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Court RulingsCourt's Ruling on Defendants' Motion to Suppress BAC KING COUNTY DISTRICT COURT
CITY OF BELLEVUE, COURT’S WRITTEN RULING AND ORDER ON DEFENSE MOTION TO SUPPRESS RE: UNCONSTITUTIONALITY OF RCW 46.61.506(4) & RCW 46.61.506(6) THIS MATTER HAVING COME ON FOR HEARING before the above-captioned court and the court having heard oral argument and having considered the briefs of counsel SUMMARY OF FACTS PRESENTED On October 7, 2006, Ms. Denise Anderson was stopped for alleged traffic infractions while driving a car in the City of Bellevue. After further investigation Ms Anderson was placed under arrest oh an allegation of driving under the influence of alcohol. Ms Anderson was transported to the Bellevue Police Department where she agreed to submit to a breath test. The Defense has brought this motion to suppress the results of that test. ISSUES PRESENTED STANDING CONSTITUTIONALITY - FACIAL CHALLENGE II) DO RCW 46.61.506(4) AND RCW 46.61.506(6) VIOLATE DUE PROCESS 21 AND EQUAL PROTECTION BY ESTABLISHING DIFFERENT STANDARDS FOR ADMISSIBILITY BETWEEN SIMILARLY SITUATED 22 PROPONENTS OF THE SAME EVIDENCE? ANALYSIS AS TO STANDING In the City of Bellevue’s (hereinafter “City”) Responsive Brief to Defendant’s Motion, the City argues that: “Before Anderson has standing to challenge a statute on due process and equal s protection grounds, she must demonstrate she was denied due process and establish she is a member of the class of persons denied equal protection of the 6 law” City’s Responsive Brief, Page 1, Line (NOTE: The City’s brief does not contain any line numbers and as such no line number can be properly referenced). The City further argues that: “Because Anderson has no independent test she seeks to admit, she is not affected by a law regulating such tests. Because Anderson is not affected by this statute, even finding the offending statute unconstitutional and refusing to enforce it would have no effect in her case because she has no test to offer.” City’s Responsive Brief, Page 1. In State v. Canada et. al., 90 Wn.2d 808 (1978), the Washington State Supreme Court held that “[p]ersons arrested and asked to take a Breathalyzer test are uniformly offered the opportunity to obtain their own best evidence for use at any trial resulting from the conduct leading to their arrest. They have the right to obtain an independent test of their blood alcohol content administered by a qualified person of their own choosing. . . . They are informed of this right when asked to take the test. . . . we do not believe failure to obtain an independent test could amount to a waiver of any recognized constitutional right is to due process. . . .“ Id., at 817. CONCLUSION AS TO STANDING Based on the holding in Cana4ay this court finds that the City’s argument as to the defendant’s standing lacks merit and that the defendant does in fact have standing to challenge RCW46.61.506(4) and RCW 46.61 .506(6). ANALYSIS AS TO CONSTITUTIONALITY -. FACIAL CHALLENGE Do RCW 46.61.506(4) and RCW 46.61.506(6) violate due process and equal protection by establishing different standards for admissibility between similarly situated proponents of the same evidence? The defense argues that RCW 46.61.506(4) and RCW 46.61.506(6) are unconstitutional on their face under both the Equal Protection and Due Process clauses of the Washington State and the United States Constitution, in that RCW 46.61.506(4) and RCW 46.61.506(6) create different standards for the admissibility of evidence. This issue was not addressed by the Washington State Supreme Court in City of Fircrest v. Jensen, 158 Wn.2d 384 (2006) where the appellant argued that “the act violates either the United States Constitution or the Washington Constitution by. . . (3) violating the doctrine of separation of powers and/or (4) violating due process by creating a mandatory rebuttable presumption.” Id., at 388. Applicable Law in Issue The relevant statutory and constitutional law in issue consists of the following: RCW Title 46.61.506 generally deals with information concerning the evidentiary issues surrounding scientific tests performed in cases involving persons charged with operating a motor vehicle while being under influence of intoxicating liquor or drugs. RCW Title 46.61.506(4) - Prosecution’s Standard for Admissibility RCW Title 46.61 .506t4) establishes the criteria for the admissibility of the results of scientific tests proffered by the prosecution at trial in DUI eases and is written as follows: “(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 fade 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 19 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 what weight to give to the test result.” Id., (emphasis added). RCW Title 46.61 .506(6) - Defendant’s Standard for Admissibility RCW Title 46.61.506(6) establishes the criteria for the admissibility of the results of scientific tests proffered by the defense at trial in DUI cases and is written as follows: “The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer. The test will be admissible if the person establishes the general acceptability of the testing technique or method. