Court Rulings

Honorable Michael Lambo's ruling of SHB 3055

Kirkland Municipal Court, State of Washington

CITY OF KIRKLAND,        )
                                        ) NO. 24663
Plaintiff,                            )
                                         ) COURT’S DECISION
                                         ) SHB3055 DUI MOTION

MICHAEL ANDERSON.      )
                                          )
Defendant.                        )
____________________

Having considered the Defendant’s Suppression Motion, Memorandum of Authorities presented by attorneys John Scott Fox and Vernon A. Smith respectively, the Responsive Brief flied by the City of Kirkland, represented by their Assistant Prosecuting attorney, Matthew Knauss. and having considered the oral arguments of each counsel, including special prosecutor Mychal Schwartz, this court rules as follows:

ISSUES PRESENTED

The Defendant claims that the recently enacted SHB 3055, Laws of 2004, Ch 68, is unconstitutional on the following ground:

1) SHB 3055, the “ACT,” violates the separation of powers doctrine by mandating the admission of DUI tests without regard to ER 401 or 403.

SEPARATION OF POWERS DOCTRINE

The Defendants agree that the Legislature has the power to enact rules of evidence. State v. Sears, 4 Wn.2d 200, 215, 103 P.2d 337 (1940). Still, they assert there are limitations on the legislature’s power to enact rules of evidence, the State Supreme Court being the final arbiter of evidentiary rules. State v. Ryan, 103 Wn. 2d 165, 178, 691 P.2d 197 (1984). Nevertheless, when a statute and an existing evidentiary rule conflict, the court must determine if the law is substantive or procedural. The defendants argue that if the statute is substantive, then the statue would prevail: if it is procedural, then the rule would prevail. The Defendants argue that SHB 3055 is procedural and any conflict with the evidentiary rules nullifies the statute.

The defendants also argue that SHB 3055 compromises the independence of the judiciary, questions the integrity of the judicial process and invades a unique function of the courts, namely the act as gatekeeper for the admission of evidence.

The City argues that the legislature has the authority to establish rules of evidence and those “evidentiary rules are substantive law.” State v. Pavelich, 153 Wash. 379 (1929); State it Ryan, 102 Wn.2d 165,178 (1984); State v. Long, 113 Wn.2d 266 (1989). Since the statute now before the court is substantive, it therefore takes precedence over court evidence rules. Further, that under SHB 3055, the court may still conduct a CrRLJ 3.6 hearing to determine whether evidence is admissible,

The City also reminded this court that for the past twenty years, the appellate courts have repeatedly denied defense efforts to suppress the breath test in DUI cases, based on “hyper-technical” motions concerning the accuracy of breath testing devices. Hence, the purpose of this ACT "...will reduce the delays caused by challenges to various breath test instrument components and maintenance procedures.” The City intimates that this court should follow the trend set by the appellate courts and deny the defense motion.

The offending statute, RCW 46.61.506(4), 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:
(i) The person who performed the test was authorized to perform such test by the state toxicologist;
(ii) The person being tested did not vomit or have anything to eat, drink, or smoke for at least fifteen minutes prior to administration of the test;
(iii) The person being tested did not have any foreign substances, not to include dental work, fixed or removable, in his or her mouth at the beginning of the fifteen-minute observation period;
(iv) Prior to the start of the test, the temperature of the simulator solution as measured by a thermometer approved of by the state toxicologist was thirty-four degrees centigrade plus or minus 0.3 degrees centigrade;
(v) The internal standard test resulted in the message "verified";
(vi) The two breath samples agree to within plus or minus ten percent of their mean to be determined by the method approved by the state toxicologist;
(vii) The simulator external standard result did lie between .072 to .088 inclusive:
and
(viii) All blank tests gave results of .000.

(b) For purposes of this section, “prima facie evidence” is evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved. In assessing whether there is sufficient evidence of the foundational facts, the court or administrative tribunal is to assume the truth of the prosecution’s or department’s evidence and all reasonable inferences from it in a light most favorable to the prosecution or department.

(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 the weight to give the test result. (Emphasis added)

In this case, SHB 3055 mandates the admissibility of a DUI test without regard to the test’s accuracy and by mandating the admission of evidence that the court might otherwise find prejudicial or unreliable. ER 104, 401, 402, 403. In other words, even if the court finds that the test has no probative value and perhaps would even mislead the jury, due to some technical defect in the testing procedure, the court is still required to admit the evidence.

In State v. Zwicker, 105 Wn.2d 228, 713 P.2d 1011 (1986), the court provided specific limits on the Legislature’s authority to enact substantive evidentiary rules, stating,

“This interpretation of RCW 46.61.517 requires that the language of the provision “is admissible” be read as permissive language and not mandating admissibility in all cases. This interpretation also avoids any conflict with ER 401 and ER 403. which would require invalidation of the statute. Zwicker at 238 (Emphasis added)

Similarly, in State v. Long, 113 Wn.2d 266, 778 P.2d 1027 (1989), the court upheld the “legislative determination that refusal evidence is relevant and filly admissible,” but added,

“We perceive no credible reason why the Legislative determination should not be honored by this court. While we retain our power to determine the relevancy and thus the admissibility of certain types of evidence, we perceive no valid reason not to accept the Legislature’s recognition of relevancy in this instance... This is not to say, however, that depending on the facts of the particular case, the trial court may not exclude such evidence if the probative value of such evidence is found to be substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury.” (emphasis added)

The issue before this court is not a “hyper-technical” challenge to the complex workings or design of the DataMaster. Rather, that RCW 46.61.506 (4) (c) makes admission of DUI breath tests mandatory. This compromises the independence of the judiciary and invades the judicial province by mandating admission of evidence that the court might otherwise find prejudicial, unreliable, and inaccurate. Neither this court, nor the City, when asked, could find any other statutes that mandate the admission of evidence, while at the same time precluding an ER 401/403 analysis. Accordingly, this court finds that RCW 46.61.506(4) and SHB 3055 are unconstitutional as it attempts to mandate the admission of breath test results regardless of their probative value, prejudicial effect, or whether the defendant is deprived a fair trial, in violation of ER 401 and 403.

The ACT contained neither a savings nor a severability clause. Consequently, the whole of the ACT is unconstitutional.

CONCLUSION

Defense motion to find SHB 3055 unconstitutional is granted. Defense motion to suppress the breath test results is granted.

FURTHER, pre-October 24, 2004 breath tests must comply with the relevant provisions of RCW 46.61, the protocol of WAC 448-13 et.seq and the foundational requirements of State v. Baker, 56 Wn.2d 846 (1960).

DATED this 9th day of March, 2006.

MICHAEL J. LAMBO, JUDGE