State v. Brayman

• Decision Date: 03 March 1988
• Docket Number: No. 53940-5,53940-5
• Citation: 751 P.2d 294,110 Wn.2d 183
• Parties: STATE of Washington, Petitioner, v. Robert A. BRAYMAN, Ronald J. Carlson, Frank Farmer, Susan M. Kraemer, Wilma M. Marquez, Brett A. Smith, Leland Shepardson, Deborah Crouse, and William Johnson, Respondents.
• Court: Washington Supreme Court

Page 183

110 Wn.2d 183

751 P.2d 294

STATE of Washington, Petitioner, v. Robert A. BRAYMAN, Ronald J. Carlson, Frank Farmer, Susan M Kraemer, Wilma M. Marquez, Brett A. Smith, Leland Shepardson, Deborah Crouse, and William Johnson, Respondents.

No. 53940-5.

Supreme Court of Washington En Banc.

March 3, 1988.

Norman K. Maleng, King County Prosecutor, Carol Spoor, Susan J. Noonan, Jeffrey H. Smith, Deputy Pros. Attys., Seattle, for petitioner.

Public Defender Ass'n, Helen Halpert, Patrick Long, Seattle, for respondents.

BRACHTENBACH, Justice.

This case involves the Legislature's 1986 amendments to three statutes involving driving while under the influence of intoxicants (DWI): RCW 46.61.502 (defining DWI), RCW 46.61.504 (defining actual physical control of vehicle while under the influence of intoxicants), and RCW 46.61.506 (setting forth admissible evidence and tests to establish driving or physical control of vehicle while under the influence of intoxicants) (hereinafter referred to as 1986 amendments). The district court found the 1986 amendments unconstitutional. The superior court affirmed. We granted direct review and reverse.

Prior to the 1986 amendments, a person driving a vehicle in this state with "0.10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood, or other bodily substance" was guilty of DWI. See former RCW 46.61.502(1); see also former RCW 46.61.504, .506. Effective June 11, 1986, ¹ the Legislature redefined the "per se" DWI offense so as to provide that a person is guilty if he "has 0.10 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of his breath, blood, or other bodily substance ..." (Italics ours.) See former RCW 46.61.502; Laws of 1986, ch. 153, §§ 2-5; see also former RCW 46.61.504 and .506.

Under the former statutory scheme, breath tests were used to establish the requisite blood-alcohol ratio for the per se DWI offense. Thus, evidence of the relationship between breath alcohol (the test used) and blood alcohol (the statutory element of the per se DWI offense) was relevant to the issue of whether the State had proved the necessary blood alcohol ratio beyond a reasonable doubt.

The 1986 amendments, by redefining the per se DWI offense in terms of breath-alcohol ratio, render evidence of the relationship of breath alcohol to blood alcohol irrelevant because breath alcohol content now forms an element of the per se DWI offense. The State need not prove any blood alcohol level under the 1986 amendments. Instead, the State must prove the necessary breath-alcohol ratio beyond a reasonable doubt.

Each respondent involved here was charged with driving while under the influence of intoxicants pursuant to RCW 46.61.502(1) and (2) (as amended in 1986). Two respondents are females and one is a black male. Each respondent submitted to a breath test and was found to have at least 0.10 grams of alcohol per 210 liters of breath. Each case was assigned to the Seattle District Court for trial. At various pretrial proceedings, respondents challenged the constitutionality of the Legislature's 1986 amendment of RCW 46.61.502(1). Respondents moved to dismiss the charges pending against them, and, alternatively, to bar prosecution under former RCW 46.61.502(1) (the per se offense). Respondents also moved to suppress their breath test results as evidence of intoxication under any subsection of former RCW 46.61.502.

The district court granted respondents' motion to bar prosecution under former RCW 46.61.502(1) and to suppress the breath test results as evidence in prosecutions pursuant to the remaining sections of former RCW 46.61.502. The trial court concluded that the 1986 amendments were unconstitutional. Specifically, the court held that the 1986 amendments violate due process because they (1) include an improper "conclusive presumption" amounting to guilt by machine; (2) foreclose defendants' rights to present witnesses and evidence; and (3) violate principles of fundamental fairness. Moreover, the court ruled that the statutory scheme violates defendants' rights to confrontation and equal protection. The court found that the Legislature's intent in amending the statutes was to eliminate defendants' expert testimony relating to blood-breath ratios and thereby shorten trials and make convictions easier.

Based on the district court's rulings, the State sought and was granted review by the King County Superior Court. The superior court affirmed the district court's rulings.

