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Breath / Blood Testing In BUIs

Breath and Blood Testing for BUIs

Breath and blood testing in the BUI setting is much the same as in the DUI setting.  Breath tests will be conducted on one of three approved breath instruments in Washington State:  (1) the DataMaster; (2) the DataMaster CDM, or; (3) the Draeger 9510.  Although Washington's Implied Consent Law does not govern the administration of BUI breath tests, the statute requiring the scientific validity of breath testing is still applicable.  Consequently, a well-versed BUI defense lawyer will know every aspect of breath testing on all of these instruments.

Blood testing will usually be conducted pursuant to a warrant.  Search warrant law is a complicated area and an experience BUI defense attorney will know this law backwards and forwards.  The collection, storage, transportation and testing of blood samples are all area that must be carefully examined before a proper defense can be established. 

Breath and Blood Testing Requirements in BUI Cases

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:

  1. (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
  2. (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
  3. (c) The person is under the influence of or  affected by intoxicating liquor or any drug; or
  4. (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 has shown us at Cowan Kirk Kattenhorn 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).

 Hire the Experienced BUI Defense Attorneys

Many think that BUIs are just like DUIs on the water.  But the issues presented, the nature of the investigations and the legislative scheme at play make Boating Under the Influence its own unique area of the law.  Not just anyone can handle a BUI case.  Hire the lawyers who have handled more BUI cases than any law firm in this state.  Call us today at 425.-822-1220.  

Cowan Kirk Kattenhorn


At Cowan Kirk Kattenhorn, there is a combined experience of over 75 years defending DUIs, and each lawyer has extensive training, not only in the science of breath and blood testing, they have hands on experience with the DataMaster, the breath testing device used in the state of Washington, and have one of the devices in their library, and they have lectured to other lawyers both in Washington and around he country on how to deal with that machine in court.

Contact Us Today

Experience, knowledge, commitment, passion and integrity: that is what Cowan Kirk Kattenhorn are about. That is what they are known for, and it is why you should contact them for an initial consultation.