Breath Test Results Upheld Despite Chewing Tobacco residue
A narrow majority on the Washington Supreme Court has ruled that breathalyzer evidence may be admitted in a vehicular homicide case even when an arresting officer observes small pieces of chewing tobacco lodged between a driver’s teeth prior to testing.
The ruling, issued Thursday, reverses no lower-court decision but affirms the Court of Appeals, clearing the way for prosecutors to rely on Sliger’s breath test readings as part of their case.
John Henry Sliger faces charges in Ferry County Superior Court after a April 2020 crash involving a dirt bike rider who later died. At the time of the collision, Sliger told Deputy Mitchell Kahns he had consumed alcohol earlier that day. Kahns also noticed chewing tobacco in Sliger’s mouth and directed him to spit it out before conducting a portable breath test. Sliger was subsequently arrested for driving under the influence.
Later, at the Stevens County Jail, Sliger consented to a more detailed Draeger breath test. When asked whether any foreign substances remained in his mouth, he replied no. However, Kahns documented in his arrest report that he observed “tiny tobacco strands stuck in teeth,” which were not removed before testing. The resulting alcohol reading exceeded the legal limit.
Sliger later moved to exclude the test results, arguing that state law in force during the incident required proof the driver had “no foreign substances” in the mouth at the start of a 15-minute observation period. He contended that “any” should be interpreted broadly—meaning even trace amounts, such as visible tobacco flecks, could render the test inadmissible.
The trial court denied the motion, citing Sliger’s own statement, and the Court of Appeals subsequently affirmed.
Writing for the majority, Justice Barbara Madsen—serving as a justice pro tempore—explained that an overly strict reading of “any” would produce impractical outcomes, excluding reliable tests over minuscule, functionally irrelevant debris.
She noted the legislature intended the breath test framework to promote timely accountability for impaired driving and to reserve most questions about test accuracy for jury determination, rather than pretrial judicial exclusions.
The court concluded the state satisfied its evidentiary burden through expert testimony from Trooper John Axtman, a seasoned breath test technician. Axtman testified that small tobacco particles retained in the teeth are unlikely to impact test results, in contrast to larger, loose tobacco masses that might remain in the mouth.
Madsen’s opinion included a procedural note: when the presence or significance of a foreign substance is unclear, the prosecution must present expert input confirming the substance does not compromise test reliability. The defendant retains the option to contest the test’s scientific validity during trial.
Justice Steven González filed a separate concurrence, stating that expert evidence was not essential and that Sliger’s assurance alone sufficed to support a reasonable assumption that only a negligible amount of tobacco remained.
In dissent, Justice Salvador Mungia, joined by Justices Sheryl Gordon McCloud, Raquel Montoya-Lewis, and Mary Yu—also a justice pro tempore—argued the majority’s approach dilutes statutory safeguards. They maintained that the plain meaning of “any” demands exclusion when visible foreign matter is detected, regardless of its measured effect on test precision.
Chief Justice Debra Stephens and Justices Charles Johnson and G. Helen Whitener joined Madsen’s lead opinion. Justices Colleen Melody and Theodore Angelis did not take part in the decision.
The Legislature established a clear, objective standard, and according to established judicial guidance, courts are directed to refrain from inserting additional terms when the lawmakers have deliberately omitted them.
Records show the Washington State Patrol’s breath testing protocol requires officers to inspect a driver’s mouth for contaminants like chewing tobacco and to rinse if needed. In this instance, Deputy Kahns omitted those steps before conducting the breath analysis.
A separate judicial opinion highlighted that excluding the breath result would not conclude the prosecution, observing the driver acknowledged alcohol consumption, completed standard roadside evaluations, and underwent blood testing at a medical facility prior to formal processing.