Court Rulings

Defense's Challenge Under RCW 46.61.506(3) to Admission of Breathe Test

MUNICIPAL COURT OF THE CITY OF SEATTLE
KING COUNTY, WASHINGTON

CITY OF SEATTLE, )
Plaintiff, )
) Nos: 462143
vs. ) 464556
)
ELIZABETH M. ALBERT, )
Defendant. )
____________________________________)
CITY OF SEATTLE, )
Plaintiff, ) FINDINGS OF FACT AND
) CONCLUSIONS OF LAW
vs. ) RE: CHALLENGE TO THE
) CERTIFICATION OF THE
) DIGITAL REFERENCE
JOSEPH P. GOWAN, ) THERMOMETER
Defendant. )
____________________________________)

The Court has ruled RCW 46.61.506(3) requires, as a matter of foundation, that the breath tests performed in each case were “performed according to the methods approved by the state toxicologist.” Given this holding, the Court now considers whether the state toxicologist has complied with his protocols and procedures for establishing that the Digital Reference Thermometer was properly certified, and whether or not his actions were “arbitrary and capricious.”

I. FINDINGS OF FACT.
On November 2, 2004, defendant Albert was arrested for driving under the influence of alcohol (“DUI”). On December 4, 2004, defendant Gowan was arrested for DUI. At the time of their arrests both defendants provided breath alcohol content (“BAC”) test samples on a state approved Data Master machine. Both defendants were subsequently charged with DUI under the per se and affected prongs pursuant to Seattle Municipal Code 11.56.020. SMC 11.56.020 mirrors the language of Revised Code of Washington (“RCW”) section 46.61.506.

One critical component of the Data Master machines used in Washington is a mercury in glass (“MIG”) thermometer that measures the temperature of the simulator solution used in the machine. Testimony of Sgt. Rod Gullberg. The simulator solution must be at the proper temperature within a given variance in order for the machine to properly measure the alcohol content in a subject’s breath. To ensure the MIG is working properly, it is tested on a routine basis against a digital reference thermometer (“DRT”). This check is part of the state patrol’s quality assurance program (“QAP”) designed to ensure the accuracy of breath tests taken in the state of Washington. If the DRTs are not functioning properly, the goal of the QAP may be compromised and the BAC results may not be reliable.
To ensure the DRT is working properly, Washington State Toxicologist Dr. Barry Logan has approved a policy and procedure requiring the DRTs be certified “regarding their accuracy and traceability at least once per calendar year.” Testimony of Dr. Barry Logan and Sgt. Gullberg. The procedure requires the DRTs be sent to ICL Calibration Laboratories (“ICL”) for certification. Defense Exhibit 5. The Breath Test Section is required to maintain the ICL certification as part of its business records. Both DRTs relevant to the defendants' breath tests were certified pursuant to this procedure. Prosecutor’s Exhibits No. 4. and No. 6.
During the motion hearing, the City presented three witnesses: Dr. Samuel Chappell, an expert in metrology; Washington State Toxicologist Dr. Barry Logan, and Sergeant Rod Gullberg, Supervisor of the Washington State Patrol Breath Test Section.
Dr. Chappell testified that he worked as a bench physicist for the National Institute of Standards and Technology (“NIST”) and its predecessor agency for 38 years. Testimony of Dr. Chappell. He stated that he was familiar with NIST standards, and was involved in drafting many of the standards. He also participated in writing national and international standards for glass and liquid thermometers. The Court found Dr. Chappell qualified as an expert in metrology without objection.

Dr. Chappell reviewed the policy and procedure for digital reference thermometers approved by the state toxicologist, and concluded that they are scientifically valid. He agreed with defendants’ definition of “traceability,” and agreed that traceability relates to measurements and not to a given instrument. Dr. Chappell further agreed that NIST standards would require the DRTs to be checked before being sent to ICL and after they have been received back from the lab. Both the before and post-certification checks require the DRTs be measured for “appropriate values and corresponding uncertainties.” However, Dr. Chappell stated that WSP Breath Test Section was not qualified to do such checks because it is not a calibration laboratory like ICL. Dr. Chappell stated the NIST standards are not mandatory. He maintained that the Breath Test Section procedures were scientifically valid and sufficient to ensure the digital reference thermometers were in proper working order.

