City of Seattle v. Clark-Munoz
| Decision Date | 01 July 2004 |
| Docket Number | No. 74602-8, No. 74579-0, No. 74603-6. |
| Citation | 93 P.3d 141,152 Wash.2d 39 |
| Court | Washington Supreme Court |
| Parties | CITY OF SEATTLE, Petitioner, v. Wonda CLARK-MUNOZ, Respondent. City of Seattle, Petitioner, v. Gareth Hall, Respondent. State of Washington, Petitioner, v. Ted Jagla, Respondent. |
Moses Flint Garcia, Robert Fumio Murashige, City of Seattle/Public & Comm Safety Div, Seattle, for Petitioner (City of Seattle).
Mychal H. Schwartz, King Co Pros Office, Seattle, for Petitioner (State of Washington).
Christine Anne Jackson, Erick Spencer, Public Defender, for Respondent (Wonda Clark-Munoz).
Scott Richard Robbins, Hughes Robbins PS, Howard Stanton Stein, Bellevue, for Respondent (Ted Jagla).
Joshua Saul Schaer, NW Defenders Association, Seattle, for Respondent (Gareth Hall).
Timothy J. Donaldson, Walla Walla City Attorney, for Amicus Curiae (City of Walla Walla).
Charles Franklin Blackman, c/o Snohomish County Pros, Everett, for Amicus Curiae (Washington Association of Prosecuting Attorneys).
Geoffrey L. Burg, Puget Sound Plaza, Seattle, Francisco A. Duarte, Fox Bowman & Duarte PLLC, Bellevue, William Karl Kirk, Cowan Smith Law Firm, Kirkland, Ryan Boyd Robertson, Burien, for Amicus Curiae (Washington Foundation for Criminal Justice).
Joshua Saul Scher, NW Defenders Association, Seattle, Scott Richard Robbins, Hughes Robbins PS, Howard Stanton Stein, Bellevue, for Other Party (Counsel from Consolidated Case).
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.
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 ().
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.
The meaning of these statutes and regulations are questions of law, to be reviewed de novo. City of Seattle v. Allison, 148 Wash.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 § 804, at 148 (2d ed.1998). We turn first to whether these tests are admissible as per se evidence.
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 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.
Allison, 148 Wash.2d at 79-80, 59 P.3d 85 (emphasis added) (citing Baker, 56 Wash.2d at 852, 355 P.2d 806 and State v. Straka, 116 Wash.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 () (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 Wash.2d 445, 454, 38 P.3d 1010 (2002)
. A regulation need not be ambiguous for us to consider technical definitions. Id. at 452, 38 P.3d 1010.
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 http:// ts.nist.gov/traceability/nist % 20traceability% 20 policy-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...
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