State v. Felix, 41572
| Decision Date | 08 January 1971 |
| Docket Number | No. 41572,41572 |
| Citation | 78 Wn.2d 771,479 P.2d 87 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Petitioner, v. Ronald L. FELIX, Respondent. |
Charles O. Carroll, Pros. Atty., James E. Warme, Deputy Pros. Atty., Seattle, for petitioner.
Cushman, Thomas & Holt, Richard M. Holt, Issaquah, for respondent.
Slade Gorton Atty. Gen., John H. Keith, Asst. Atty. Gen., Olympia, amici curiae.
Defendant was convicted in Redmond District Justice Court of driving a motor vehicle on November 25, 1969, while under the influence of intoxicating liquor. He questions whether Trooper John Williams, Washington State Patrol, was legally certified by the state toxicologist to testify as to his blood alcohol. Trooper Williams, who arrested defendant and gave him the breathalyzer test, had testified as to its results under a permit or certificate issued him by Dr. Ted A. Loomis of the University of Washington medical faculty.
Long before the events of this case, the Board of Regents of the University of Washington, June 1, 1955, in accordance with RCW 68.08.107, Laws of 1953, ch. 188, § 13, p. 405, had appointed Dr. Loomis as head of what was designated as the state toxicological laboratory.
That statute, RCW 68.08.107, reads in material part:
There shall be established at the University of Washington Medical School a state toxicological laboratory under the direction of A competent toxicologist whose duty it will be to perform all necessary toxicologic procedures requested by all coroners and prosecuting attorneys.
(Italics ours.) Defendant contends not that Dr. Loomis was not the state toxicologist as contemplated by the 'implied consent' initiative approved in 1968, Laws of 1969, ch. 1, p. 1, effective December 5, 1968, which provided for certification by a state toxicologist--an enactment in effect on the date of the offense charged. The people, he says, did not in the initiative mean the head of the state toxicological laboratory but a different position entirely. The prosecution says that the state toxicologist was no more than a continuum of the same position with but a slightly different name.
Defendant on appeal to the superior court moved at pretrial to suppress the breathalyzer results on the grounds that (1) RCW 46.61.506(3) () required that operators of the breathalyzer testing device be certified as competent and qualified to administer the test by the state toxicologist; (2) on November 25, 1969, there was no public officer or official in existence duly entitled by law to perform the function or duties of state toxicologist; and that (3) therefore, Trooper Williams, for want of such a permit or certificate, was not competent to testify as to the results of the breathalyzer test. The superior court granted the motion and the state brought the matter here on petition for certiorari to review the order suppressing the breathalyzer evidence. The parties agree that:
Subsequent to the enactment of section 68.08.107 the Board of Regents of the University of Washington on June 1, 1955 appointed Dr. Ted A. Loomis to head the State Toxicological Laboratory established under that section. At that time Dr. Loomis assumed the title of State Toxicologist. Since 1955 Dr. Loomis has held the position as head of the State Toxicological Laboratory almost without interruption. During that time he had been called, justifiably or unjustifiably, the State Toxicologist.
Also, since assuming the position as head of the State Toxicological Laboratory Dr. Loomis has instructed members of the Washington State Patrol and others in the operation and maintenance of the breathalyzer.
Prior to December 5, 1968 the results of a breath analysis test to determine the amount of alcohol in a persons blood was admissible in a criminal prosecution where a proper foundation was laid. Dr. Loomis's instructions to law enforcement agencies prior to December 5, 1968 were undertaken as a part of his duties as head of the State Toxicological Laboratory and were designed to comply with the legal requirements necessary to introduce breath analysis tests into evidence.
Whether Trooper Williams was an expert and otherwise qualified to administer the test, and thus competent to testify as to its results, is not the issue. The question before us is whether Dr. Ted A. Loomis, designated as head of the state toxicological laboratory on June 1, 1955, by the University of Washington under the 1953 statute (RCW 68.08.107), establishing 'a state toxicological laboratory under the direction of a competent toxicologist' was to be deemed the qualified and acting state toxicologist, legally authorized to certify the witness.
Initiative 242, known as the 'Implied Consent Law,' RCW 46.61.506(3), in effect at the time of defendant's arrest by Trooper Williams, reads in part:
Chemical 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. 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 of revocation at the discretion of the State toxicologist.
(Italics ours.)
Dr. Loomis, according to the stipulated facts, was cognizant of this legislation and
acting upon the belief that he was State Toxicologist referred to in the Initiative published rules governing the procedures and method of administering the breathalyzer test, regulations governing the courses of instruction for operators and maintenance technicians, and methods of testing and certifying individuals approved to operate the breathalyzer. Acting pursuant to RCW 34.04.030 (the Administrative Procedures Act) Dr. Loomis on December 5, 1968 filed emergency rules and regulations in the office of the code reviser. On the 24th of January, 1969, Dr. Loomis acting pursuant to RCW 34.04.040 filed permanent rules which are now found in WAC 48.12.010 and following. He also issued permits certifying to the qualifications of operators and technicians and signed his name as the State Toxicologist.
Dr. Loomis was never appointed by the Governor nor anyone else as the official State Toxicologist, per se.
It should be noted parenthetically that subsequent to the events of this case, the legislature amended RCW 68.08.107, in effect reestablishing a state toxicological laboratory at the University of Washington Medical School under the direction of a state toxicologist, and prescribed that he be appointed by the President of the University to a 1-year term. 1 We disagree with defendant's contention that this 1970 legislation amounts to a legislative declaration that the office of state toxicologist as referred to in initiative 242, RCW 46.61.506(3), did not exist and that Dr. Loomis could not, therefore, carry out its duties.
When, in 1953, the state legislature enacted RCW 68.08.107, it...
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...v. County of Pierce, 24 Wash.App. 281, 285, 600 P.2d 683 (1979); other statutes dealing with the same subject, State v. Felix, 78 Wash.2d 771, 776, 479 P.2d 87 (1971); Springer v. Department of Licensing, 24 Wash.App. 847, 849, 604 P.2d 994 (1979); and administrative interpretation of the s......
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Fritts v. Department of Motor Vehicles, 432--II
...intended to be afforded the implied consent provisions in dealing with the problem of the intoxicated motorist. State v. Felix, 78 Wash.2d 771, 479 P.2d 87 (1971). From our review of the record, we are satisfied that under the applicable standards, Officer Hammock had probable cause to effe......
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Strand v. State Dept. of Motor Vehicles
...consequences are to be avoided, and the initiative should be given a reading which makes it purposeful and effective. State v. Felix, 78 Wash.2d 771, 479 P.2d 87 (1971); Fritts v. Department of Motor Vehicles, 6 Wash.App. 233, 492 P.2d 558 The intent of this initiative is to place an operat......