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer, Id., (emphasis added). Equal Protection — Washington State Constitution Article I, § 12 of the Washington State Constitution states as follows: “No law shall be passed granting to any citizen, class of citizens . . . privileges or immunities which upon the same terms shall not equally belong to all citizens.” Article I, §12, Constitution of the State of Washington Due Process — Washington State constitution Article I, §3 of the Washington State Constitution states as follows: “No person shall be deprived of life, liberty, or property, without due process of 3 law.” Article I, §3, Constitution of the State of Washington. United States constitution Article XIV, §1 of the United States Constitution states as follows: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Article XIV, § 1, Constitution of the United States of America Analysis The standard in Washington when the constitutionality of a statute is challenged is that “the statute is presumed constitutional and the burden is on the party challenging the statute to prove its unconstitutionality beyond a reasonable doubt Tunstall v. Bergeson, 141 Wn.2d 201, 220, 5 P.3d 691 (2000), Courts are generally hesitant to strike a duly enacted statute unless fully convinced that the statute violated the constitution. Id. If possible, a statute should be construed as constitutional. State v. Fam~e~, 116 Wn.2d 414,419-20, 805 P.2d 200, 812 P.2d 858 (1991).” State v. Clinkenbeard, 130 Wn. App. 552, at 13 560 (2005) (emphasis added). In order for a party to challenge a statute as being unconstitutional on its face the party “must show that there is no set of circumstances in which the statute, as currently written, can be constitutionally applied.” City of Redmond v. Moore, 151 Wn.2d 664, 669. 91 P.3d 875 (2004). Therefore, for the defense to prevail on its assertion that RCW 46.61.506(4) and RCW 46.61.506(6) is unconstitutional on its face it must prove “beyond a reasonable doubt,” State v. Clinkenbeard, 130 Wn. App. 552, (2005), that there are “no set of circumstances in which the statute, as currently written, can be constitutionally applied” City of Redmond v. Moore, 151 Wn.2d 664. The language of RCW 46.61.506(4)(a) states that a “breath test performed by any instrument APPROVED by the State Toxicologist SHALL be admissible at trial. . .” Id., (emphasis added) and mandates the admissibility of that evidence if the prosecution…produces prima facie evidence” that the test was performed in accordance with the provisions of RCW 46.61 506(4)(a)(i) through 46.61 .506(4)(a)(viii). The language of RCW 46.61.506(6) states that a “person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer. The test will be admissible if the person establishes the general acceptability of the testing technique or method.” Id. The City stipulates that the standard established by RCW 46.61.506(6) is the standard established in Frye v. United States, 54 App. D.C. 46 (D.C. Cir. 1923) which states that “expert testimony may be permitted to reach a trier of fact only when the reliability of the underlying scientific principles has been accepted by the scientific community. See United States v. Franks, 511 F. 2d 25 (6th Cir. 1975),. .. In other words, scientists in the field must make the initial determination whether an experimental principle is reliable and accurate.” State v. Canada et a!., 90 Wn.2d 808 (1978), at 813. Our State courts have expanded on Eric to include the requirement that not only must the “reliability of the underlying scientific principle [be] accepted by the scientific community.” Id., but also that “the particular machine employing the principle is so designed and constructed that the results produced by proper operation are reliable. The inquiry is as to the reliability of the machine itself. If the validity of a scientific principle is a prerequisite to its admission into evidence, then consistency requires that evidence of the ability of a machine to employ that scientific principle reliably must also precede admission of the machine’s results into evidence.” Seattle v. Peterson. 