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                           WHATCOM COUNTY, WA

CITY OF BELLINGHAM,                               )
                                    Plaintiff     )     Cause Nos. CB 39903
                                                  )                 CB 44073
                                                  )                 CB 46652
                             v.                   )       RULING ON
MARK BIDDISCOMBE (39903),                         )       MOTION TO SUPPRESS
SHAYE STRAW (46652), and                          )       BREATH TEST RESULTS
NATHAN SMITH (44073),                             )
                                    Defendants. )

       The Court, being fully informed, hereby makes the following ruling concerning
the above Defendants’ motions to suppress B.A.C. DataMaster results.


        Each of the above Defendants who participated in the motion to suppress, which
was consolidated for oral argument, was charged with Driving Under the Influence
(“D.U.I.”) after submitting samples of their breath for analysis by B.A.C. DataMaster
(“B.A.C.”) devices. Mr. Smith’s B.A.C. test was administered on May 15, 2004. Mr.
Straw’s B.A.C. test was administered on June 5, 2004. Mr. Biddiscombe’s B.A.C. test
was administered on August 15, 2003. Thus, all of the Defendants’ samples were taken
prior to the effective date of Senate House Bill No. 3055 (2004 Wash. Legis. Serv. Ch.
68), June 10, 2004. None of the cases have yet been to trial.

         Each Defendant argues that the breath test result should be suppressed for failure
to comply with RCW 46.61.506(4), as amended by S.H.B. 3055. In essence, the
Defendants argue that the relevant amendment in S.H.B. 3055 (1) should apply to all
cases tried after June 10, 2004, (2) requires the City to prove that simulator solutions used
to test the B.A.C. machines were measured by a “thermometer approved of by the state
toxicologist,”1 and (3) that the City can’t meet that foundational burden because the
Washington State Toxicologist did not adopt his Emergency Rule amending WAC 448-
13-020 (indicating approval of “thermometers used by the state toxicologist of
thermometers used in the breath alcohol testing program”) until its effective date of June
10, 2004. The City of Bellingham (“City”), in essence, replies that retroactive
application of S.H.B. 3055 to cases arising from B.A.C. tests administered before the

    RCW 46.61.506(4)(a)(iv).
effective date of that statute (1) would offend the Ex Post Facto Clauses of both the
United States Constitution (Art. 1, Sect. 10) and Washington State Constitution (Art. 1,
Sect. 23), (2) would offend the “savings statute,” RCW 10.01.040, and (3) does not
require suppression of the B.A.C. results because the devices were “certified,” which the
City argues is synonymous with “approved of by the state toxicologist.”


       To understand the nature of the parties’ complex arguments, it is helpful to first
review the legislative and administrative history. RCW 46.61.506(3), which was not
amended by S.H.B. 3055, provides:

        (3) Analysis of the person's blood or breath to be considered valid under
        the provisions of this section or RCW 46.61.502 or RCW 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.

        In adopting RCW 46.61.506(3), the Legislature conferred upon the Washington
State Toxicologist substantial rule-making authority that, in turn, established foundational
requirements for the admissibility of B.A.C. results. Through regulations, the Washington
State Toxicologist determined the type of device used (B.A.C. DataMaster), the
procedures to be employed by operators of the B.A.C. DataMaster, and the means by
which the B.A.C. DataMaster’s accuracy is verified. One of the components of the
breath-testing system used to ensure the accuracy of B.A.C. DataMaster results is the
simulator solution, which have been checked for years using mercury in glass

        Predictably and understandably, the D.U.I. defense bar in Washington State
sought to exclude breath-test results with a series of motions attacking virtually every
aspect of the breath testing process, from the machines’ software to the process by which
the thermometers are compared to national standards for the measurement of temperature.
Courts across the State produced a cornucopia of different rulings, diverse readings of
statutes and regulations, and conflicting results. A breath-test result that might be valid in
Walla Walla District Court could be invalid in Bellingham Municipal Court, or vice
versa, for a myriad of reasons. While many of these motions were found to be legally
meritorious by those in the judicial branch of government, including the undersigned,
they did little to ensure the confidence of the citizens or legislators of the State in the
breath-testing regime.

