in the state of Washington. The blood analysis procedure should have the following capabilities: (1) Precision and accuracy.(a) The method shall be capable of replicate analyses by an analyst under identical test conditions so that consecutive test results on the same date agree with a difference which is not more than 3% of the mean value of the tests. This criterion is to be applied to blood alcohol levels of 0.08% and higher.(b) Except for gas chromatography, the method should be calibrated with water solutions of ethyl alcohol, the strength of which should be determined by an oxidimetric method which employs a primary standard, such as United States National Bureau of Standards potassium dichromate.(c) The method shall give a test result which is always less than 0.005% when alcohol-free living subjects are tested. (2) Specificity.(a) On living subjects, the method should be free from interferences native to the sample, such as therapeutics and preservatives; or the oxidizable material which is being measured by the reaction should be identified by qualitative test.(b) Blood alcohol results on post-mortem samples should not be reported unless the oxidizable substance is identified as ethanol by qualitative test.WAC 448-14-020 sets forth the operational discipline of blood samples for alcohol. Specifically, WAC 448-14-020 states,(1) Analytical procedure. (a) The analytical procedure should include:(i) A control test(ii) A blank test(iii) Duplicate analyses that should agree to within 0.01% blood alcohol deviation from the mean.(b) All sample remaining after analysis should be retained for at least three months under suitable storage conditions for further analysis if required.(c) Each analyst shall engage in a program in which some blood samples containing alcohol are exchanged with other laboratories and tested on a blind basis so that precision and accuracy can be evaluated no less than one time per year.(2) Reporting procedure.(a) The results should be expressed as grams of alcohol per 100 ml of whole blood sample.(b) The analysis results should be reported to two significant figures, using the mathematical rule of rounding.(c) Blood alcohol results on living subjects 0.0009% or lower shall be reported as negative. Blood alcohol results on post-mortem samples of 0.019% or less shall be reported as negative. (See WAC 448-14-010 (2)(b))(3) Sample container and preservative.(a) A chemically clean dry container consistent with the size of the sample with an inert leak-proof stopper shall be used.(b) Blood samples for alcohol analysis shall be preserved with an anticoagulant and an enzyme poison sufficient in amount to prevent clotting and stabilize the alcohol concentration. Suitable preservatives and anticoagulants include the combination of sodium fluoride and potassium oxalate. WAC 448-14-030 sets forth the qualifications for a blood alcohol analyst. Specifically, WAC 448-14-030 states, (1) Minimum qualifications for the issuance by the state toxicologist of a blood alcohol analyst permit shall include college level training in fundamental analytical chemistry with a minimum of five quarter hours of quantitative chemistry laboratory or equivalent, with a passing grade.(2) The state toxicologist shall issue a blood alcohol analyst permit to each person he finds to be properly qualified, and he shall hold written, oral or practical examinations to aid him in judging qualifications of applicants. Such permits shall bear the signature or facsimile signature of the state toxicologist and be dated.(3) The blood alcohol analyst permits are subject to cancellation by the state toxicologist if the permittee refuses or fails to obtain satisfactory results on samples periodically distributed to the permittees by the state toxicologist. The State Toxicologist has never issued a permit to a blood analyst for the purpose of analyzing blood for drugs other than alcohol. The State Toxicologist has never approved of methods for the quantitative analysis of blood samples for drugs. Therefore, if the test the blood was for drugs then the test results are subject to a motion to suppress on grounds that the test does not comply with RCW 46.61.506.This article discusses generally one approach to challenging evidence obtained pursuant to an arrest for drunk driving that results in either a Washington state misdemeanor drunk driving charge or a felony charge of vehicular assault or vehicular homicide. Such charges are brought routinely in courts such as Everett District Court (Snohomish County, misdemeanor DUI) and King County Superior Court (King County, Vehicular Assault or Vehicular Homicide.)Every drunk driving case presents unique factual and legal challenges that should be asserted by a competent, dedicated DUI defense attorney. In addition to knowledge of science and the law, a criminal defense attorney practicing in these areas should have particular knowledge of the local practices of the courts and prosecuting attorneys, whether the charge is pending in Seattle, Pierce County, Whatcom County, Spokane or any jurisdiction in between.