39 Wn.App 524 (1985), at 527. In this matter the defense stipulates that the scientific principle (infrared spectroscopy) employed by the breath test machines currently maintained by the Breath Test Section of the Washington State Patrol and operated by law enforcement agencies throughout the State of Washington is a scientific principle generally accepted within the scientific community and as such the scientific principle utilized by those breath test machines does pass the Frye test. However, the defense argues that the provisions of RCW 46.61.506(4) allow the City to proffer scientific evidence without having to meet the provisions of the rule established by State case law that “the particular machine employing the principle is so designed and constructed that the results produced by proper operation are reliable.” Seattle v. Peterson, 39 Wn.App 524 (1985), at 527. As such the Eric standard as articulated and expanded upon by our State courts can be collectively referenced as Frye/Peterson. In response to the defense argument the City responds that given the long established history of usage of the breath test instrument approved by the State Toxicologist in Washington State; and that given the fact that the scientific principle utilized by the breath test machine meets Eric, it follows that the City has met the Frye test and therefore the evidentiary standards established by RCW 46.61 .506(4) and RCW 46.61.506(6) are in fact the same and the statue does not violate either equal protection or due process. The defense next argues that the whether the principle utilized by the machine in use meets Eric as expanded on under Washington law is not material to the issue presented. The defense contends that under RCW 46.61.506(4)(a) the prosecution merely needs to show that the scientific evidence being proffered at trial was obtained on an instrument “APPROVED” by the State Toxicologist in accordance with the provisions of RCW 46.61.506(4)(a)(i) through 46.61.506(4)(a)(viii) While under RCW 46.61.506(6) the defense must show that the scientific evidence being proffered at trial was obtained utilizing a scientific principle that meets the Frye test and that “the particular machine is so designed and constructed that the results produced by proper operation are reliable.” Peterson, at 527, thereby creating different standards for admissibility of the same evidence between the prosecution and the defense. This different standard established by the statutory language is what the defense argues results in a violation of an individual’s equal protection and due process Constitutional rights regardless of whether the machine “APPROVED” by the State Toxicologist meets Eric and “is so designed and constructed that the results produced by proper operation are reliable,” Peterson, at 527, or not. To illustrate this point the defense presented oral argument to the court regarding a number of different possible scenarios in which the same scientific test proffered by the prosecution “SHALL” be admitted into evidence under RCW 46.61.506(4) while that same scientific evidence would not be admissible when proffered by the defense unless the defense demonstrated it met fry~/Peterson under the language of RCW 46.61.506(6). These scenarios included but were not limited to the following: (1) Defendant “A” obtains breath test approximately 15 minutes after test administered by arresting law enforcement officer on a privately owned and operated BAC Datamaster machine. To proffer those test results at trial the defendant MUST meet RCW 46.61.506(6) (Frye/Peterson) (2) Defendant “A” obtains breath test approximately 15 minutes after test administered by arresting law enforcement officer on the same BAC Datamaster machine used by that arresting officer but the test is administered by a private breath test technician. To proffer those test results at trial the defendant MUST meet RCW 46.61.506(6) (Frye/Peterson) (3) Defendant “A” obtains breath test approximately 15 minutes after test administered by arresting law enforcement officer on the same BAC Datamaster machine used by that arresting officer but the test is administered by a off duty law enforcement officer who was not the arresting officer. To proffer those test results at trial the defendant MUST meet RCW 46.61.506(6) (Frye/Peterson) and finally (4) Defendant “A” obtains breath test approximately 15 minutes after test administered by arresting law enforcement officer on the same BAC Datamaster machine used by that arresting officer AND the test is administered by that same arresting officer MUST meet RCW 