State v. Hieu Nhu Truong

811 P.2d 938, 117 Wash. 2d 63, 1991 Wash. LEXIS 272

• Court: Washington Supreme Court
• Decided: June 6, 1991
• Docket: Nos. 56339-0, 56675-5
• Status: Published

Opinions

Smith, J.

The State of Washington seeks review of a decision by the Cowlitz County Superior Court which affirmed a declaration by the Cowlitz County District Court that Cowlitz County Code 10.13.010, which prohibits minors from appearing in a public place after consuming intoxicating liquor, is unconstitutional. We affirm the results reached by the Cowlitz County Superior Court and the Cowlitz County District Court and hold the ordinance unconstitutional.

Thirteen cases are consolidated here for review.¹ The State charged each defendant with violating Cowlitz County Code (CCC) 10.40.020, the so-called "appearing after consuming" ordinance, which provides:

Offense. A. It is unlawful for any person under the age of twenty-one years to appear on the public streets or roadways, or in any motor vehicle on a public street or roadway, or in any public place within the unincorporated areas of the County after having consumed intoxicating liquor,[²] regardless of where consumption may have occurred; provided, that at the time of the appearance as aforesaid, evidence exists as to the consumption of intoxicating liquor.

B. For the purposes of this section, the presence of the odor of intoxicating liquor, beer or wine on the breath of any person under the age of twenty-one years shall be prima facie evidence of consumption of intoxicating liquor. This provision shall not be construed as limiting the introduction of any other competent evidence of the consumption of intoxicating liquor in violation of this section.

C. It is an affirmative defense to be proven by the defendant by a preponderance of the evidence that the intoxicating liquor consumed by the defendant was given to the defendant by his parent or guardian and consumed in the presence of the parent or guardian, or given for medicinal purposes by a parent, guardian, physician, or dentist, or was consumed in connection with a religious service and the amount consumed was the minimal amount necessary for the religious service.

The Honorable Robert R. Altenhof, Cowlitz County District Court, declared the ordinance unconstitutional and dismissed all charges before trial. The court ruled that the ordinance is in conflict with RCW 66.44.270 and RCW 70.96A.190 and therefore exceeds the police power granted counties by Const, art. 11, § 11.

On appeal, the Cowlitz County Superior Court, the Honorable Alan R. Hallowell, affirmed the district court ruling on a different basis. He concluded that CCC 10.40-.020 and RCW 66.44.270 proscribe the same conduct, and that the ordinance is unconstitutional because different penalties are prescribed. The Superior Court found no conflict between CCC 10.40.020 and RCW 70.96A.190.

We granted discretionary review upon petition by the State of Washington.

The State assigned the following errors:

1. The Superior Court erred in entering its June 29, 1989, and November 9, 1989, judgments affirming the District Court's dismissal of criminal charges filed against respondents under Cowlitz County Code 10.40.

2. The Superior Court erred in holding that Cowlitz County Code 10.40, on its face, conflicts with RCW 66.44.270 and therefore violates article 11, section 11 of the Washington State Constitution.

3. The Superior Court erred in holding that Cowlitz County Code 10.40 prohibits the same conduct as RCW 66.44.270.

The issues presented by this case are whether CCC 10.40.020:

1. Conflicts with RCW 70.96A.190;

2. Conflicts with RCW 66.44.270;

3. Is an unreasonable exercise of police power; or

4. Violates due process protections because of vagueness.

If any of these is answered "yes", the ordinance is unconstitutional.

Among other reasons given by the Cowlitz County District Court for declaring CCC 10.40.020 unconstitutional, the court determined that the ordinance conflicted with RCW 70.96A.190.

RCW 70.96A.190 provides in its entirety:

Criminal laws limitations. (1) No county, municipality, or other political subdivision may adopt or enforce a local law, ordinance, resolution, or rule having the force of law that includes drinking, being an alcoholic or drug addict, or being found in an intoxicated condition as one of the elements of the offense giving rise to a criminal or civil penalty or sanction.

(2) No county, municipality, or other political subdivision may interpret or apply any law of general application to circumvent the provision of subsection (1) of this section.

