Pleading Wizard by niusheng11

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 2            IN THE DISTRICT COURT I OF THE STATE OF WASHINGTON
                              FOR CLALLAM COUNTY
 3
                                      )
 4
     State Of Washington,             ) Case No.: C497571
 5                                    )              C497210
 6              Plaintiff,            )              C511110
         vs.                          )
 7
                                      )              OPINION
 8
     Edmond Dexter Backus             )
 9   Mark Dale Creasey                )
10   Realynn Marie Goin,              )
                Defendant             )
11

12
         Having considered the Defendants’ Suppression Motions,
13   Memorandum of Authorities presented by attorneys Scott E. Wonder
14   and Harry Gasnick respectively, the Responsive Brief filed by

15
     the State of Washington, represented by Deputy Prosecutor
     Jennifer Ward, and having considered the oral arguments of each
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     counsel, this court rules as follows:
17

18                             ISSUES PRESENTED

19
         The Defendants claim that the recently enacted SHB 3055,
20
     Laws of 2004, Ch 68, is unconstitutional on three grounds:
21

22       1)    SHB 3055 embraces more that one subject matter and

23
         contains subjects not expressed in its title;
         2) SHB 3055 violates the separation of powers doctrine by
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         mandating the admission of DUI tests without regard to ER
25
         401 or 403; and

                                   -1-            Rick Porter, Judge
                                                  Clallam County District Court I
                                                  223 East 4th St., Suite 10
                                                  Port Angeles, WA    98362
                                                  360-417-2560 Fax 360-417-2403
 1         3) SHB 3005 creates a mandatory rebuttable presumption of
 2         the validity of the DUI test.

 3
          SUBJECT MATTER ISSUE
 4

 5         The Defendants argue the title of the Act, “AN ACT Relating
 6   to admissibility of DUI tests” is “restrictive” rather than

 7
     “general” and, therefore, limits the scope of the Act to the
     admissibility of DUI tests, as expressed in the title, pursuant
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     to Article II, Sect 19 of the Washington State Constitution.
 9

10         The State argues that SHB 3055 is merely an amendatory Act,

11   and since the original act was general, encompassing every
     aspect of the DUI law, there can be no constitutional violation.
12

13
           In determining whether the title is general or restrictive,
14   the fundamental question is whether the title provides adequate

15   notice of the subjects covered within the Act.        The danger is,
     if a given statute has a very restrictive title and a variety of
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     unrelated topics were contained in it, the public would not be
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     given adequate notice that the unrelated laws exist.          State v.
18   Broadaway, 133 Wn. 2d 118, 124,942 P.2d 363 (1997); State v.

19   Burke, 90 Wn. App. 378, 952 P.2d 619 (1998).

20
           In this case, the title is “AN ACT Relating to
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     admissibility of DUI tests.”   The Defendants claim that the
22   statute is overly broad because it discusses, among other

23   things, search warrants for obtaining DUI tests; how blood tests
     are to be taken in a medical facility; changes in the implied
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     consent warnings; DOL administrative hearings relating to DUIs
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     and Minor DUIs; and how the Department Of Licensing can use the
     DUI test in their proceedings.       However, in each example cited
                                    -2-           Rick Porter, Judge
                                                  Clallam County District Court I
                                                  223 East 4th St., Suite 10
                                                  Port Angeles, WA    98362
                                                  360-417-2560 Fax 360-417-2403
 1   by the Defendants, there is a clear and undeniable nexus between
 2   the specific issue cited and the “admissibility of DUI tests.”

 3
           First, this court holds that the title, “AN ACT Relating to
 4
     admissibility of DUI tests” is general in nature; second the
 5   statute provides sufficient notice regarding the subject matter
 6   contained therein.

