State v. Straka
| Decision Date | 16 May 1991 |
| Docket Number | No. 57298-4,57298-4 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Donald A. STRAKA, Appellant. STATE, ex rel. Seth DAWSON, Petitioner, v. SOUTH DISTRICT COURT and Judge W.L. Wilson, et al., Respondents. |
Seth R. Dawson, Snohomish County Prosecutor and Kevin M. Korsmo, Deputy County Prosecutor, Everett, for the State.
Douglas L. Cowan, Stephen W. Hayne, and Jon Scott Fox, Bellevue, for appellant Straka.
Jones, Ross, Mallory, Besman & Connolly, P.S., Michael E. Jones, Lynnwood, for respondents Wilson, et al.
Norm Maleng, King County Prosecutor and F. Drew Zavatsky, Deputy County Prosecutor, Seattle, amici curiae.
In these consolidated cases two primary issues are presented: (1) Is the state toxicologist required to approve and publish in the Washington Administrative Code procedures for evaluating, certifying, and maintaining DataMaster breath testing machines, and procedures for formulating, testing, and using the simulator solution used in the machines, before DataMaster breath test results may be admitted in prosecutions for driving while intoxicated? (2) Invalid sample code messages appear on the DataMaster's screen when the machine is unable to complete a breath test under certain circumstances. Must breath test results be suppressed on the ground that a record of the invalid sample code messages is not preserved by the State and made available to defendants?
As to the first question, we conclude that the state toxicologist has carried out the statutory directive in RCW 46.61.506(3) that he approve methods for breath alcohol analysis, that in any event he need not promulgate further formal rules pursuant to the Administrative Procedure Act (Act), RCW Ch. 34.05 (formerly RCW Ch. 34.04), that certain protocols approved by the state toxicologist are not "rules" within the meaning of the Act, and that defendant's due process rights are protected under existing law. As to the second question, we hold that due process does not require that the State preserve a record of the invalid sample code messages.
For ease of analysis and the reader's convenience, the facts and resolution of State v. Straka follows in full, with the facts and resolution of State ex rel. Dawson v. South District Court addressed thereafter.
In the first case before us defendant Donald Straka was arrested for driving while intoxicated and then taken to the Monroe Police Department where he underwent physical sobriety tests. Straka then agreed to submit to breath alcohol analysis performed on a DataMaster machine. The tests results showed readings of .18 percent and .17 percent breath alcohol content.
Straka moved to suppress the breath testing results, arguing, among other things, 1 that the breath test results should have been suppressed on the grounds that the state toxicologist failed to properly promulgate written procedures and protocols for evaluation and certification of the DataMaster machines, and failed to properly promulgate written procedures for the formulation, testing and use of the simulator solution used in the machines, contrary to applicable court rules and the Washington Administrative Code (Code). A suppression hearing was held in Evergreen District Court on January 31, 1990. The court was presented with testimony of Dr. Vidmantas Raisys, who was then the state toxicologist, and testimony of employees of the state toxicology lab and the Washington State Patrol including Sergeant Rod Gullberg of the Washington State Patrol, who is attached to the breath testing section of the Washington State Patrol Crime Lab and directs the DataMaster testing program.
Essentially this is a representative case. The parties submitted the relevant issues to the trial court on a stipulated record from another case. The aim of the parties has been to present a complete record for purposes of deciding the issues, which have been the subject of considerable litigation.
Breath alcohol analysis is currently tested using BAC Verifier DataMaster II machines. According to the testimony in the stipulated record, when the State Patrol receives a DataMaster machine from the manufacturer, a written protocol approved by the state toxicologist must be followed before a DataMaster is put into the field. This evaluation process, developed largely by the Washington State Patrol Crime Lab, involves testing all the major functions of the DataMaster machines, including, among numerous tests, tests of the acetone detector, the radio-frequency interference detector, and the mouth alcohol detector. Results of the evaluation are recorded on a 4-page form. The evaluation procedure has been approved by the state toxicologist.
After evaluation of the machines, and before they are placed in the field, the DataMaster machines undergo a certification procedure. The state toxicologist has approved the certification procedure, which is also in written form, although it was not prior to 1987. The first certification procedure was developed by the breath testing section of the Washington State Patrol Crime Lab, and was approved by the state toxicologist. A second and third version do not contain any substantive changes in the procedure. The certification procedure involves tests of the DataMaster conducted using solutions of water and alcohol at known values--if the known strengths of the solutions are reproduced within acceptable limits, the machine is properly functioning. DataMaster machines in the field are recertified after repair or replacement of certain parts of the machines.
In addition to the evaluation and certification procedures, the state toxicologist has approved three successive versions of a written protocol for preparing the simulator solution used in breath testing. The DataMaster breath alcohol analysis includes running a simulator test between two breath measurements, in order to determine if the machine is in proper working order and correctly analyzing a subject's breath samples. In simple terms, the subject blows into a mouthpiece on the machine, then vapor from the simulator solution is tested, then the subject blows a second time. 2 The machine measures the alcohol content of these three samples. Accuracy and reliability are thus tested in at least two ways--the correlation between the two breath analyses, and the calibration check which the simulator test provides.
The simulator solution is prepared and tested by employees at the state toxicology laboratory. The solution is made by mixing ethyl alcohol and water in known concentration. The sole procedure used at the lab to check the ethanol concentration of the simulator solution is gas chromatography. While the first two written protocols simply directed that the ethanol concentration be determined after mixing, the third directs that this procedure be accomplished through gas chromatography.
After mixing and testing, the solution is placed into individual jars, sealed, and sent to the field for use in the DataMaster machines.
The protocols for evaluation and certification of the machines, and preparation and testing of the simulator solution were not promulgated through formal rulemaking under the Administrative Procedure Act, and they are not set out in the Washington Administrative Code (WAC).
Additional testimony is recounted in the analysis below.
The trial court denied Straka's motion to suppress the breath test results, adhering to its prior decision (in the case in which the stipulated record was made) where it concluded that the state toxicologist has met the statutory requirement that he approve methods for testing breath for alcohol content. The court also concluded that adherence to the protocols for evaluation and certification of the DataMaster machines, and adherence to the protocol for preparing and testing the simulator solution, when coupled with strict compliance with applicable WACs, produces scientifically reliable results in the field.
Straka was convicted, and appealed. The RALJ appeal was certified by a judge of the Snohomish County Superior Court to this court, which accepted direct review.
In this case we must decide whether RCW 46.61.506(3) requires the state toxicologist to promulgate through formal administrative rulemaking methods for evaluating and certifying DataMaster machines, and for preparing and testing the simulator solution used in breath testing; and whether the written protocols approved by the state toxicologist are "rules" within the meaning of the Administrative Procedure Act and therefore must be published in the Washington Administrative Code.
RCW 46.61.506(3) provides:
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.
The state toxicologist has approved the DataMaster as a device for the measurement of a person's breath for alcohol concentration. WAC 448-12-210. 3 In State v. Ford, 110 Wash.2d 827, 755 P.2d 806 (1988), this court held that the state toxicologist's approval of the DataMaster was not arbitrary or capricious, and therefore was valid.
Defendant maintains that the approval upheld in Ford relates only to the technique for measuring the breath, i.e., the DataMaster, but that the methods by which the technique is to be utilized must be provided through formal rulemaking pursuant to the Administrative Procedure Act and must be...
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