Ludvigsen v. City of Seattle, No. 79974-1.

CourtUnited States State Supreme Court of Washington
Writing for the CourtChambers
Citation174 P.3d 43,162 Wash.2d 660
PartiesMark LUDVIGSEN, Petitioner, v. CITY OF SEATTLE, Respondent.
Decision Date20 December 2007
Docket NumberNo. 79974-1.
174 P.3d 43
162 Wash.2d 660
Mark LUDVIGSEN, Petitioner,
v.
CITY OF SEATTLE, Respondent.
No. 79974-1.
Supreme Court of Washington, En Banc.
Argued June 12, 2007.
Decided December 20, 2007.

[174 P.3d 44]

Elizabeth Anne Padula, Padula & Associates LLC, Theodore Wayne Vosk, Law Offices of Vosk & Velasquez, Bellevue, WA, for Petitioner.

Moses Flint Garcia, Stafford Frey Cooper, Seattle, WA, for Respondent.

CHAMBERS, J.


¶ 1 In 2002, Mark Ludvigsen was arrested on suspicion of driving while intoxicated. At that time, if the city of Seattle (City) wanted to convict Ludvigsen under the "per se" prong of its former driving while intoxicated ordinance,1 it had to prove Ludvigsen failed a valid breath test. The breath testing machine compares the amount of alcohol vapor in a known sample with the alcohol vapor in a breath sample at a known temperature. In 2002, to establish that the test was valid, the government had to prove that the test machine's thermometer had been certified by a thermometer traceable to National Institute of Standards and Testing (NIST) standards.2 Because of a 2004 amendment, the government no longer obligates itself to prove that the test thermometer is certified.3 With respect to the per se prong of the driving under the influence (DUI) statute, RCW 46.61.502, the change is more than a mere change in what evidence the jury will or will not hear; it reduces the quantum of evidence necessary to establish a prima facie case that overcomes the presumption of innocence. We hold retroactive application of the amendment violates the ex post facto clause of the U.S. CONST. art. I, § 10, and reverse.

I

¶ 2 Ludvigsen submitted to a breath test on February 5, 2002. He registered a 0.23 reading on the breath test and was charged

174 P.3d 45

with driving while intoxicated (DWI) under former Seattle Municipal Code (SMC) 11.56.020 (2002).4 However, Ludvigsen did not go to trial in 2002. Ludvigsen skipped his arraignment and did not come to trial until 2005. By the time of the evidentiary hearing to determine the admissibility of the breath test, the relevant portions of the SMC and the WAC had changed. The changes were likely precipitated by this court's decision in City of Seattle v. Clark-Munoz, 152 Wash.2d 39, 93 P.3d 141 (2004).

¶ 3 In Clark-Munoz, we considered the admissibility of breath tests used in Washington. In Washington, the state toxicologist promulgates standards for determining the known temperature of an alcohol vapor sample and, at the time of the Clark-Munoz decision, those standards required that the thermometer used in the breath test be certified by using a reference thermometer traceable to standards maintained by the NIST. See former WAC 448-13-035 (1991). In the Clark-Munoz cases, the State had not established at trial that the breath testing machines used on the defendants were tested on thermometers traceable to standards maintained by NIST and therefore could not establish that the thermometers were properly certified under former WAC 448-13-035. Clark-Munoz, 152 Wash.2d at 48, 93 P.3d 141. Holding that the State must abide by its own rules, especially when applied to vital privileges like driving, we held the breath tests were inadmissible. Id. at 50, 93 P.3d 141.

¶ 4 Following our opinion in Clark-Munoz, the state toxicologist repealed chapter 448-13 WAC and with it the requirement that certifying thermometers comply with NIST standards. In its place is now chapter 448-16 WAC, which does not require a certifying thermometer be traceable to NIST standards.5

¶ 5 When Ludvigsen was arrested in 2002, the municipal code in effect established that a driver was guilty of a DWI if "the person has . . . an alcohol concentration of 0.08 or higher, as shown by analysis of the person's breath or blood made under the provisions of this section." Former SMC 11.56.020(A)(1)(a) (2002) (emphasis added). The "provision," referenced in subsection A, was found in subsection J, titled "Methods of Analysis." It read:

Analysis of the person's blood or breath to be considered valid under the provisions of this section 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.

Former SMC 11.56.020(J) (2002). However, in 2004, paralleling what happened at the state level, former SMC 11.56.020(A)(1)(a) (2002) was changed and no longer requires that analysis of breath or blood establishing a blood alcohol level of 0.08 comply with "the provisions of this section." Instead, a blood alcohol level of 0.08 must be "shown by analysis of the person's breath or blood made under RCW 46.61.506." SMC 11.56.020(A)(1)(a).