Both Dr. Logan and Sgt. Gullberg testified to the changes made in the law and in the procedures used at the Breath Test Section following the ruling in City of Seattle v. Clark-Munoz, 152 Wash 2d 39, 44, 93 P. 3d 141 (2004). Dr. Logan stated that when he rewrote the policy and protocol for the DRT, he did not intend to create a requirement of traceability to the mercury in glass thermometers. Testimony of Dr. Logan. He discovered during the Clark-Munoz litigation, the procedures the Breath Test Section was using could not legitimately establish traceability for the mercury in glass thermometers. Dr. Logan stated that his protocol requires traceability at the point of certification from the ICL laboratories and at the point where the DRTs left the ICL facility.

Sgt. Gullberg acknowledged that the purpose of traceability was to avoid arbitrary results. Testimony of Sgt. Gullberg. He stated that the Breath Test Section does not follow the NIST guidelines for traceability through calibration. Instead, the Breath Test Section maintains a chart of measures comparing the DRT to MIG thermometers out in the field. This chart provides data gathered over a period of 2 to 3 years. Sgt. Gullberg said that by maintaining such a chart over time, the Breath Test Section is able to determine the accuracy of the DRT. Sgt. Gullberg stated that under this procedure there could be a variance in the accuracy of breath test results of at most .06.

Defendants presented one witness: Dr. Ashley Emery, a professor of engineering at the University of Washington. Testimony of Dr. Emery. The Court found Dr. Emery qualified as an expert in engineering and metrology without objection. Dr. Emery testified that the NIST standards on traceability are globally accepted, and that in order for measurements to be traceable, a lab receiving the certified thermometer back from ICL must do several tests upon receipt to ensure the thermometer was not damaged in route or is otherwise in proper working order. The Breath Test Section does not follow these guidelines. Dr. Emery stated that the guidelines could be satisfied by simply placing the DRTs in an ice bath upon receipt and, making certain they read 0 degrees three different times. Dr. Emery stated Dr. Logan could have used a different term of art like “verification” or “calibration,” but that by using “traceability” Dr. Logan created an expectation of a procedure he never intended to follow. Dr. Emery said that the procedures used by the state toxicology lab were useless for insuring traceability and, therefore, a useless part of the quality assurance program.
Dr. Emery was not familiar with breath test machines and could not issue an opinion as to whether or not the results of a BAC Data Master test would be affected by not following NIST standards on traceability of the reference thermometer.

II. CONCLUSIONS OF LAW.

1. Was the breath test in this case properly performed according to the methods approved by the state toxicologist?

Breath test results are admissible as per se evidence of intoxication only if they meet the explicit requirements of RCW 46.61. City of Seattle v. Clark-Munoz, 152 Wash 2d 39, 44, 93 P. 3d 141 (2004). In order to determine if the requirements of RCW 46.61 have been met, the court looks at RCW 46.61.506(3) and State v. Baker, 56 Wash 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.

Clark-Munoz, 152 Wash 2d at 44-5.
In Clark-Munoz, the defense challenge was based on WAC 448-13-035 and its requirement that the thermometers used in the simulators be certified using “a reference thermometer traceable to standards maintained by the National Institute of Standards and Testing (NIST), or its successor.”
The question before us 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 the 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.

Id. at 45. While the state toxicologist knew the term “traceability” was a term of art, he did not intend to incorporate the specific NIST requirements and in fact did not follow them. Id. at 46-7. The Court concluded that the state was unable to meet its foundational burden because the state could not show in order for the breath results to be admissible the thermometer in the breath test must be tested against a thermometer traceable to standards maintained by NIST. Id. at 48.

WAC 448-13-035 no longer exists, and has been replaced generally by WAC 448-16-070 authorizing the creation of policies and protocols. In accordance with this WAC, the state toxicologist issued Digital Reference Thermometer Certification Policy and Protocol dated 10/23/3004, which reads as follows:
I. Policy
A. All digital thermometers are to be certified regarding their accuracy and traceability at least once per calendar year.

B. Digital reference thermometers found to be acceptably accurate according to the following protocol are deemed to have been correct during the previous year and capable of providing accurate temperature measurements for another calendar year.

