City of Seattle v. Allison

148 Wash. 2d 75
CourtWashington Supreme Court
DecidedDecember 12, 2002
DocketNo. 71302-2
StatusPublished
Cited by49 cases

This text of 148 Wash. 2d 75 (City of Seattle v. Allison) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Seattle v. Allison, 148 Wash. 2d 75 (Wash. 2002).

Opinions

Madsen, J.

Three defendants who were charged with driving while intoxicated challenged the admission of BAC Verifier DataMaster II (DataMaster) breath-alcohol test results. The Seattle Municipal Court suppressed the breath test results in all three cases, holding that the information recorded on the breath test documents was insufficient to determine whether there was compliance with Washington Administrative Code (WAC) regulations. We hold that the breath test documents in these cases constitute prima facie evidence that the City of Seattle complied with former WAC 448-13-040 (1999) and thus satisfied the foundational requirements for admissibility of those documents at trial. Accordingly, we reverse the trial court’s suppression order and remand for further proceedings.

FACTS

On December 19, 2000, Fawn Allison was arrested for driving under the influence. The arresting officer, a certified operator of the DataMaster, conducted a breath test. Following the test, the DataMaster printed test result documents that showed Allison’s blood alcohol level was above the legal limit. Allison was charged with driving while intoxicated. She moved to suppress the breath test results. The trial court consolidated her case with the others involved here. At the suppression hearing, the defendants offered transcripts of proceedings held in other jurisdictions involving accuracy of the thermometers used to measure the temperature of the simulator solution in the DataMaster breath testing machines. It is undisputed that the thermometers used in the DataMaster have a built-in variance of at least +/- 0.1 centigrade. In each case, the parties stipulated that the breath alcohol tests were properly ad[79]*79ministered, that the operators who performed the breath tests observed that the DataMaster thermometer was within 0.2 degrees of 34 degrees centigrade, and that the results indicated blood alcohol levels above the legal limit.

Based on variances in the thermometers, the defendants argued that it is possible to have a reading that indicates the temperature of the simulator solution is within the range of 34 degrees +/- 0.2 degrees centigrade as required by former WAC 448-13-040 when the temperature is actually outside that range. They contended that without a recording of the actual temperature reading on the thermometer, which could be adjusted according to the known variance, it is impossible to establish whether the temperature is within the range set forth in former WAC 448-13--040.

The trial court agreed, reasoning that because the breath test documents do not record an actual temperature reading, and thermometers have built-in variances in accuracy, it is impossible for the city to establish a prima facie showing that the breath test documents meet the requirements of former WAC 448-13-040 and, therefore, can never establish the foundation necessary for admissibility. The trial court suppressed the breath test results. The city appealed and this court granted direct review.

DISCUSSION

The foundational requirements for admissibility of breath test results were first established in State v. Baker, 56 Wn.2d 846, 852, 355 P.2d 806 (1960). In order to satisfy its initial burden to establish foundation, the prosecution must show that (1) the machine was properly checked and in proper working order at the time of the test, (2) the chemicals used were of the correct kind and proportion, (3) the subject had nothing in his mouth at the time of the test, and (4) the test was given by a qualified operator and in the proper manner. Id. at 852. Compliance with approved [80]*80breath test procedures is a condition precedent to admission of the test results. Id. Once the foundational requirements are established and the test results are admitted, a defendant may then attack the test results in a particular case by introducing evidence refuting the accuracy and reliability of the test reading. State v. Straka, 116 Wn.2d 859, 875, 810 P.2d 888 (1991).

When the DataMaster replaced the Breathalyzer machine, a similar set of foundational requirements was adopted, ultimately codified in chapter 448-12 WAC, the precursor to the current WAC regulations in chapter 448-13 WAC. The new machine, and its supporting protocols, was challenged and upheld in State v. Ford, 110 Wn.2d 827, 755 P.2d 806 (1988) and Straka, 116 Wn.2d 859.

The state toxicologist has the delegated authority to designate proper methods for performing the analysis of a person’s blood or breath. RCW 46.61.506(3). In Ford, this court observed that “the Legislature has mandated that the analysis of breath or blood is valid if it is performed ‘according to methods approved by the state toxicologist’.” Ford, 110 Wn.2d at 833 (quoting RCW 46.61.506(3)). “When the protocols . .. and existing Code provisions are followed, there is sufficient assurance of accuracy and reliability of the test results to allow for general admissibility of test results.” Straka, 116 Wn.2d at 870.

The relevant procedures are found in several WAC provisions relating to the use and proper functioning of the DataMaster equipment. Former WAC 448-13-040 provides in part:

The temperature of the solution in the simulator prior to the start of the test must be thirty-four degrees centigrade plus or minus 0.2 degrees centigrade. . . . The results of the test will be provided in the form of a printout on a breath test document.

The issue is whether the breath test documents printed by the DataMaster in these cases, which read “SIM TEMP 34c +/- .2c: YES”, are sufficient to establish a foundation for admissibility of the test results under former WAC 448-13-[81]*81-040. The defendants’ primary argument is that use of the word “be” in the WAC requires the city to prove the actual temperature of the simulator solution.

The city argues that the WAC requires the operator to determine only whether the temperature reading on the DataMaster machine is within the prescribed range and that evidence of thermometer variances bears upon the reliability of the test results in a particular case, and goes to weight, not admissibility of the evidence. Accordingly, the city argues that the test results were improperly suppressed.

The meaning of a statute is a question of law and review is de novo. State v. Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001); State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001). Rules of statutory construction apply to administrative rules and regulations. State v. Burke, 92 Wn.2d 474, 478, 598 P.2d 395 (1979). If a rule’s meaning is plain on its face, then the court must give effect to that plain meaning. J.M., 144 Wn.2d at 480.

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148 Wash. 2d 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-seattle-v-allison-wash-2002.