 See Declaration of Dr. Barry Logan, attached as Exhibit 1 to the “City’s Response to Defendant’s
Supplemental Briefing on Motion to Suppress Breath Test Result.”

       Into the fray stepped the Washington State Legislature. The Legislature made its
displeasure with the status quo, and its general intention, clear in S.H.B. 3055. Laws
2004, Ch. 68, Sect. 1 provides:

       The legislature finds that previous attempts to curtail the incidence of
       driving while intoxicated have been inadequate. The legislature further
       finds that property loss, injury, and death caused by drunken drivers
       continue at unacceptable levels. This act is intended to convey the
       seriousness with which the legislature views this problem. To that end the
       legislature seeks to ensure swift and certain consequences for those who
       drink and drive.

       To accomplish this goal, the legislature adopts standards governing the
       admissibility of tests of a person’s blood or breath. These standards will
       provide a degree of uniformity that is currently lacking, and will reduce
       the delays caused by challenges to various breath test instrument
       components and maintenance procedures.            Such challenges, while
       allowed, will no longer go to admissibility of test results. Instead, such
       challenges are to be considered by the finder of fact in deciding what
       weight to place upon an admitted blood or breath test result.

       To accomplish these goals, the Legislature included in S.H.B. 3055 a new
subsection, RCW 46.61.506(4) (emphasis supplied):

       (4)(a) A breath test performed by any instrument approved by the state
       toxicologist shall be admissible at trial or in an administrative proceeding
       if the prosecution or department produces prima facie evidence of the
       (i) The person who performed the test was authorized to perform such test
       by the state toxicologist;
       (ii) The person being tested did not vomit or have anything to eat, drink, or
       smoke for at least fifteen minutes prior to administration of the test;
       (iii) The person being tested did 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;
       (iv) Prior to the start of the test, the temperature of the simulator solution
       as measured by a thermometer approved of by the state toxicologist was
       thirty-four degrees centigrade plus or minus 0.3 degrees centigrade;
       (v) The internal standard test resulted in the message "verified";
       (vi) The two breath samples agree to within plus or minus ten percent of
       their mean to be determined by the method approved by the state
       (vii) The simulator external standard result did lie between .072 to .088
       inclusive; and
       (viii) All blank tests gave results of .000.

       (b) For purposes of this section, "prima facie evidence" is evidence of
       sufficient circumstances that would support a logical and reasonable
       inference of the facts sought to be proved. In assessing whether there is
       sufficient evidence of the foundational facts, the court or administrative
       tribunal is to assume the truth of the prosecution's or department's
       evidence and all reasonable inferences from it in a light most favorable to
       the prosecution or department.

       (c) Nothing in this section shall be deemed to prevent the subject of the
       test from challenging the reliability or accuracy of the test, the reliability
       or functioning of the instrument, or any maintenance procedures. Such
       challenges, however, shall not preclude the admissibility of the test once
       the prosecution or department has made a prima facie showing of the
       requirements contained in (a) of this subsection. Instead, such challenges
       may be considered by the trier of fact in determining what weight to give
       to the test result.

        The issue this Court must decide today results from the Legislature’s failure to
explicitly address the fact that there are thousands, perhaps tens of thousands, of breath
test results in Washington that were generated before the effective date of S.H.B. 3055,
June 10, 2004, but have yet to be tried. As a result, this Court and others must decide
whether S.H.B. 3055 should apply retroactively to those test results. Instead of resolving
that issue, S.H.B.’s authors, ironically, created the conditions for the very type of legal
battle over admissibility and inconsistent results they clearly sought to avoid by
proposing the legislation.

