Cases

City of Seattle v. Clark-Munoz

152 Wn.2d 39, (2004)

745790MAJ
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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 74579-0
Title of Case: City of Seattle v. Wonda Clark-Munoz
File Date: 07/01/2004
Oral Argument Date: 03/23/2004

SOURCE OF APPEAL
----------------
Appeal from Superior Court,
County
Honorable Jeffrey M Ramsdell

JUSTICES
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Authored by Tom Chambers
Concurring: Faith Ireland
Philip James Thompson
Barbara A. Madsen
Charles W. Johnson
Gerry L Alexander
Richard B. Sanders
Susan Owens
Mary Fairhurst

COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Moses Flint Garcia
City of Seattle/Public & Comm Safety Div
700 5th Ave Ste 5350
PO Box 94667
Seattle, WA 98124-4667

Counsel for Respondent(s)
Christine Anne Jackson
Attorney at Law
The Public Defender
810 3rd Ave Fl 8
Seattle, WA 98104-1655

Erick Spencer
The Defenders Association
810 3rd Ave Ste 800
Seattle, WA 98104-1695

Amicus Curiae on behalf of CITY OF WALLA WALLA
Timothy J. Donaldson
Walla Walla City Attorney
15 N 3rd Ave
PO Box 478
Walla Walla, WA 99362

Amicus Curiae on behalf of WASHINGTON FOUNDATION FOR CRIMINAL JUSTICE
Geoffrey L. Burg
Puget Sound Plaza
1325 4th Ave Ste 535
Seattle, WA 98101-2525

Francisco A. Duarte
Fox Bowman & Duarte PLLC
210 Arbor Bldg
1621 114th Ave SE
Bellevue, WA 98004-6956

William Karl Kirk
The Cowan Smith Law Firm
4040 Lake Washington Blvd NE
Suite 300
Kirkland, WA 98033

Ryan Boyd Robertson
Attorney at Law
2104 SW 152nd Ste 4
Burien, WA 98166

Amicus Curiae on behalf of WASHINGTON ASSOCIATION OF PROSECUTING ATTORNEYS
Charles Franklin Blackman
c/o Snohomish County Pros
3000 Rockefeller Ave
Everett, WA 98201-4061

Counsel for Other Parties
Scott Richard Robbins
Hughes Robbins PS
2000 112th Ave NE
Bellevue, WA 98004-2913

Howard Stanton Stein
Attorney at Law
520 112th Ave NE Ste 101
Bellevue, WA 98004

Joshua Saul Schaer
NW Defenders Association
900 4th Ave Ste 3700
Seattle, WA 98164-1018

CHAMBERS, J. - In its efforts to curb drunken driving, Washington
State makes extensive use of breath tests of suspected intoxicated drivers.
Effectively, whether a driver is intoxicated is often decided when the test
is taken. These tests must be reliable, both to further the safety of our
streets and to ensure just application of our law. Today, we consider the
statutory and regulatory procedures for confirming the reliability of these
tests. We conclude that the State failed to comply with them. We affirm
the trial courts below that the breath tests before us were not performed
on properly tested machines, and remand.
BACKGROUND
The breath test used in Washington State compares the amount of
alcohol vapor in a known sample with the alcohol vapor present in a breath
sample, at a known temperature. See WAC 448-13-035, -050, -060. Recently,
the regulations governing breath tests have been amended, apparently in an
attempt to provide standardized procedures that will ensure a high degree
of accuracy. One regulation now reads:

The ability of the simulator to provide a reference ethanol vapor
concentration is a function of its temperature. The thermometers used in
the simulators shall be certified on an annual basis to have an accuracy of
within plus or minus 0.1
degree centigrade. Such certification shall be made using a reference
thermometer traceable to standards maintained by
the National Institute of Standards and Testing (NIST), {1} or its
successor.

WAC 448-13-035 (emphasis added).
The defendants below were all arrested for traffic violations, and
each submitted to a breath test. Each was charged with driving under the
influence under RCW 46.61.502 or its local counterpart. In each case,
counsel moved to exclude the results of the breath test on the grounds that
the test machine thermometers were not properly certified under WAC 448-13-
035 because they were not tested on thermometers traceable to standards
maintained by NIST.
The trial courts agreed and suppressed the tests. As Judges Rietschel
and Doyle ruled:

The language of WAC 448-13-035, 'traceable to standards maintained by NIST'
is clear and not ambiguous. Dr. Emery {UW professor of Metrology}
testified, and Dr. Logan {the State Toxicologist} agreed, that the phrase
is a term of art with an accepted meaning in the scientific community.
Both Dr. Emery and Dr. Logan testified that, according to NIST, for a
thermometer to be calibrated according to NIST standards, there must be an
unbroken chain of comparisons and each test report a range of
uncertainties. . . . {The} calibrations . . . performed 1/18/02 do not
state uncertainties and therefore do not meet the NIST definition of
traceability.