Scientific Background

Alcohol contained only in the breath does not cause intoxication. It is the impact of alcohol on the central nervous system, particularly on the brain, that causes the physical and psychological changes associated with impairment. Alcohol reaches the central nervous system through the blood. When used to establish blood alcohol levels, breath testing devices use a mathematical constant to approximate the percentage of alcohol in the blood based on the amount of alcohol present in a breath sample. All breath-testing devices currently used in the United States, including the two devices certified for use in Washington--the Smith and Wesson Breathalyzer 900A and the BAC Verifier DataMaster, use a conversion factor of 2100:1. The 2100:1 conversion factor is an assumed blood-breath ratio. The blood-breath ratio represents the relationship between the number of alcohol molecules in the bloodstream to the number present in the breath when both substances are tested simultaneously. Thus, a 2100:1 conversion factor assumes that for each molecule of alcohol in a given volume of breath, there are 2,100 molecules of alcohol in the same volume of blood.

Because blood-breath ratios vary both between individuals, and at different times in the same individual, a breath test based on a 2100:1 blood-breath ratio may not accurately represent a particular individual's blood alcohol level. If the actual blood-breath ratio is lower than 2100:1, a breath test will overestimate blood alcohol, and vice versa. Factors influencing an individual's blood-breath ratio include body temperature, hematocrit level (the ratio between red blood cells and blood plasma), and the time at which alcohol was consumed in relation to the time breath alcohol is measured. Higher than normal body temperatures resulting from fevers, exercise, and menstrual cycle variations in women result in a lower blood-breath ratio than normal. If all other factors are the same in a given individual, a breath test based on that individual's normal blood-breath ratio, given when body temperature is elevated, will overestimate that individual's actual blood alcohol level.

Moreover, because of the way alcohol is transferred from the blood to the lungs, the amount of alcohol in an individual's breath is not constant. Breath testing machines are designed to test the last portion of a person's breath. Typically, there is less alcohol in the first part of the breath than in the last part, which comes from deeper portions of the lungs, the alveolar sacs, where the alcohol is transferred from the blood to the lung air.

I. Due Process

The State challenges the district court's conclusion that the 1986 amendments violate defendants' due process rights by "creating a conclusive presumption that breath alcohol equals blood alcohol, and hence substitutes the judgement of a machine for the judgement of the jury." See conclusion of law 4, Clerk's Papers, at 69. The superior court affirmed this finding, concluding the statute was "arbitrary in the sense that it is guilt by computer". Oral Decision of Superior Court, at 20, Clerk's Papers, at 202.

A conclusive presumption requires the trier of fact to find the existence of an elemental fact upon proof of a basic fact. Thompson, The Constitutionality of Chemical Test Presumptions of Intoxication in Motor Vehicle Statutes, 20 San Diego L.Rev. 301, 306 (1983). A conclusive presumption cannot be used against a defendant in a criminal trial. See Morissette v. United States, 342 U.S. 246, 275, 72 S.Ct. 240, 255-256, 96 L.Ed. 288 (1952).

The State argues that the 1986 amendments do not create any presumption that breath alcohol equals blood alcohol. Instead, the State contends the 1986 amendments redefine the DWI crime in terms of breath alcohol, rendering blood alcohol irrelevant. The State concludes that the Legislature merely replaced one indicator of driving impairment (blood alcohol) with another (breath alcohol).

Respondents argue that blood alcohol is not only an indicator of impairment as is breath alcohol, but actually causes impairment. Thus, by criminalizing breath alcohol, the Legislature attempts to indirectly regulate blood alcohol levels. Respondents conclude that this indirect regulation creates a conclusive presumption by allowing the State to prove a basic fact--breath alcohol--which requires the trier of fact to presume an elemental fact--blood alcohol and thus impairment.

The district court ruled that "alcohol in the blood, not the breath, ... impacts behavior." Findings of fact on undisputed facts 19, Clerk's Papers, at 67. Respondents assert that this finding establishes that blood alcohol causes impairment. The State argues that finding 19 establishes only that blood alcohol relates to impairment because blood is the transporter of alcohol to the brain. The State concludes that the record contains no evidence to support a finding that blood alcohol causes impairment.

The record establishes that central nervous system alcohol actually causes impairment, Report of Proceedings, at 11, 108-09, and that blood is a transporter of alcohol to the central nervous system tissues, Report of Proceedings, at 13. While evidence exists that alcohol in the bloodstream always indicates presence of alcohol in the central nervous system, and thus may cause intoxication in a but/for sense, the evidence establishes that only central...