Home > Research Legal Advice > DUI / DWI > WA DUI Dept of Licensing hearing: Breath test was taken more than 2 hour...
Asked almost 2 years ago - Seattle, WA
FlagWaiting for DOL hearing. 1st DUI, BAC 0.11. Breath test was actually obtained in about 2.5 hours after driving. Please advise if this is a sufficient argument at DOL hearing. Should they dismiss the suspension case on this ground? Thank you.
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As you probably know there are two processes you are dealing with as the result of a DUI charge; the criminal courts and the Department of Licensing. To be convicted of the criminal charge of DUI the jury (or judge) must find, beyond a reasonable doubt, that:
(1) You were driving a motor vehicle on a public roadway;
(2) That this occurred within the State of Washington; and
(3) That your BAC was greater than 0.08% within two hours of driving OR that your ability to drive was impaired by alcohol and/or drugs.
Thus, the two hour issue may help you in the criminal case. The breath test by being outside the two hour window cannot be used to show that you were per se impaired at the time of driving. Instead the prosecutor will have to show that you were impaired by alcohol at the time of driving.
The State may also try to do "retrograde extrapolation" to relate the breath test back to a given BAC at the time of driving. When the WSP toxicologist testifies about this it sounds very convincing and it's easy for a jury to believe that you can establish the BAC at time of driving form a breath test taken hours later. This calculation is actually impossible to do accurately and you need an attorney that understands how to defeat the State's "science."
As far as the DOL hearing goes. RCW 46.20.308 and Chapter 308-103 of the Washington Administrative Code outline the procedures for an Administrative Hearing regarding your license suspension. The State needs to show, by the lower standard of proof of a preponderance of the evidence, that:
1. You were under lawful arrest (including everything leading up to arrest);
.
2. The officer had "reasonable grounds" to believe you driving under the influence;
3. You were properly advised of your "MIranda" rights and implied consent warnings (see RCW 46.20.308(2));
4. You submitted to a BAC test that indicated an alcohol concentration of 0.08%.
Issue 4 includes whether the BAC meets the foundational requirements of RCW 46.61.506 and the State must be able to show the following as a prerequisite to admission:
(i) The person who performed the test was authorized to perform such test;
(ii) The person being tested did not vomit or have anything to eat, drink, or smoke for at least fifteen minutes prior to administration of the test;
(iii) The person being tested did not have any foreign substances in his or her mouth;
(iv) the temperature of any liquid simulator solution utilized as an external standard was thirty-four degrees centigrade plus or minus 0.3 degrees centigrade;
(v) The internal standard test resulted in the message "verified";
(vi) The two breath samples agree to within plus or minus ten percent of their mean;
(vii) The result of the test of the external standard did lie between .072 to .088 inclusive; and
(viii) All blank tests gave results of .000.
As you can see "two hours" is not mentioned in the DOL elements or the foundational requirements for breath test admission. Simply arguing that the test was outside two hours will not get you an automatic dismissal. This doesn't mean you are dead in the water, just that it's not that simple.
Unfortunately, giving you all of the possible ways to use this to argue suppression would be way too long forum like this and would be crossing the line between giving you information about the law and assisting a non-lawyer in the practice of law (prohibited by the bar and Washington law). DOL hearings are hard to win with an attorney and even harder without one. If you are going to hire an attorney to represent you in the criminal case, it would make sense to hire this person to do the DOL hearing as well. If you are using a public defender that person cannot represent you at the DOL hearing (as the DOL hearing is a civil action without the right to an attorney) and you may want to hire an attorney for the DOL hearing only.