II. Protocol

A. Digital reference thermometers are to be submitted to ICL Calibration Laboratories, Stuart, Florida [sic] for certification of accuracy and traceability.

B. Records received from ICL Calibration Laboratories shall indicate that the digital reference thermometer was certified successfully.

C. Records received from ICL Calibration Laboratories are to be maintained as part of the Breath Test Section’s regular business records.

Defense Exhibit 5. While the term “traceability” is in the new protocol, the reference to NIST has been removed.

Rules of statutory construction apply to administrative rules and regulations, and if a rule’s meaning is plain the court must give effect to that plain meaning. Seattle v. Allison, 148 Wash 2d, 75, 81, 59 P. 3d 85 (2002). A term in a regulation should be read within the context of the regulatory and statutory scheme as a whole and should not be read in isolation. Id. The court should not construe a regulation in a manner that is strained or leads to absurd results. Id.

The City argues that the toxicologist has complied with the protocol because the DRT has been certified as accurate and traceable. Put another way, the City argues that the certification by ICL is sufficient to establish foundationally that the DRT was properly traceable as required by the protocol.

Defendants argues that in order to fulfill the scientific understanding of traceability, the toxicologist needed to follow all the requirements under NIST. The most significant requirements for this inquiry are testing the DRT when it was received back from ICL, measuring the uncertainties, and recording these measurements. Defense Exhibit No. 2, pg. 26. Under NIST, these steps need to be taken before the DRT is used to test the MIG thermometers used out in the field on the Data Master machines. Testimony of Dr. Ashley Emery.

The testimony establishes that the state toxicologist and his subordinates do not follow these steps, and do not measure the uncertainties when the DRTs return from ICL. Testimony of Dr. Logan. However, Dr. Logan testified that he intended to establish NIST traceability for the measurements when the DRTs are at ICL only as reflected by the certification by ICL.

City expert Dr. Chappell testified that no state, national or international law or agreement require NIST standards be applied in the use of breath alcohol testing. Testimony of Dr. Chappell. Dr. Chappell stated that the procedures followed by the Breath Test Section are scientifically valid to ensure the DRTs are accurate. In addition, while Dr. Emery disagreed with Breath Test Section procedures, he offered no opinion regarding how the failure to follow NIST standards might affect the BAC results.

Applying a “plain meaning” to the words of the statue, the Court finds that the City has met its burden on a foundational basis to show that the language of the protocol was followed. Seattle v. Allison, 148 Wash 2d at 81. The Washington State Patrol Breath Test Section did send the relevant DRTs out for certification from ICL as required under the protocol. ICL did provide a certification of traceability and accuracy, and the Breath Test Section maintains those certificates as part of its business records. Consequently, defendants’ motion to suppress the BAC results is denied.

2. Did the State Toxicologist act in an arbitrary and capricious manner when he formulated the protocol and procedures for DRTs?

Arbitrary and capricious action has been defined as willful and unreasoning action, without consideration and in disregard of facts and circumstances. State v. Rowe, 93 Wash 2d 277, 284, 609 P. 2d 1348 (1980). An error in judgment is not arbitrary and capricious, and a judicial conclusion that the administrative decision was erroneous is not sufficient. State v. Ford, 110 Wash 2d 827, 830, 755 P. 2d 806 (1988). That the toxicologist might have used a methodology more precise or might have used a different procedure of evaluation reflects upon his administrative judgment, but does not make his action arbitrary and capricious. Ford, 110 Wash 2d at 832. Where there is room for two opinions, action is not arbitrary and capricious even though one may believe an erroneous conclusion has been reached. Rowe, 93 Wash 2d at 284.

Defendants argue that the state toxicologist was arbitrary and capricious when he put in place a protocol that uses the term “traceability” but does not comply with the NIST standard for what traceability means.

Dr. Chappell testified that the NIST standards are not mandatory, and that the steps taken by the Breath Test Section are scientifically valid and sufficient. Dr. Emery disagreed. Since there are differing opinions on this issue, the Court cannot find the state toxicologist’s actions were arbitrary and capricious. Rowe, 93 Wash 2d at 284. As a result, defendants’ motion to suppress the BAC results is denied.

DATED this 20th day of October 2005.

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Judge Jean Rietschel

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Judge Pro-tem Adam Eisenberg