Hall Clerk's Papers (CP) at 317 (Clark-Munoz conclusion of law 6).
The prosecutors sought writs of review of the suppression with the
superior court. Unsatisfied with the result, the prosecutors then sought
review at the Court of Appeals.2 We consolidated and transferred review to
this court. ANALYSIS3
RCW 46.61.502 and Admissibility
The meaning of these statutes and regulations are questions of law, to
be reviewed de novo. City of Seattle v. Allison, 148 Wn.2d 75, 81, 59 P.3d
85 (2002). We apply the standard rules of statutory construction to state
toxicology regulations, reading the regulations in the context of the
larger statutory and administrative system, and avoiding strained
interpretations or absurd results. Id.
A trial judge's ruling on the admissibility of evidence is reviewed
for abuse of discretion. However, when a trial court ruling is based on a
mistaken interpretation of law, this court may vacate the decision or
remand to the trial court for reconsideration under the correct standard.
See id.
A violation of RCW 46.61.502 may be proved in two different ways:
either by showing the defendant's blood alcohol level was at least 0.08
within two hours after the incident (sometimes called 'per se') or by other
evidence, typically testimony, tending to show that the defendant was under
the influence of alcohol and/or other drugs (sometimes called 'other
evidence'). RCW 46.61.502; 13A Seth A. Fine & Douglas J. Ende, Washington
Practice: Criminal Law sec. 804, at 148 (2d ed. 1998). We turn first to
whether these tests are admissible as per se evidence.
1. Traceability
These test results are admissible as per se evidence of intoxication
only if they meet the explicit requirements of chapter 46.61 RCW.
'Analysis of the person's blood or breath to be considered valid under the
provisions of this section or RCW 46.61.502 or 46.61.504 shall have been
performed according to methods approved by the state toxicologist.' RCW
46.61.506(3) (emphasis added); see also State v. Baker, 56 Wn.2d 846, 355
P.2d 806 (1960). The State has the initial burden of establishing
foundation. To do that:
the prosecution must show that (1) the machine was properly checked and in
proper working order at the time of the test, (2) the chemicals used were
of the correct kind and proportion, (3) the subject had nothing in his
mouth at the time of the test, and (4) the test was given by a qualified
operator and in the proper manner. . . . Compliance with approved breath
test procedures is a condition precedent to admission of the test results.
Allison, 148 Wn.2d at 79-80 (emphasis added) (citing Baker, 56 Wn.2d at 852
and State v. Straka, 116 Wn.2d 859, 875, 810 P.2d 888 (1991)). The
question before us is whether these machines have been 'properly checked.'
This hinges on the meaning of the term 'traceable.' If 'traceable' is
given the scientific meaning articulated by NIST, which requires that
uncertainties be noted at each level of removal so that the ultimate
uncertainty is known, then the testing machines have not been properly
checked. If traceable is given a nonscientific meaning, they may comply.
The state toxicologist did not define 'traceable' in the regulations.
The NIST policy on traceability outlines the procedures required for
traceability:

To achieve traceability of measurement results to standards maintained by
NIST, you need to reference your measurement results through an unbroken
chain of comparisons, including the uncertainties at each step, to NIST
standards as the stated references. . . . The chain of comparisons may be
short, if the user has instruments or artifacts calibrated by NIST or . . .
It may be longer, if the user references other comparisons in a chain of
comparisons back to stated references developed and maintained by NIST.
Jagla CP at 347 (NIST, Supplementary Materials, available at (last
visited June 23, 2004)) (emphasis added). We will give weight to the
technical definition of a technical term promulgated by an expert agency.
See, e.g., City of Spokane ex rel. Wastewater Mgmt. Dep't v. Dep't of
Revenue, 145 Wn.2d 445, 454, 38 P.3d 1010 (2002). A regulation need not be
ambiguous for us to consider technical definitions. Id. at 452.
In addition to having a policy on 'traceability,' NIST:

Adopts for its own use and recommends for use by others the definition of
traceability provided in the most recent version of the International
Vocabulary of Basic and General Terms in Metrology: 'property of the result
of a measurement or the value of a standard whereby it can be related to
stated references, usually national or international standards, through an
unbroken chain of comparisons all having stated uncertainties.'
NIST Policy on Traceability, available at traceability%20policy-
external.htm (last modified Dec. 3, 2001) (quoting International Vocabulary
of Basic and General Terms in Metrology (VIM), Definition 6.10, BIPM, IEC,
IFCC, ISO, IUPAC, IUPAP, OIML, (2d ed., 1993)) (last emphasis added). This
is substantially the definition given by Dr. Ashley Emery, Ph.D, a
University of Washington professor and expert witness in the science of
metrology (the study of measurements). He testified that the term
'traceable' in science had 'an internationally agreed upon scientific
meaning' that included a requirement that the uncertainties at each step be
measured. Jagla CP at 51-53, 58. He testified that the requirement that
uncertainties be measured and recorded is a critical element of the NIST
definition. Further, Dr. Emery testified that '{w}ithout a statement of
uncertainty, the measurement is worthless,' and that every scientist would
define 'traceable' in these technical terms. Id. at 91-93, 72.4
The state toxicologist was unaware of the NIST's technical scientific
definition when the regulation before us was promulgated. He testified
that he did not intend to incorporate it into the breath test regulations.
See Jagla CP at 221, 201-02. However, while the state toxicologist may not
have known the precise definition, he did know it was a term of art:

The concept of traceability to a reference standard is a common principle
in measurement science. It describes the notion that there is an absolute
standard for temperature, maintained by the National Institute for
Standards and {Technology} (NIST), and that the reference thermometer used
to certify the mercury in glass thermometers used in this program, must be
compared against a thermometer which has been checked either directly or
indirectly{5} against that absolute standard, and thus can be 'traced' to
it.
State Toxicologist, Wash. St. Reg. 01-17-009 (Aug. 2, 2001). All this
weighs in favor of our conclusion that 'traceable' is a technical term, to
be given its technical meaning.
As Judges Chapman, Eiler, and Jacke found in their well reasoned
opinion:

In order to accept the State's position in this matter, we must find
that Dr. Logan, while citing to the NIST standards, did not intend to
incorporate their clear meaning, and, perhaps more importantly, that Dr.
Logan's subjective intent as to the meaning of the regulation controls
public interpretation of the code. The State argues that the WAC should be
read to require only that the reference thermometers be compared in some
manner to the thermometer that NIST maintains. The administrative rule
simply does not say that. The WAC regulation -035 requires that
certification of the simulator thermometer 'shall be made by using a
reference thermometer traceable to standards maintained by the National
Institute of Standards and {Technology} (NIST).' The definitions NIST has
promulgated are clear and unambiguous . . . and the testimony of the
witnesses in this case agrees that NIST has only one definition of
'traceable to standards.' The NIST requirement is clear: an unbroken chain
of comparisons and each provided measurement must be accompanied by a
statement of uncertainties. . . .

