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(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. |