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          SEPARATION OF POWERS DOCTRINE ISSUE
 8

 9
       The Defendants assert that the State Supreme Court promulgates
10   the Rules of Evidence and that the Legislature has no authority

11   to abridge or modify those rules.       The Defendants temper their
     position, claiming that the Legislature can promulgate
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     evidentiary rules, but when a statute and an existing
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     evidentiary rule conflict, the court must determine if the law
14   is substantive or procedural.     They go on to argue that if the

15   statute is substantive, then the statue would prevail; if it is
     procedural, then the rule would prevail.       The Defendants then
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     argue that SHB 3055 is procedural and any conflict with the
17
     evidentiary rules nullifies the statute.
18

19     The State argues that the statute is substantive and,
     therefore, takes precedence over the rule.
20

21
       The court starts its analysis with the yellowing pages of
22   State v. Pavelich, 153 Wash. 379 (1929), wherein the court held,

23   that the Legislature has the authority to establish rules of
     evidences and those “evidentiary rules are substantive law.”
24
     Pavelich at 382.     While that would appear to be dispositive,
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     this court believes it is not.        If we were to leave the analysis
     at this point, any substantive evidentiary statute, regardless
                                     -3-           Rick Porter, Judge
                                                   Clallam County District Court I
                                                   223 East 4th St., Suite 10
                                                   Port Angeles, WA    98362
                                                   360-417-2560 Fax 360-417-2403
 1   how absurd, would have to be adopted by the courts without
 2   regard to the intended or unintended consequences.

 3
       In this case, SHB 3055 mandates the admissibility of a DUI
 4
     test without regard to the test’s accuracy and precludes any ER
 5   401 and 403 analysis by the trial court (RCW 46.61.506(4)(c).
 6   In other words, even if the court finds that the test has no
     probative value and perhaps would even mislead the jury, due to
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     some technical defect in the testing procedure, the court is
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     still required to admit the evidence.
 9

10     One of the fundamental purposes of the trial court is to
     ensure that parties receive a fair trial.   If the trial court is
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     required to admit evidence that may be inaccurate, tainted, or
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     in some cases misleading, we cannot assure the parties’ receive
13   a fair trial.
14
         This raises the question, are there any legal limits to a
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     substantive evidentiary statute asserted in Pavelich, supra? The
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     court in State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984)
17   confirmed that the legislature has the authority to establish
18   substantive evidentiary rules, but goes on to clarify,

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              “statutory enactments of evidentiary rules are
20       subject to judicial review, this court [the Washington
         State Supreme Court] being the final arbiter of
21       evidentiary rules.” Ryan at 178
22
       The court in Ryan, supra, was able to harmonize the statute
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     (creating the child hearsay exception) with ER 403 because the
24   statute used the language “is admissible” which is permissive
25   and did not mandate admission, which still allows the court to


                                  -4-        Rick Porter, Judge
                                             Clallam County District Court I
                                             223 East 4th St., Suite 10
                                             Port Angeles, WA    98362
                                             360-417-2560 Fax 360-417-2403
 1   conduct an ER 401/403 analysis.     Ryan at 178-179.    (See also
 2   Zwicker generally.)

 3
       Two recent cases clarify the State Supreme Court’s position
 4
     regarding the balance between the legislature’s authority to
 5   promulgate substantive evidentiary statutes and the trial
 6   court’s obligations under ER 401 and 403.    In State v. Zwicker,
     105 Wn.2d 228, 713 P.2d 1011 (1986), the court conducted a
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     similar analysis regarding a statute involving the right to
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     refuse the BAC.   In Zwicker, the court provided specific limits
 9   on the Legislature’s authority to enact substantive evidentiary
10   rules, stating,

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           “This interpretation of RCW 46.61.517 requires that
12       the language of the provision “is admissible” be read
         as permissive language and not mandating admissibility
13       in all cases. This interpretation also avoids any
         conflict with ER 401 and ER 403, which would require
14
         invalidation of the statute. Zwicker at 238 (emphasis
         added)
15

16     In the tandem case, State v. Long, 113 Wn.2d 266, 778 P.2d
     1027 (1989), the court upheld the statute in question, but
17
     added,
18

19       “We perceive no credible reason why the Legislative
         determination should not be honored by this court.
20       While we retain our power to determine the relevancy
         and thus the admissibility of certain types of
21       evidence, we perceive no valid reason not to accept
         the Legislature’s recognition of relevancy in this
22
         instance. . . This is not to say, however, that
         depending on the facts of the particular case, the
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         trial court may not exclude such evidence if the
24       probative value of such evidence is found to be
         substantially outweighed by the danger of unfair
25       prejudice, confusion of the issues or misleading the
         jury.” (emphasis added)

