Walk v. State, Dept. of Licensing

976 P.2d 185, 95 Wash. App. 653
CourtCourt of Appeals of Washington
DecidedMay 13, 1999
Docket16914-6-III
StatusPublished
Cited by26 cases

This text of 976 P.2d 185 (Walk v. State, Dept. of Licensing) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walk v. State, Dept. of Licensing, 976 P.2d 185, 95 Wash. App. 653 (Wash. Ct. App. 1999).

Opinions

Sweeney, J.

— WAC 448-13-040 requires several safeguards that must be “observed by the operator” before a BAC Verifier DataMaster test is performed. The operator must determine that the person does not vomit, eat, drink or smoke at least 15 minutes prior to the administration of the BAC test. WAC 448-13-040.

Larry Walk was arrested for driving under the influence. An officer—not the BAC operator—observed Mr. Walk for the required 15-minute period before the operator administered the BAC test. The first question here is whether the officer who conducts the BAC test must actually observe the suspect during the observation period required by WAC 448-13-040. Or whether, instead, another officer may actually observe the suspect for the required period and communicate to the operator that the safeguards were satisfied. We conclude that WAC 448-13-040 does not require that the officer actually administering the BAC test personally observe the suspect during the required 15-minute observation period. But here, we find no evidence or finding that the officer who actually observed Mr. Walk before the BAC test communicated his observations to the officer [655]*655who actually administered the test. Accordingly, we are constrained to reverse the decision of the trial court which affirmed the suspension of Mr. Walk’s license.

FACTS

The material facts here are undisputed. Deputy Chad Birkenfeld arrested Mr. Walk for driving or being in actual physical control of a motor vehicle while under the influence. At 10:56 p.m., Deputy Birkenfeld checked Mr. Walk’s mouth for foreign substances. Deputy Birkenfeld then observed Mr. Walk between 10:56 p.m. and 11:20 p.m. He observed that Mr. Walk did not eat, drink, smoke, or vomit during that time frame.

At 11:20 p.m., Deputy John Eberle arrived at the Cle Elum Police Department to administer the BAC test. Deputy Eberle is a certified and authorized operator of the BAC machine. WAC 448-13-150. According to the BAC printout signed by Deputy Eberle, the first test resulted in a 0.144 reading, and the second in a reading of 0.148.

After the results were reported, the Department of Licensing required Mr. Walk to obtain a probationary driver’s license. RCW 46.20.308(7). Mr. Walk requested an administrative hearing to contest the probationary license. RCW 46.20.308(8). He challenged the admissibility of the BAC tests primarily because the officer who administered the tests was not present during the mouth check and observation period. The hearing officer rejected the challenge and sustained the Department’s requirement that he obtain a probationary license. The hearing officer concluded that:

WAC 448-13-040 requires the operator determine the mouth-check and 15-minute waiting period has been adhered to. There is no requirement the operator actually be present at those times. He can make the determination based on the observations of a fellow-officer.

[656]*656Mr. Walk appealed the hearing officer’s decision to the Kit-titas County Superior Court. The Superior Court affirmed.

DISCUSSION

Mr. Walk contends the officer who conducts the BAC test must actually observe the 15-minute observation period and safeguards under WAC 448-13-040.

Standard of Review: In reviewing an administrative decision, we stand in the same position as the trial court. Galvin v. Employment Sec. Dep’t, 87 Wn. App. 634, 640, 942 P.2d 1040 (1997), review denied, 134 Wn.2d 1004 (1998). The superior court reviews the final order of the Department in the same manner as an appeal from a decision of a court of limited jurisdiction. RCW 46.20.308(9); Hatfield v. Department of Licensing, 89 Wn. App. 50, 52-53, 947 P.2d 269 (1997). Rules for Appeal of Decisions of Courts of Limited Jurisdiction (RAU) 9.1 provides in part:

(a) Errors of Law. The superior court shall review the decision of the court of limited jurisdiction to determine whether that court has committed any errors of law.
(b) Factual Determinations. The superior court shall accept those factual determinations supported by substantial evidence in the record (1) which were expressly made by the court of limited jurisdiction, or (2) that may reasonably be inferred from the judgment of the court of limited jurisdiction.

Although Mr. Walk assigns error to various findings of fact, the first issue is a question of law—whether WAC 448--13-040 requires the officer who conducts the breath test to actually observe during the observation period. Although we may substitute our judgment for that of the administrative body, we accord substantial weight to the agency’s view of the law. Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 325, 646 P.2d 113 (1982) (reviewing issues of law under the Administrative Frocedure Act), cert. denied, 459 U.S. 1106 (1983); Valentine v. Department of Licensing, 77 Wn. App. 838, 844, 894 P.2d 1352, review denied, 127 [657]*657Wn.2d 1020 (1995); see also City of Sunny side v. Fernandez, 59 Wn. App. 578, 799 P.2d 753 (1990).

Interpretation of WAC 448-13-040: WAC 448-13-040 states in relevant part:

Administration of breath test on the BAC Verifier DataMaster. The following method for performing a breath test is approved by the state toxicologist pursuant to WAC 448-13-130 and includes the following safeguards to be observed by the operator prior to the test being performed. It must be determined that: (1) The person does not vomit or have anything to eat, drink, or smoke for at least fifteen minutes prior to administration of the test; and (2) the subject does not have any foreign substances, not to include dental work, fixed or removable, in his or her mouth at the beginning of the fifteen minute observation period. Such determination shall be made by either an examination of the mouth or a denial by the person that he or she has any foreign substances in mouth.

(Emphasis added.)

Like a statute, we interpret a WAC provision to give effect to its underlying policy and intent. See Fernandez, 59 Wn. App. at 582. And we glean that intent and purpose from the subject matter and statutory text as a whole. Id. (quoting Eastlake Community Council v. Roanoke Assocs., Inc., 82 Wn.2d 475, 490, 513 P.2d 36, 76 A.L.R.3d 360 (1973)).

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Bluebook (online)
976 P.2d 185, 95 Wash. App. 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walk-v-state-dept-of-licensing-washctapp-1999.