¶ 6 The amendment to the SMC may be largely illusory. Under both the prior and amended versions, the relevant authority for purposes of breath test analysis is the WAC. The amendment to the SMC merely altered the route to the WAC. Compliance with RCW 46.61.506(3), required under the current SMC, is the same as compliance with the provisions of the municipal code, required under the 2002 SMC, to the extent both defer to the regulations promulgated by the state toxicologist. RCW 46.61.506(3) and SMC 11.56.020(J) use the same language.6

174 P.3d 46

In both cases, the "methods approved by the State Toxicologist" govern. Compare former SMC 11.56.020(A)(1)(a) (2002) with SMC 11.56.020(A)(1)(a) (2004) and RCW 46.61.506(3). Thus, the relevant change for the purposes of Ludvigsen's appeal was the state toxicologist's amendments to the WAC.

¶ 7 To summarize, in 2002, when Ludvigsen was arrested, voluntarily gave his breath sample, and was charged with DWI,7 the law required that the test machine be certified with a thermometer traceable to the NIST standards. See former WAC 448-13-035. Following our opinion in Clark-Munoz, the NIST traceability requirement was repealed. See chapter 448-16 WAC. In 2004, the law changed and a breath test that would have been invalid for lack of a test thermometer traceable to the NIST, at least from that point on, became valid under relevant statutes, regulations, and ordinances.

¶ 8 Both parties agree that Ludvigsen's 2002 breath test was substantially similar to those considered in Clark-Munoz and that "traceablity to NIST standards" could not be established. Had Ludvigsen's trial occurred in 2002, that is to say subject to the regulations in force in 2002, the breath tests should have been excluded as inadmissible for failing to comply with the WAC regulations in effect at the time. See Clark-Munoz, 152 Wash.2d at 50, 93 P.3d 141. However, Ludvigsen did not go to trial until 2005, after the statutory and administrative meaning of a valid test changed.

¶ 9 At his 2005 trial, Ludvigsen moved to suppress the results of the breath test he took in 2002. He argued the admissibility of the test was governed by former chapter 448-13 WAC, the regulation in effect at the time of his arrest and, thus, by Clark-Munoz. The preliminary and ultimately dispositive issue before the trial judge was whether the 2002 or the current law would govern the hearing. The answer, the parties argued and the judge agreed, depended on whether the amendments affected procedural or substantive law.8 The trial judge found that the amendments were substantive and not procedural and, thus, not retroactive.

¶ 10 The City appealed to the superior court. The superior court reversed, concluding that RCW 46.61.506(3) and chapter 448-16 WAC are procedural in nature and therefore are presumed to apply retroactively. Ludvigsen successfully moved for discretionary

174 P.3d 47

review, and pursuant to RAP 4.4, his case was transferred to this court.

II

¶ 11 There are two initial questions. We must decide whether the legislature intended the amendment to have retroactive effect. In re F.D. Processing, 119 Wash.2d 452, 460, 832 P.2d 1303 (1992). We must also decide whether retroactivity is even at issue. "`"A statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment . . . or upsets expectations based on prior law."'" State v. T.K., 139 Wash.2d 320, 330, 987 P.2d 63 (1999) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (quoting Republic Nat'l Bank v. United States, 506 U.S. 80, 100, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992))). A statute operates prospectively "when the precipitating event for its application occurs after the effective date of the statute." T.K., 139 Wash.2d at 329-30, 987 P.2d 63 (citing Aetna Life Ins. Co. v. Wash. Life & Disability Ins. Guar. Ass'n, 83 Wash.2d 523, 535, 520 P.2d 162 (1974)). Both of these preliminary questions turn on the intent of the legislature. Id at 329, 987 P.2d 63.

¶ 12 Ludvigsen does not challenge the superior court's statutory interpretation. Instead, Ludvigsen argues the ex post facto clause prohibits applying the 2004 amendments to a trial of his alleged 2002 crime. We presume statutes are constitutional and review challenges to them de novo. State v. Shultz, 138 Wash.2d 638, 642-43, 980 P.2d 1265 (1999) (citing State ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm., 135 Wash.2d 618, 623, 957 P.2d 691 (1998)).

