State v. Keller
| Decision Date | 21 November 1983 |
| Docket Number | No. 12069-7-I,12069-7-I |
| Citation | 36 Wn.App. 110,672 P.2d 412 |
| Parties | STATE of Washington, Respondent, v. Robert KELLER, Appellant. |
| Court | Washington Court of Appeals |
Davies, Roberts, Reid, Anderson & Wacker, James D. Oswald, Seattle, for appellant.
Seth R. Dawson, Snohomish County Pros. Atty., Ronald Wm. Doersch, Seattle, for respondent.
Robert Keller was found guilty of driving while intoxicated, RCW 46.61.502(1), 1 following a bench trial in South District Court for Snohomish County. The conviction was affirmed on appeal to superior court and is before this court pursuant to a grant of discretionary review. The sole issue presented is whether the evidence is sufficient to support the conviction. We conclude that it is and affirm.
Keller was stopped for driving the wrong way on a one-way street and arrested for driving while intoxicated. He registered a reading of .10 percent on the Breathalyzer. At trial, a Breathalyzer technician testified that the machine had been tested a few days prior to Keller's arrest and had accurately measured five ampules containing a known alcohol solution of .10 percent. On cross-examination, the technician stated that the Breathalyzer had an inherent tolerance limit or margin of error of .01 percent. Keller called an expert who also testified that the Breathalyzer had a margin of error of .01 percent. The trial judge found Keller guilty based on the Breathalyzer reading. 2 Keller appeals, challenging the sufficiency of the evidence to support the conviction.
Keller contends that in order to obtain a conviction under RCW 46.61.502(1), the State must prove beyond a reasonable doubt that the defendant had a blood alcohol content of .10 percent or greater; merely showing that the defendant had a Breathalyzer reading of .10 percent is not enough. Because the evidence established that the Breathalyzer has an inherent margin of error of .01 percent, he argues that his reading of .10 is insufficient to prove a violation of the statute because it establishes only that the blood alcohol level is between .09 and .11.
The significance of evidence as to the margin of error inherent in the Breathalyzer is an issue of first impression in Washington, but it has been addressed in similar contexts in four other states. Three adopted the position advanced by Keller, holding that the Breathalyzer reading must equal or exceed the statutory limit of .10 percent after taking into account the machine's margin of error. State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978); State v. Boehmer, 1 Hawaii App. 44, 613 P.2d 916 (1980); and People v. Campos, 138 Cal.App.3d Supp. 1, 188 Cal.Rptr. 366 (Super.Ct.1982). In State v. Rucker, 297 A.2d 400 (Del.Super.Ct.1972), the court reached the contrary result. The difference in these cases is one of statutory interpretation. Rucker interpreted the Delaware statute as making the test reading conclusive of the issue of blood alcohol content, while the others interpreted their statutes as requiring a blood alcohol content of .10 percent, with a chemical test being only evidence of such content.
Driving with a blood alcohol content of .10 percent or greater is one method of committing the crime of driving while intoxicated, as defined by RCW 46.61.502. State v. Franco, 96 Wash.2d 816, 823, 639 P.2d 1320 (1982). We agree with Keller that a Breathalyzer reading of .10 percent is not conclusive proof of guilt. The State still has the burden of proving beyond a reasonable doubt that the .10 reading is correct, and the defendant may attack the accuracy of the reading. In Franco, the court rejected the argument that the Breathalyzer result is the sole source of evidence and that extraneous facts and circumstances are not considered, stating:
The breath sample must be analyzed, the machine must be proved to be in proper working order beyond a reasonable doubt by the State, the officer who gives the test must be certified and must be proved to be competent at trial. The ampules must be proved beyond a reasonable doubt at trial to have been properly tested and the State always has the burden of proving beyond a reasonable doubt to the jury that the 0.10 percent reading was a correct one. The defense has the same opportunity to...
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