I recently represented a client in a Washington DOL Hearing (Department of Licensing) regarding whether his license could be suspended for allegedly failing a breath test.
Following a car accident, my client was contacted by police. My client admitted drinking earlier in the evening but had stopped long ago. The officer did not smell any alcohol on my client but said that his eyes were droopy, red and watery. She arrested him for DUI.
Upon arriving at the station, the officer prepared to do a breath test: she checked his mouth for any foreign objects; she waited the 15 minute waiting period required as part of the Washington State Toxicologist breath test protocol. She had my client blow into one BAC Datamaster breath test machines. It returned an “invalid sample” error. She turned to the second machine in the room and had him blow into that one. Subsequently, she charged him with DUI and asked Washington DOL to suspend his license.
We requested a Washington DOL Hearing to challenge the validity of the license suspension. The Washington DOL Hearing Officer threw out the suspension because the officer failed to follow the court protocol.
WAC 448-16-040 requires:“(4) In the event that the instrument records an “invalid sample” result at any point during the subject’s test, that subject’s test should be readministered, after again determining that the subject has no foreign substance in their mouth as outlined in WAC 448-16-040(1), and repeating the fifteen minute observation period.”
The officer didn’t re-do the mouth check and didn’t repeat the fifteen minute observation period.
The result? Client gets to continue driving without a pretrial suspension that would have resulted if we had lost his Washington DOL Hearing. Client may also be able to use the officer’s error to suppress the breath test in the criminal case as well.
The moral? Police reports require a careful reading to catch the small errors that an officer may make. Those errors can yield big results.