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Court RulingsDefense's Challenge Under RCW 46.61.506(3) to Admission of Breathe Test
) CITY OF SEATTLE, ) No. 462143 Plaintiff, ) ) DECISION RE: DEF’S vs. ) CHALLENGE UNDER ) RCW 46.61.506(3) TO ) ADMISSION OF THE ELIZABETH M. ALBERT, ) BREATH TEST Defendant. ) ____________________________________) Defendant Elizabeth M. Albert moves the Court to suppress the breath test results on the basis that the City cannot establish the test was conducted in accordance with RCW 46.61.506(4)(a). More specifically, defendant contends that before admitting the test the court must consider whether the test was “performed according to the methods approved by the state toxicologist” as required under RCW 46.61.506(3). Defendant argues that the methods were not followed and that the City cannot establish the thermometer used in the machine was properly certified as required under the protocols approved by the state toxicologist. Consequently, the City cannot satisfy on a prima facie basis the foundational requirements of RCW 46.61.506(4(a)(iv) and (vii). The City argues that the court should only consider the requirements of 506(4)(a) in determining if the breath test is admissible. In its offer of proof, the City established it will present testimony that the thermometer used in defendant’s test was approved by the state toxicologist as required under 506(4)(a)(iv) and that the simulator external standard was in compliance with 506(4)(a)(vii). As a result, the City contends, it has met the prima facie showing, and the court should only consider whether defendant’s argument regarding traceability should go before the jury. 1. Is the court required to consider RCW 46.61.506(3) in addition to 506(4)(a) before admitting the breath test results? The first question the court must address is how RCW 46.61.506 sections (3) and (4) relate to each other. RCW 46.61.506(3) reads as follows: (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 and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist. (emphasis added). RCW 46.61.503(4)(a) reads as follows: (4)(a) A breath test performed by any instrument approved by the state toxicologist shall be admissible at trial or in an administrative proceeding if the prosecution or department produces prima facie evidence of the following: All language within a statute must be given effect so that no portion is rendered meaningless or superfluous. Mortell v. State, 118 Wash. App. 846, 849, 78 P. 3d 197 (2003). Related statutory provisions must be harmonized to effectuate a consistent statutory scheme that maintains the integrity of the respective statutes. Id. Consequently, different provisions of the same statute “will be read as complementary, instead of in conflict with each other.” State v. Chapman, 140 Wash.2d 436, 448, 998 P.2d 282, cert. denied,531 U.S. 984, 121 S.Ct. 438, 148 L.Ed.2d 444 (2000). The court applies 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.” City of Seattle v. Clark-Munoz, 152 Wash 2d 39, 44, 93 P. 3d 141 (2004). Breath test results are admissible as per se evidence of intoxication only if they meet the explicit requirements of RCW 46.61. Clark-Munoz, 152 Wash 2d at 44. 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, (citing, Seattle v. Allison, 148 Wash 2d, 79-80 (emphasis added), Baker, 56 Wash 2d at 852, and State v. Straka, 116 Wash 2d 859, 875, 810 P. 2d 888 (1991). Moreover, … the Legislature has mandated that the analysis of breath or blood is valid if it is “according to the methods approved by the state toxicologist.” When the protocols… and existing Code provisions are followed, there is sufficient assurance of accuracy and reliability of the test results to allow for the general admissibility of the test results. Seattle v. Allison, 148 Wash 2d 75, 80, 59 P. 3 85 (2002) (emphasis added). The City argues these requirements, long established by case law and most recently reiterated in Clark-Munoz, are no longer a prerequisite to admission of the breath test. The City maintains that following Clark-Munoz the legislature retracted WAC chapter 448-13 in its entirety, placed the prima facie elements in the legislation itself, and therefore changed the statutory scheme sufficiently to effectively make the case law’s interpretation of RCW 46.61.506(3) and Clark-Munoz moot. Consequently, the breath test comes in once the City establishes on a prima facie basis the 8 factors listed under RCW 46.61.506(4)(a). Defense counters that the case law remains valid because it addresses broader issues of due process. In addition, defense contends that nothing in the new statutory scheme replaces the common law requirements of State v. Baker and its line of cases requiring proper working order of the breath test and properly concocted chemicals. While it is correct that Clark-Munoz was determined in light of WAC 448-13-040 and 035, and that these sections no longer exist, RCW 46.61.506(3) remains unchanged. In rewriting RCW 46.61.506 (4)(a), the legislature placed into