(3) Nothing in this chapter affects any law, ordinance, resolution, or rule against drunken driving, driving under the influence of alcohol or other psychoactive chemicals, or other similar offense involving the operation of a vehicle, aircraft, boat, machinery, or other equipment, or regarding the sale, purchase, dispensing, possessing, or use of alcoholic beverages or other psychoactive chemicals at stated times and places or by a particular class of persons; nor shall evidence of intoxication affect, other than as a defense, the application of any law, ordinance, resolution, or rule to conduct otherwise establishing the elements of an offense.

(Italics ours.)

The State does not argue that CCC 10.40.020 does not fall within the general preemption of RCW 70.96A.190(1). It instead argues that:

Cowlitz County's ordinance is not the kind of local regulation RCW 70.96A intends to preempt. This is clear from subsection (3), which specifically authorizes ordinances "regarding the . . . use of alcoholic beverages ... by a particular class of persons." Cowlitz County Code 10.40[.020] . . . deals with [minors'] illegal use of alcoholic beverages.

The State, seeking to avoid state preemption of CCC 10.40.020 by bringing the ordinance within one of the exceptions provided in RCW 70.96A. 190(3), characterizes the County's prohibition of "appearing after consuming" as an "ordinance . . . regarding the . . . [illegal] use of alcoholic beverages ... by a particular class of persons." However, this characterization is not correct.

In State v. Hornaday3 this court declared that "[o]nce [alcohol] is within a person's system, the power of a person to control, possess, use or dispose of it is at an end." Thus, appearing in public after consuming alcohol is not the "use of alcoholic beverages" which the Legislature permits counties to regulate under RCW 70.96A. 190(3).

We conclude that Cowlitz County Code 10.40.020 is in conflict with RCW 70.96A.190 which preempts regulation of alcoholic beverage subject matter with certain exceptions. The State has not shown that CCC 10.40.020 falls within any of those exceptions. The ordinance is therefore unconstitutional because it exceeds the authority granted counties by Const, art. 11, § ll.⁴ The District Court did not err in declaring the ordinance unconstitutional on this basis.

Because of our determination that the ordinance is unconstitutional, it is not necessary for us to address the issue raised by the Superior Court whether CCC 10.40.020 is unconstitutional as proscribing the same behavior as RCW 66.44.270. Similarly, it is not necessary for this court to address the issues of reasonableness and vagueness which were raised by the parties.

We declare unconstitutional Cowlitz County Code 10.40-.020, which prohibits minors from appearing in a public place after consuming intoxicating liquor, because it conflicts with RCW 70.96A.190.

We affirm the results reached by the Cowlitz County Superior Court and the Cowlitz County District Court.

Dore, C.J., Utter, Dolliver, Andersen, and Guy, JJ., and Callow, J. Pro Tern., concur.

1 The named defendants (Hieu Nhu Truong, Tracy Adirim, Karl L. Chappelle, Toni D. Chick, Tonya E. French, Connie Gihuly, Jody M. Green, Marc W. Johnson, Scott L. Juntunen, Jeffrey E. Mitchell, and Loi H. Nguyen) were issued citations on August 7, 1988, at the same time and place. Dawn Marie Buck and Tami Lynn Buck were issued citations on May 25, 1988. The record makes no reference to facts relating to any defendant other than Hieu Nhu Truong, who stipulated to facts sufficient to support a conviction.

2 "Liquor" is defined in Cowlitz County Code 10.40.010(A) and in language substantially similar to that of RCW 66.04.010(15):

" 'Liquor' includes the four varieties of liquor herein defined (alcohol, spirits, wine and beer), and all fermented, spirituous, vinous, or malt liquor, or combinations thereof, and mixed liquor, a part of which is fermented, spirituous, vinous or malt liquor, or otherwise intoxicating; and every liquid or solid or semisolid or other substance, patented or not, containing alcohol, spirits, wine or beer, and all drinks or drinkable liquids and all preparations or mixtures capable of human consumption, and any liquid, semisolid, solid, or other substance, which contains more than one percent of alcohol by weight shall be conclusively deemed to be intoxicating. Liquor does not include confections or food products that contain one percent or less of alcohol by weight."

3 105 Wn.2d 120, 126, 713 P.2d 71 (1986) (minor does not "possess" alcohol merely because it is in the minor’s bloodstream).

4 Article 11, section 11 of the Washington State Constitution provides: "POLICE AND SANITARY REGULATIONS. Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."