Checklisting Your Way To An Acquittal

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Checklisting Your Way To An Acquittal

By Geoffrey Burg

Litigating a breath test case requires a two front attack. First, there is the fight to win the "global" issues that lead to mass breath test suppressions. These include issues such as "NIST" and its progeny, "approved thermometer," and the "software" issue. When we prevail on these issues, our job is made a little (lot!) easier.

However, not all global issues work. Despite our best efforts, many courts allow breath tests into evidence. This requires the second line of attack. We must then turn to "case specific" issues in the fight for our clients. This is when we really earn our money by litigating against the BAC Datamaster. Fighting the Datamaster is, as we all know, extremely difficult and complicated. Checklists are one way to ensure that we are helping our clients to the best of our ability.


With the hopes of making the fight against Datamaster a little bit easier, I have prepared a series of checklists. Checklists are one way of "spotting" the "case specific" issues in a breath test case. These lists force preparation and organization, critical components to attacking the Datamaster. Checklists help spot issues that may otherwise be missed and thus allow more avenues of negotiations and more favorable resolutions for the client.

The checklists most necessary for issue spotting in a breath test case are as follows:

1.    Client Medical Questionnaire:

These are the medical/background questions that you need from the client to help spot issues. This should be used when first meeting the client or soon after being retained. It helps determine whether there is anything going on with the client that can lead to the breath test being suppressed or whether doubt can be raised about the accuracy and reliability of the breath test at trial.

2.    Pre-trial BAC Records Checklist:

These are the records that should be pulled in every breath test case. The Washington State Patrol Breath Test Section provides a lot of information. This checklist is a way to help organize the information. This checklist is designed so that either the attorney or support staff can prepare the records for review. The page numbers on the checklist correlate to the October 26, 2005 Breath Test Program Policy and Procedure Manual.

3.    Issue Checklist - BAC Datamaster:

This checklist highlights most of the ways to attack the machine. It is for when the breath test is going to be admitted into evidence and help is needed developing a trial theme. This part of trial preparation takes a lot of work. It requires the attorney to learn about a specific area of the machine and the issues that need to be brought up throughout the trial. I find that I have the best success when using only one or two of the issues and then concentrating on them. I do not like the "shotgun" approach of bringing every possible issue and seeing which one sticks.

4.    BAC Foundation Checklist:

Never underestimate the ability of the prosecution to screw up their case. For this reason, it is necessary to have a trial checklist to make sure that the prosecutor has laid the foundation for the breath test to be admitted into evidence.

Breath test admissibility is in flux. The "constitutionality" argument has caused courts to find two primary ways to admit the breath test results. First, some courts seem to be allowing the breath test in under RCW 46.61.506(3) or the "validity" prong for the breath test statute. A checklist has been prepared for analyzing this method of laying the foundation.

Second, other courts have allowed it in under 46.61.506(4) or the "admissibility" prong of the breath test statute. Under this admissibility prong of the statute, it appears that given both the rules of statutory construction and years of case law (i.e. Straka through Clark-Munoz) the breath test would first need to be found "valid" under RCW 46.61.506(3) for it to then be "admissible" under RCW 46.61.506(4). Because of this, a second checklist was prepared for those jurisdictions where a breath test must first be found "valid" to later be "admissible."

5.    Trial Notebook Checklist:

A trial should begin with all the materials that could possibly be needed at your fingertips. When going to trial in a breath test case, this checklist provides the minimum amount of documents necessary. My preference is to have multiple copies of each of these materials should you need them for purposes of impeachment. I also like to copy them 4 pages to 1 and double side them, this eliminates a notebook so heavy that I will never use it. In addition to what is on this list you will obviously need the materials for your specific issue.


Issue spotting is only the beginning of trial preparation. After the issue has been spotted, the attorney must delve into the depths of that issue to prepare for trial and figure out the best strategy for bringing the defense.

Once the issue is spotted, the attorney then must begin asking the tough questions:

  • What should I read and who should I talk to, to become the most knowledgeable person on the planet (or at least courtroom) about this issue?
  • Should I alert the prosecutor to this issue, hoping that she will give my client a deal; or will notifying the prosecutor just destroy my only defense?
  • Should I bring this issue up for pretrial motions and hope that the judge suppresses the breath test; or will I likely lose the hearing and be better off maintaining the element of surprise for trial?
  • Should I discuss this issue at all points in the trial; or should I just try and sneak it in and then highlight it during closing argument?
  • Should I retain an expert witness; or can I rely upon the state's expert?
  • Should I cross-examine the breath test technician on this issue; or will they just obliterate my defense and make me look foolish?

There is often no right or wrong answer to any of these questions, they are a matter of judgment. It is only after you have made the decision and your client sends you the glowing thank you note that you know you have made the right one!


Most of us will never know as much about the breath testing machine as a breath test technician. That is okay. What is important is to have a system in place to spot the issues and the commitment and dedication to learn the intricacies of those issues. This work pays off by helping get pretrial resolutions and not guilty verdicts at trial.

You will not win them all, but you will win some, and for the ones you lose, you'll have made them earn it.

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