In re Gleason, Bankruptcy No. 90-33642
| Decision Date | 30 March 1992 |
| Docket Number | Adv. No. 91-30182.,Bankruptcy No. 90-33642 |
| Citation | 139 BR 249 |
| Court | U.S. Bankruptcy Court — Western District of Washington |
| Parties | In re John F. GLEASON, a single man, Debtor. FARMERS INSURANCE COMPANY, Plaintiff, v. John F. GLEASON, Defendant. |
Stanley J. Rumbaugh, Rumbaugh & Rideout, Tacoma, Wash., for plaintiff.
Noel P. Shillito, Shillito & Giske, Tacoma, Wash.
DECISION
Debtor John F. Gleason, Jr. filed for relief under Chapter 7 of the Bankruptcy Code1 on 3 October 1990.
Farmers Insurance Company filed a Complaint alleging that it had paid insurance claims in the amount of $66,075.78 resulting from Gleason's car collision with one Mary Jo McAllister on 16 June 1989, seeking a determination that Gleason's debt to it is nondischargeable under § 523(a)(9).
The Complaint was filed 14 January 1991, and a Summons and Notice of Pre-Trial Conference issued 15 January 1991. Gleason verified his Answer, filed on 12 April 1991, denying the material allegations of the Complaint, and asserting affirmative defenses, including "insufficient service of process." On 22 May 1991, Gleason filed his Motion to Dismiss under Fed. R.Bankr.P. 7004(a) and Fed.R.Civ.P. 4(c)(2)(A), asserting that Farmers had never served the Summons or Complaint on Gleason, and that the 120 day period for doing so had expired.
The motion was argued at the beginning of trial, and I denied it, finding (marginal) good cause in Farmers' counsel's reliance upon the stamped certificate of mailing stamped on the Summons and Notice, dated "1-15-91", and signed by a deputy clerk. The Notice is addressed "To the above named defendant:". Additionally, since the case could apparently be refiled if dismissed, the interests of economy, both for the parties and the Court, were served by denying the motion.
In his opening statement, counsel withdrew Farmers' Request for Entry of Judgment, submitting that the sole issue for determination was whether Gleason was intoxicated under the laws of the State of Washington at the time of the accident. Only the issue of nondischargeability was tried.
For its proof, Farmers submitted an affidavit of counsel, admitted by stipulation, which included a copy of the docket in State of Washington v. John F. Gleason, Jr., No. 891615 in Pierce County District Court No. 2, Gig Harbor, Washington. That docket reflects that Mr. Gleason was charged with driving while intoxicated under RCW 46.61.502 on 16 June 1989, and that on 15 August 1989, the Court approved a plea agreement whereby, if Mr. Gleason complied with various conditions including participation in an alcohol program and having no moving violations or alcohol-related offenses for a year, the charge would be reduced to negligent driving, and Gleason would enter a plea of guilty. The docket contains reports of compliance with the alcohol counseling requirement, but does not indicate compliance with the other conditions, or that charge has actually been reduced and pleaded to.
Farmers' only witness was Michael J. O'Connor, a Trooper with the Washington State Patrol. At 10:49 a.m. on 16 June 1989, Trooper O'Connor responded to a radio call and arrived at the site of a two-car accident on the Elgin-Clifford Road, approximately three miles outside of Purdy, Washington. Personnel from Pierce County Fire District 16, including Emergency Medical Technicians, were already on the scene. Three individuals had apparently been involved in the accident: two who were seated in a vehicle, and the third, Gleason, was lying on the ground next to that vehicle. Trooper O'Connor testified that Gleason was uncooperative, declining to give his name, and that he identified Gleason by means of his driver's license and the fact that the other vehicle, the keys to which were in Gleason's pocket, was registered to him. Trooper O'Connor also smelled a strong odor of alcohol on Gleason's breath. In response to an inquiry about seatbelts, Gleason gestured, indicating a shoulder belt over his left shoulder, and stated "he said he didn't see my blinkers." Because Gleason was being treated by the EMTs, and about to be taken by ambulance to Tacoma General Hospital, Trooper O'Connor did not administer any field sobriety tests. Before Gleason was taken to the hospital, Trooper O'Connor advised him that he was under arrest for driving while intoxicated.
Trooper O'Connor completed his investigation at the scene, interviewing the occupants of the other vehicle, and arrived at the hospital at approximately 12:30. He saw Gleason in the Emergency Room, where he advised Gleason of his Miranda rights. Gleason wanted counsel and contacted his attorney via telephone. Gleason spoke to his attorney for approximately eight minutes, after which he gave the Trooper the telephone. Gleason's counsel advised Trooper O'Connor that he had told his client to submit to a breath test, but not to take field sobriety tests or answer any "non-informational" questions. When Gleason was released by the hospital, Trooper O'Connor transported Gleason to Pierce County Jail, where he administered a breath test on the BAC Verifier DataMaster, obtaining readings of .07 at 2:12 p.m. and .08 at 2:14 p.m. (roughly three hours and forty-five minutes after the accident). Trooper O'Connor then issued the citation to Mr. Gleason. The Trooper's card certifying his training as an operator on that machine was admitted, as was, over objection, the DataMaster "ticket" showing the results.
On cross examination, Trooper O'Connor acknowledged that he was not trained to maintain or certify the accuracy of the DataMaster or its solutions, that he had not observed Gleason driving, and that Gleason had denied driving.
Plaintiff and Defendant both rested.
A. Standard of Proof: Gleason concedes the evidence is to be measured by a preponderance standard.
B. Washington's DWI statute: RCW 46.61.502 provides:
The Washington Supreme Court, in State v. Brayman, 110 Wash.2d 183, 751 P.2d 294 (1988), upheld the constitutionality of this multi-pronged definition of driving while intoxicated, and its statutory presumptions.
RCW 46.61.506 provides, in pertinent part:
(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.
In prosecutions for driving while...
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