                                   -5-          Rick Porter, Judge
                                                Clallam County District Court I
                                                223 East 4th St., Suite 10
                                                Port Angeles, WA    98362
                                                360-417-2560 Fax 360-417-2403
 1
         In this case, RCW 46.61.506 appears to have an internal
 2
     conflict with the mandatory/permissive language used.      RCW
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     46.61.506(4)(a) states that the DUI test “shall be admissible at
 4   trial.”   If the Legislature had intended it to be mandatory,

 5   they would have written, “Shall be admitted at trial.”      While
     “Shall be admissible” is stronger than “is admissible” and could
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     even be argued to be presumptive, it still remains permissive,
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     which does not prohibit an ER 401/403 analysis.
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 9       RCW 46.61.506(4)(c), however, states,
              “Nothing in this section shall be deemed to
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         prevent the subject of the test from challenging the
         reliability or accuracy of the test, the reliability
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         or functioning of the instrument, or any maintenance
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         procedures. Such challenge, however, shall not
         preclude the admissibility of the test once the
13       prosecution or department has made a prima fascia
         showing of the requirements contained in (a) of this
14       subsection. Instead, such challenges may be
         considered by the trier of fact in determining what
15       weight to give to the test result.” (emphasis added)

16       As stated above, Section (c) makes admission of DUI test
17   mandatory; in contradistinction, subsection (a) uses permissive
     language.   Neither this court, nor the State, when asked, could
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     find any other statutes that mandate the admission of evidence
19
     and precludes an ER 401/403 analysis.   Accordingly, this court
20   finds that RCW 46.61.506(4)(c) is invalid.
21
       The final question is whether RCW 46.61.506(4)(c) can be found
22
     unconstitutional while preserving the remainder of the ACT.
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     This court believes it can.   While the Legislature often times
24   includes a “Savings Clause”, they did not do so in this
25   particular Act.   Having said that, the Court’s inherent
     authority to strike an Act, or a portion thereof, is derived
                                   -6-        Rick Porter, Judge
                                              Clallam County District Court I
                                              223 East 4th St., Suite 10
                                              Port Angeles, WA    98362
                                              360-417-2560 Fax 360-417-2403
 1   from the Constitution; not the Legislature.     Furthermore,
 2   elimination of RCW 46.61.506(4)(c) would not render the
     remainder of the act incapable of accomplishing its Legislative
 3
     purpose. (See State v. Burke, 90 Wn. App. 378, 952 P.2d 619
 4
     (1998) generally.)    To the contrary, it would simply remove the
 5   inconsistent language and avoid the conflict with ER 401 and
 6   403.    As such, this court finds that RCW 46.61.506(4)(c) is
     invalid; while the remainder of the Act stands, as enacted by
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     the Legislature.
 8

 9
           MANDATORY REBUTTABLE PRESUMPTION ISSUE
10

11     The Defendants argue that the Act creates a rebuttable
     presumption.   Except as it relates to RCW 46.61.506(4)(c), this
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     court respectfully disagrees and will not belabor the matter
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     further.
14
                                  CONCLUSION
15

16          RCW 46.61.506(4)(c) is inconsistent with RCW
17   46.61.506(4)(a) and mandates the admissibility of DUI tests

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     regardless of their probative value; regardless of their
     prejudicial effect; and regardless whether the Defendant is
19
     deprived of a fair trial in violation of ER 401 and 403.
20   Therefore, this court holds that the RCW 46.61.506(4)(c) is
21   invalid; while the remainder of the Act stands as enacted by the

22
     Legislature.
            DATED this        day of February, 2005.
23

24                         _____________________
25                         Rick Porter, Judge
                           Clallam County District Court #1

                                    -7-        Rick Porter, Judge
                                               Clallam County District Court I
                                               223 East 4th St., Suite 10
                                               Port Angeles, WA    98362
                                               360-417-2560 Fax 360-417-2403

								
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