¶ 13 The United States Constitution declares that "[n]o State shall . . . pass any . . . ex post facto law." U.S. CONST. art. I, § 10. The Washington State Constitution similarly declares that "[n]o . . . ex post facto law . . . shall ever be passed." CONST. art. I, § 23. These provisions employ the same framework adopted from the 1798 case of Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). See State v. Edwards, 104 Wash.2d 63, 70-71, 701 P.2d 508 (1985) (citing Calder, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648); see also State v. Handran, 113 Wash.2d 11, 14, 775 P.2d 453 (1989). The United States Supreme Court has "repeatedly endorsed" the Calder framework. Carmell v. Texas, 529 U.S. 513,...

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20 practice notes
  • In re Carrier, No. 83377–0.
    • United States
    • United States State Supreme Court of Washington
    • 23 Febrero 2012
    ...applies prospectively if the precipitating event under the statute occurred after the date of enactment. City of Seattle v. Ludvigsen, 162 Wash.2d 660, 668, 174 P.3d 43 (2007) (quoting State v. T.K., 139 Wash.2d 320, 329–30, 987 P.2d 63 (1999), superseded by statute, Laws of 2001, ch. 49, §......
  • State v. Villela, No. 96183-2
    • United States
    • United States State Supreme Court of Washington
    • 17 Octubre 2019
    ...challenges to them de novo.’ " State v. Lanciloti , 165 Wash.2d 661, 667, 201 P.3d 323 (2009) (quoting City of Seattle v. Ludvigsen , 162 Wash.2d 660, 668, 174 P.3d 43 (2007) ). As the challenger, Villela bears the burden of establishing that the statutorily mandated seizure of his vehicle ......
  • State Dep't of Soc. & Health Servs. v. Luak (In re Dependency of MSR), No. 85729–6.
    • United States
    • United States State Supreme Court of Washington
    • 1 Marzo 2012
    ...the burden of showing otherwise. State v. Lanciloti, 165 Wash.2d 661, 667, 201 P.3d 323 (2009) (citing Ludvigsen v. City of Seattle, 162 Wash.2d 660, 668, 174 P.3d 43 (2007); Heinsma v. City of Vancouver, 144 Wash.2d 556, 561, 29 P.3d 709 (2001)). ¶ 16 This court recognized long ago that pa......
  • State v. Bass, No. 80156-2-I
    • United States
    • Court of Appeals of Washington
    • 1 Junio 2021
    ...constitutional prohibition against ex post facto laws is a question we review de novo. Ludvigsen v. City of Seattle, 162 Wn.2d 660, 668, 174 P.3d 43 (2007). "A statute is presumed constitutional and the party challenging it has the burden to prove beyond a reasonable doubt that the statute ......
  • Request a trial to view additional results
20 cases
  • In re Carrier, No. 83377–0.
    • United States
    • United States State Supreme Court of Washington
    • 23 Febrero 2012
    ...applies prospectively if the precipitating event under the statute occurred after the date of enactment. City of Seattle v. Ludvigsen, 162 Wash.2d 660, 668, 174 P.3d 43 (2007) (quoting State v. T.K., 139 Wash.2d 320, 329–30, 987 P.2d 63 (1999), superseded by statute, Laws of 2001, ch. 49, §......
  • State v. Villela, No. 96183-2
    • United States
    • United States State Supreme Court of Washington
    • 17 Octubre 2019
    ...challenges to them de novo.’ " State v. Lanciloti , 165 Wash.2d 661, 667, 201 P.3d 323 (2009) (quoting City of Seattle v. Ludvigsen , 162 Wash.2d 660, 668, 174 P.3d 43 (2007) ). As the challenger, Villela bears the burden of establishing that the statutorily mandated seizure of his vehicle ......
  • State Dep't of Soc. & Health Servs. v. Luak (In re Dependency of MSR), No. 85729–6.
    • United States
    • United States State Supreme Court of Washington
    • 1 Marzo 2012
    ...the burden of showing otherwise. State v. Lanciloti, 165 Wash.2d 661, 667, 201 P.3d 323 (2009) (citing Ludvigsen v. City of Seattle, 162 Wash.2d 660, 668, 174 P.3d 43 (2007); Heinsma v. City of Vancouver, 144 Wash.2d 556, 561, 29 P.3d 709 (2001)). ¶ 16 This court recognized long ago that pa......
  • State v. Bass, No. 80156-2-I
    • United States
    • Court of Appeals of Washington
    • 1 Junio 2021
    ...constitutional prohibition against ex post facto laws is a question we review de novo. Ludvigsen v. City of Seattle, 162 Wn.2d 660, 668, 174 P.3d 43 (2007). "A statute is presumed constitutional and the party challenging it has the burden to prove beyond a reasonable doubt that the statute ......
  • Request a trial to view additional results

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