46.61.506(6) (Frye/Peterson) While in the scenarios illustrated above, the defense would be required to meet the standard under RCW 46.61.506(6) (Frye/Peterson) the court finds that rules of evidence still apply and in practice the burden for admissibility by the defense under RCW 46.61.506(6) is in fact the same as the burden imposed on the State under RCW 46.61.506(4) which deals with a known source, specifically an instrument “approved” by the State Toxicologist. While RCW 46.61.506(4) does not specifically mention the fryc/Peterson standard, our state case law contains numerous cases involving instrumentation “approved” by the State Toxicologist. In a number of these cases, the State Toxicologist’s “approval” has been found to meet the Frye/Peterson standard; however, many cases conversely hold that the State Toxicologist’s “approval” has failed to meet that standard. In all of these cases the standard underlying acceptance by our courts of the State Toxicologist’s “approval” is the Frye/Peterson standard, and the Legislature continues to use the term “approved.” In Fircrest v. Jensen, 158 Wn.2d 384 (2006), at 397, the court compares breath test admissibility to DNA admissibility in relating frye/Peterson requirements to bOth methods of testing. In State v. Ford, 110 Wn.2d 827 (1988) the court recognizes the validity of the toxicologist’s approval of breath testing equipment; it notes a line of cases rejecting challenges to the DUI statute and it concludes that the breath test machine properly utilizes and implements generally accepted scientific principles thereby satisfying Frye/Peterson. In Seattle v. Clark-Munoz, 152 Wn.2d 39 (2004) the court addressed the lack of thoroughness in the State Toxicologist’s process citing the failure of the Toxicologist to follow with his own agency’s scientific requirements in rejecting the former methodology for testing BAC thermometers, and by failing to follow these scientific requirements the State Toxicologist stamp of “approval” failed to meet Frye/Peterson and the court upheld suppression of the BAC evidence. Clearly this line of cases demonstrates that the City is held to the same burden of admissibility under RCW 46.61.506(4) as the defense is held to under RCW 46.61.506(6), the Frye/Peterson standard. CONCLUSION “{T]he burden is on the party challenging the statute to prove its unconstitutionality beyond a reasonable doubt: Tunstall v. Bergeson, 141 Wn.2d 201, 220, 5 P.3d 691 (2000). Courts are generally hesitant to strike a duly enacted statute unless fully convinced that the statute violated the constitution. Id. If possible, a statute should be construed as constitutional. State v. Farmer, 116 Wn.2d 414, 419-20, 805 P.2d 200, 812 P.2d 858 (1991).” State v. Clinkenbeard, 130 Wn. App. 552, at 560 (2005) (emphasis added). When the Legislature enacted RCW 46.61.506(4), and RCW 46.61.506(6) it did not create different standards for admissibility between similarly situated proponents of the same evidence, and therefore in adopting the statute the Legislature did not deny the defendant equal protection under law, in violation of Article I, §12, Constitution of the State of Washington, and Article XIV, § 1, of the Constitution United States of America. Also, by adopting the foundational standards for evidence under RCW 46.61.506(4), and RCW 46.61.506(6) the Legislature did not create different standards for admissibility between similarly situated proponents of the same evidence and therefore the Legislature did not deny the defendant due process of law in violation of Article I, §3, of the Constitution of the State of Washington, and Article XIV, § 1, of the Constitution United States of America. In conclusion the court is not “filly convinced that the statute violated the constitution.” Tunstall v. Bergeson, 141 Wn.2d 201, 220, (2000) and therefore RCW 46.61.506(4), and RCW 46.6 1.506(6) “should be construed as constitutional. State v. Farmer, 116 Wn.2d 414, 419-20, 805 P.2d 200, 812 P.2d 858 (1991).” State v. Clinkenbeard, 130 Wn. App. 552, at 560 (2005). Therefore, the court finds that the defense has failed to meet its provisions of RCW 46.61.506(4) and RCW 46.61.506(6), as unconstitutional “beyond a reasonable doubt Tunstall v. Bergeson, P.3d 691 (2000)” State v. Clinkenbeard, 130 Wn. App. 552, at 560 Dated this 11 day of June, 2007 Judge Frank V. LaSalata ORDER Based on the Court’s analysis and findings presented above, IT IS HEREBY ORDERED ADJUDGED AND DECREED that the defendant’s Motion to Suppress the BAC test results is DENIED. Dated this 11 day of June, 2007 Judge Frank V. LaSalata |
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