(1) Upon the trial of any civil or criminal action or proceeding
arising out of acts alleged to have been committed by any person
while driving or in actual physical control of a vehicle while
under the influence of intoxicating liquor or any drug, if the
person's alcohol concentration is less than 0.08, it is evidence
that may be considered with other competent evidence in
determining whether the person was under the influence of
intoxicating liquor or any drug.
(2) The breath analysis shall be based upon grams of alcohol
per two hundred ten liters of breath. The foregoing provisions
of this section shall not be construed as limiting the
introduction of any other competent evidence bearing upon the
question whether the person was under the influence of
intoxicating liquor or any drug.
(3) 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.
(4)(a) A breath test performed by any instrument approved by
the state toxicologist shall be admissible at trial or in an
administrative proceeding if the prosecution or department
produces prima facie evidence of the following:
(i) The person who performed the test was authorized to
perform such test by the state toxicologist;
(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, not to include dental work, fixed or removable, in
his or her mouth at the beginning of the fifteen-minute
observation period;
(iv) Prior to the start of the test, the temperature of the
simulator solution as measured by a thermometer approved of by
the state toxicologist 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 to be determined by the method approved
by the state toxicologist;
(vii) The simulator external standard result did lie between
.072 to .088 inclusive; and
(viii) All blank tests gave results of .000.
(b) For purposes of this section, "prima facie evidence" is
evidence of sufficient circumstances that would support a logical
and reasonable inference of the facts sought to be proved. In
assessing whether there is sufficient evidence of the
foundational facts, the court or administrative tribunal is to
assume the truth of the prosecution's or department's evidence
and all reasonable inferences from it in a light most favorable
to the prosecution or department.
(c) Nothing in this section shall be deemed to prevent the
subject of the test from challenging the reliability or accuracy
of the test, the reliability or functioning of the instrument, or
any maintenance procedures. Such challenges, however, shall not
preclude the admissibility of the test once the prosecution or
department has made a prima facie showing of the requirements
contained in (a) of this subsection. Instead, such challenges
may be considered by the trier of fact in determining what weight
to give to the test result.
(5) When a blood test is administered under the provisions
of RCW 46.20.308, the withdrawal of blood for the purpose of
determining its alcoholic or drug content may be performed only
by a physician, a registered nurse, a licensed practical nurse, a
nursing assistant as defined in chapter 18.88A RCW, a physician
assistant as defined in chapter 18.71A RCW, a first responder as
defined in chapter 18.73 RCW, an emergency medical technician as
defined in chapter 18.73 RCW, a health care assistant as defined
in chapter 18.135 RCW, or any technician trained in withdrawing
blood. This limitation shall not apply to the taking of breath
specimens.
(6) The person tested may have a physician, or a qualified
technician, chemist, registered nurse, or other qualified person
of his or her own choosing administer one or more tests in
addition to any administered at the direction of a law
enforcement officer. The test will be admissible if the person
establishes the general acceptability of the testing technique or
method. The failure or inability to obtain an additional test by
a person shall not preclude the admission of evidence relating to
the test or tests taken at the direction of a law enforcement
officer.
(7) Upon the request of the person who shall submit to a
test or tests at the request of a law enforcement officer, full
information concerning the test or tests shall be made available
to him or her or his or her attorney.
[2004 c 68 § 4; 1998 c 213 § 6; 1995 c 332 § 18; 1994 c 275 § 26; 1987 c 373 § 4; 1986 c 153 § 4; 1979 ex.s. c 176 § 5; 1975 1st ex.s. c 287 § 1; 1969 c 1 § 3 (Initiative Measure No. 242, approved November 5, 1968).]
NOTES:
Rules of court: Evidence of Breathalyzer, BAC Verifier, simulator solution tests -- CrRLJ 6.13.
Finding -- Intent -- 2004 c 68: See note following RCW 46.20.308.
Effective date -- 1998 c 213: See note following RCW 46.20.308.
Severability -- Effective dates -- 1995 c 332: See notes following RCW 46.20.308.
Short title -- Effective date -- 1994 c 275: See notes following RCW 46.04.015.
Legislative finding, purpose -- Severability -- 1987 c 373: See notes following RCW 46.61.502.
Severability -- 1979 ex.s. c 176: See note following RCW 46.61.502.
Severability, implied consent law -- 1969 c 1: See RCW 46.20.911.
Arrest of driver under influence of intoxicating liquor or drugs: RCW 10.31.100.