Lawsuit targets WSP toxicologist for driver’s license revocation

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A lawsuit filed Wednesday against the Washington State Patrol official responsible for state breathalyzers used to measure the intoxication of drunk driving suspects alleges it violated the rights of suspects whose permit has been revoked.

The lawsuit follows a ruling last week barring the use of breathalyzers against drunk driving suspects in Kitsap County courts.

Although Wednesday’s lawsuit in Kitsap County Superior Court names a drunk driving suspect as a plaintiff, alleging that state toxicologist Fiona Couper filed false statements ensuring the legality of the machines and “private the plaintiff of due process”, it is seeking certification as a class action.

The four district court judges threw out breath machine results in all drunk driving cases in court. The judges also found that Couper “submitted false or misleading testimony by statement in tens of thousands of cases.”

More than 81,000 people in Washington state have been tested over the past decade, according to the complaint filed by David LaCross of LaCross and Murphy and John Groseclose of GS Jones. They filed the complaint on behalf of Nicholas Kori Solis, 29, of Bremerton.

The lawsuit focuses on the process used by the state to revoke a driver’s license after being charged with drunk driving.

This process is administrative and not criminal, and the breathalyzer results are admitted to prove that the driver was impaired in order to allow the state to revoke their driver’s license.

The lawsuit seeks an unspecified sum of money for damages, among other remedies.

“It’s the only way to undo the harm that Ms. Couper has caused so many people,” LaCross told the Kitsap Sun.

Solis was stopped March 19 by a State Patrol Trooper who saw him driving 88 mph on Highway 3, court documents show.

Along with signs of impairment, the soldier tested Solis using the Dräger breathalyzer and found that Solis had a blood alcohol level of around 0.10. He was charged in Kitsap County District Court, pleaded not guilty and entered into a diversion agreement with prosecutors.

The problem is how the machines process breath test results. The state limit for blood alcohol content is 0.08, but when the machines perform the required calculations, they produce results that contain more than two digits.

State law says numbers must be “rounded off,” but instead the software had them “truncated” or cut off the numbers at a certain decimal point, a fact the judges found Couper knew or should have known.

The practical results of truncation versus rounding may actually benefit the accused – because rounding a number could result in a rise and show that a person may have been more drunk, which cannot happen when the digits are simply cut.

However, the judges ruled that it did not matter.

What matters, they held, is that the machines did not comply with the law and, furthermore, Couper certified that they did comply with the law when they did not.

The Kitsap Sun forwarded a copy of the lawsuit to Couper and State Patrol spokesman Chris Loftus for comment.

“It has been a long-standing policy to refrain from commenting on pending litigation,” Loftus wrote in an email.

After the court ruling last week, Loftus denied that Couper intended to mislead judges and said the agency was working to bring the software that runs the machines into compliance with the law.

Couper knew the machines hadn’t been in compliance with the law since at least June 2021, according to a notice the state patrol sent to prosecutors, but the agency didn’t correct what Loftus called a “discrepancy.” “.

However, in the June 2021 notice, the State Patrol only said that the Dräger machines were “potentially” non-compliant with the law.

The decision removed breathalyzer evidence – meaning it cannot be presented to a jury deciding a case – but does not dismiss ongoing drunk driving cases.

This directly affects cases filed in Kitsap District Court, not the county municipal courts. However, the lawyers said they expected lawyers for drunk driving defendants to use the ruling to have the breath test results thrown out of court.

This has apparently happened at least once before.

On Wednesday, the same day Solis’ lawsuit was filed against Couper, a Kent City Court judge dismissed the breathalyzer results in a case based on a similar motion decided by Kitsap County District Court.

Kitsap prosecutors said they could continue to enforce drunk driving laws without the breathalyzers and said they had advised local police to take extra precautions by documenting further signs of impaired faculties during traffic stops, such as the smell of alcohol, tripping or kneading.

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