| BUI Home Page > Breath / Blood Testing |
The BUI statute, itself specifically sets forth all breath/blood testing requirements.
It shall be a violation for a person to operate a vessel while under the influence of intoxicating liquor or any drug. A person is considered to be under the influence of intoxicating liquor or any drug if:
- (a) The person has 0.08 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of the person’s breath made under RCW 46.61.506; or
- (b) The person has 0.08 percent or more by weight of alcohol in the person's blood, as shown by analysis of the person's blood made under RCW 46.61.506; or
- (c) The person is under the influence of or affected by intoxicating liquor or any drug; or
- (d) The person is under the combined influence of or affected by intoxicating liquor and any drug.2
Clearly then, since all chemical testing must be conducted in accordance with the requirement of RCW 46.61.506, the litany of challenges available in the DUI context are present in the BUI context as well. Consequently, law enforcement must strictly comply with each and every statutory and administrative requirements prior to gaining admission of the test results in court. Analysis of the person's blood or breath to be considered valid under the provisions of RCW 46.61.506 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. And it is the state toxicologist who is directed to approve satisfactory techniques or methods for proper administration of a breath test.
Experience tells the lawyers at Cowan, Kirk & Gaston that the observation period is more challenging in the BUI context than with DUIs. While a driving case often times involves only one investigating officer, who stops, investigates, arrests and administers the test, most BUI cases involve several police officers and often multiple police agencies. Often times they are stopped on the waterway by marine patrol. Breath testing is nearly always administered by another officer so that the marine patrol can get back out on the water to continue with marine patrol. During certain events, where emphasis patrols are in place, temporary facilities may be set up to handle chemical testing. These facilities constitute literal assembly line breath testing with often one operator conducting
2 RCW 79A.60.040(2)(a)-(d).
|