If the citizens of the State of Washington are to have any confidence in
the breath-testing program, that program has to have some credence in the
scientific community as a whole.
Ruling by District Court Panel (available as App. B to Jagla mot. for
discretionary review). We agree.
We find that in order to be admissible under WAC 448-13-040, -035, and
RCW 46.61.502, the thermometer in the breath test must be tested against a
thermometer traceable to standards maintained by NIST. To be traceable,
the uncertainties must be measured and recorded at each level. Given the
posture of the cases before us, we do not reach whether substantial
compliance would be sufficient. As the State has not established that the
uncertainties had been measured and recorded, it has not met its
foundational burden, and therefore the trial courts did not err in
excluding the tests.
2. Other Evidence
We now turn to whether the breath tests are admissible as 'other
evidence' of intoxication. We conclude that they are not.
First, like the trial courts below, we are concerned about the
potential consequences of allowing breath tests that do not conform to
properly promulgated reliability regulations as evidence of intoxication.
Second, we conclude that the legislature did intend that breath tests
conducted under the statute and regulations must comply with the statute
and regulations. See RCW 46.61.502(1)(a) ('A person is guilty . . . if the
person drives a vehicle . . . {a}nd . . . has . . . an alcohol
concentration of 0.08 or higher as shown by analysis of the person's breath
or blood made under RCW 46.61.506.') (emphasis added). RCW 46.61.506(2)
states that '{t}he foregoing provisions of this section shall not be
construed as limiting the introduction of any other competent evidence
bearing upon the question whether the person was under the influence of
intoxicating liquor or any drug.' We find it unlikely that 'any other
competent evidence' includes breath tests taken under the authority of that
very network of statutes.
Our legislature has put specific limitations on the use of breath
tests conducted pursuant to chapter 46.61 RCW and the implied consent
statute, RCW 46.20.308. See, e.g., RCW 46.61.506(3) ('Analysis of the
person's blood or breath to be considered valid under the provisions of
this section or RCW 46.61.502 or 46.61.504 shall have been performed
according to methods approved by the state toxicologist.') (Emphasis
added.) Not only must the tests comport with those regulations, by statute
they must be performed by 'an individual possessing a valid permit issued
by the state toxicologist.' Id. Washington courts have consistently
upheld these standards. E.g., Allison, 148 Wn.2d 75; Cannon v. Dep't of
Licensing, 147 Wn.2d 41, 58, 50 P.3d 627 (2002); Straka, 116 Wn.2d at 875;
Baker, 56 Wn.2d 846; State v. Watson, 51 Wn. App. 947, 756 P.2d 177 (1988).
Reasonably, these highly specific standards do not apply to 'other
evidence.'
Other statutes bolster our conclusion. Unlike the 'per se' section
and its implementing regulations, the 'other evidence' section of RCW
46.61.502 does not specifically refer to any type of blood or breath
testing. We conclude the legislature was drawing a distinction between
tests performed by the State and its agents, pursuant to statute, and other
tests, such as tests done at the instigation of the defendant or for
medical treatment. Such tests would be subject to the usual evidentiary
checks. E.g., State v. Donahue, 105 Wn. App. 67, 69, 75-76, 18 P.3d 608
(2001) (citing State v. Baity, 140 Wn.2d 1, 10, 991 P.2d 1151 (2000));
accord Louisiana v. McElroy, 89-kk-0750 (La. 12/11/89), 553 So. 2d 456, 458
(blood test conducted to diagnose and treat condition admissible as 'other
evidence' of intoxication).
These questions were touched on recently by the Court of Appeals in
Donahue. Donahue involved the admissibility of a blood test done on an
injured driver for the purposes of medical diagnosis and treatment in an
Oregon hospital following a fatal car accident in Washington. Donahue, 105
Wn. App. at 70. Not surprisingly, the Oregon hospital did not use the
standards set forth by the Washington State Toxicologist. The Court of
Appeals determined that the test was admissible as 'other evidence' of
intoxication even though it did not meet the standards laid out under
Washington law because it was not conducted under the authority of
Washington law. Donahue, 105 Wn. App. at 69, 75-76. Donahue provides
scant support for admitting nonconforming breath tests.
We hold that breath tests that do not meet the technical requirements
of chapter 46.61 RCW and state toxicology regulations are not admissible as
'any other competent evidence' of intoxication.
CONCLUSION
This court has long required the State to abide by its own rules,
especially when applied to vital privileges like driving. E.g., Allison,
148 Wn.2d 75; Cannon, 147 Wn.2d 41; Straka, 116 Wn.2d 859; Baker, 56 Wn.2d
846. In this case, the trial courts properly found that the State did not
abide by its own rules, and excluded these tests. These courts are
affirmed, and these cases are remanded for further proceedings consistent
with this opinion.

WE CONCUR:

1 The parties agree that state toxicologist meant the National Institute of
Standards and Technology, the entity established by Congress explicitly to
create a single source for measurements in this country, compatible with
international standards. See 15 U.S.C. sec.sec. 271-72; U. S. Const. art.
I, sec. 8.
2 The parties do not agree how to characterize the superior court
resolution of the writ issue. Since we decide this case on its merits, we
do not reach this issue. Jagla's motion to strike is denied.
3 The parties dispute whether the superior courts had the authority, under
the writ statute and procedural rules, to entertain these cases. We elect
to resolve this case on the merits and do not reach whether the superior
court should have entertained the writs. We also decline to address
whether the trial courts erred in excluding the breath tests on the
alternate grounds of expense, delay, and undue prejudice. On the record
before us, we do not reach whether a breath test machine may be
retroactively certified.
4 Dr. Emery also testified that additional steps should be taken when
calibrating a thermometer to ensure that the thermometer is giving a
correct reading, including measurements at different temperatures, use of a
microscope in recording the readings, ambient temperature, and relative
humidity. The parties do not argue that this has been incorporated into
the meaning of 'traceable.' Jagla CP at 93, 98-99.
5 The parties do not focus on the meaning of 'indirect.' We note that Dr.
Emery testified that the 'direct' method of measurement involves melting a
material with a known melting point under certain conditions to confirm the
calibration of the thermometer. The indirect method measures against a
thermometer that has been so calibrated, at some number of removals. Jagla
CP at 38.
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