the statute the factors for admissibility previously listed in WAC chapter 448-13, and replaced the entire chapter with the new WAC 448-16. However, neither change has altered the language or the impact of RCW 46.61.506(3). If the City’s argument were correct, then the breath test would be admissible regardless of how the 8 factors of RCW 46.61.506(4)(a) were achieved. In other words, the test could be accomplished using procedures not approved by the state toxicologist and still be deemed admissible under 506(4)(a) even though it would not be a valid test as defined under 506(3). For example, the chemicals used in the machine might not be the ones mandated by the state toxicologist and, yet, the test would still satisfy (4)(a)(iv) if the temperature of the solution at the time of the test “measured by a thermometer approved of by the state toxicologist was thirty-four degrees centigrade plus or minus 0.3 degrees centigrade.” It would be an “absurd result” if the court allowed admissibility under such a circumstance where the test was invalid under 506(3) but was admissible pursuant to 506(4)(a). Clark-Munoz, 152 Wash 2d at 44. Moreover, allowing admissibility would violate rules of statutory construction because it would necessitate ignoring 506(3). Id. The court must read 506(3) and (4)(a) “as complementary, instead of in conflict with each other.” State v. Chapman, 140 Wash.2d at 448. Applying this approach, the court finds that when defendant has raised a legitimate 506(3) challenge to the validity of the test, the only way for 506(3) to have meaning is if the state has the burden of establishing the test “was performed according to methods approved by the state toxicologist….” The City argues that in passing SB 3055 to amend RCW 46.61.506(4) the legislature clearly intended that the eight factors listed in (4)(a) be the sole factors governing admissibility. Moreover, the City points to the language in RCW 46.61.506(4)(c): Nothing in this section shall be deemed to prevent the subject of the test from challenging the reliability or accuracy of the test, the reliability or functioning of the instrument, or any maintenance procedures. Such challenges, however, shall not preclude the admissibility of the test once the prosecution or department has made a prima facie showing of the requirements contained in (a) of this subsection. Instead, such challenges may be considered by the trier of fact in determining what weight to give to the test result. The court recognizes the legislature’s intent to streamline the process for admissibility. However, the legislature intentionally chose not to change the language in 506(3), and the court finds the section must be considered when determining whether a breath test is valid and therefore admissible. 2. Was the breath test in this case properly performed according to the methods approved by the state toxicologist? Defendant argues that the City cannot establish compliance with RCW 46.61.506(3) because the state toxicologist failed to follow his own internal procedures and protocols regarding the traceability of the reference thermometer. The defendant further contends that, as a result, the City cannot establish elements 506(4)(a)(iv) and (vii). 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.” Clark-Munoz, 152 Wash 2d at 42. 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 has issued Digital Reference Thermometer Certification Policy and Protocol dated 10/23/3004, which reads as follows: I. Policy
(emphasis added). Defendant argues that the only valid “traceability” standards accepted by the scientific community are those established by NIST, and that the state toxicologist continues to fail to follow NIST standards required under Clark-Munoz. Defendant further argues that the actions of the state toxicologist in this regard are “arbitrary and capricious.” The City counters that the discussion in Clark-Munoz was limited to NIST standards, and that the City can present evidence of other acceptable forms of traceability. Given this divergence in opinions regarding what “traceability” can mean, and the lack of case law on this issue, this court will need to hear expert testimony from both parties to determine if defendant has a legitimate challenge. 3. Conclusion. Having determined that RCW 46.61.506(3) must be considered in addition to RCW 46.61.506(4)(a) before the breath test can be deemed valid and therefore admissible into evidence, the court will hear testimony on whether the procedures approved by the state toxicologist were followed in this case. The testimony should be designed to help the court rule on 1) whether defendant has a legitimate 506(3) challenge regarding “traceability” and the approval of the thermometer; 2) if so, whether the City can make its prima facie showing, and 3) if it can, whether defendant’s challenge should be presented to the jury. DATED this 5th day of July 2005. ____________________________________ Judge Pro-tem Adam Eisenberg |
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