        The particular issue before this Court is whether it should apply S.H.B. 3055
retroactively to breath tests administered before its effective date of June 10, 2004. If the
law is retroactively applied, other issues must be resolved, including the ex post facto
argument, the savings statute argument, and the State’s argument that the thermometers
used in this case were “approved” by the State Toxicologist because they were “certified”
pursuant to administrative regulations in place before S.H.B. 3055.

        This Court is not the first to rule on the issue before it. As often happens in breath
test suppression motions, the same arguments are being advanced by learned counsel
from the Olympic Peninsula to the prairies of the Spokane Valley. While the reasons for
the Courts’ rulings on these similar motions differ from each other, none decided
suppression of breath test results was required by the new laws.

       Although the unpublished decisions from other courts of limited jurisdiction do
not constitute legal precedence, they are interesting reading. The learned Judge David
Kenworthy of the Pierce County District Court noted, as this Court has, dramatic
inconsistencies in the positions advanced by both sides. He ruled, referring to similar
decisions by Judge Culp of Okanogan County and our own very learned colleague,
Commissioner Tony Parise of Whatcom County District Court, that the amendment to
RCW 46.61.506(4) constitutes an ex post facto law. Judge Kenworthy also found that the

Legislature intended to “create a whole new field of play, not just groom the outfield in a
new stadium” by enacting S.H.B. 3055, which “divides the universe” into pre-S.H.B.
3055 cases, where thermometers must be “certified,” and post-S.H.B. 3055 cases, where
thermometers are both “certified” and “approved.” Therefore, S.H.B. 3055 was not
applied retroactively.

        Our southern neighbors, Judges Svaren and Skelton of Skagit County District
Court, addressed similar arguments, and arrived at the same results, but for very different
reasons. The Skagit County judges rejected the State’s ex post facto argument,
particularly because they believed RCW 446.61.506(4) “is nothing more than a wholesale
adoption of the standards already enunciated under WAC 448-13 which must be proven
by prima facie evidence before the breath test is admissible.” Because no significant
change in the quantum of proof occurred, the Ex Post Facto Clause was not offended, in
contrast to Judge Kenworthy and his predecessors’ conclusion. However, Judges Svaren
and Skelton agreed with the State’s argument, made by the City in our cases, that a
“certified” thermometer is an “approved” thermometer. That Court also noted that the
same thermometers which were approved by the State Toxicologist on June 10, 2004
were previously certified by the State Toxicologist and were the subject of many of the
challenges addressed by S.H.B. 3055. They concluded that the defense’s interpretation,
requiring a formal “approval” in addition to certification, “would defeat the purpose of
the amendments to RCW 46.61.506 and would be illogical in light of the toxicologist’s
obvious knowledge and approval of the use of mercury in glass thermometers in the
DataMaster for nearly two decades.” As a result, even though the Skagit County District
Court applied the laws retroactively, the suppression motions were ultimately denied.

        This Court is convinced that the motions before it turn primarily on legislative
intent. That is not to say that the parties have been so predisposed. Instead, the
Defendants’ opening briefs argue only briefly that S.H.B. 3055, as a rule of evidence,
should be applied retroactively and then launch into preemptive strikes on the anticipated
ex post facto arguments. The City, in turn, jumps on the ex post facto bandwagon while
countering with its arguments concerning the “savings statute” and the familiar claim that
“certified” and “approved” are synonyms.

        If S.H.B. 3055 is applied retroactively, then the City’s three arguments (ex post
facto, savings statute, and “certified means approved”) are relevant. If not, they are
moot. There is relatively little law presented by either side about this crucial issue of
retroactivity. The defense is content to rely upon one court case, State v. Clarke, 86
Wn.App. 447, 452 (1997), for the rule that “the rules of evidence at the time of trial
apply, not the rules at the time of the alleged crime.” The issue in Clarke, however, was

        In Clarke, the issue was not whether the evidentiary rules in effect at the time of
the crime for which the Defendant was charged (murder, and related offenses) was
committed governed, but whether the Defendant’s previous robbery conviction should be
admitted against him pursuant to ER 609(a)(2). When the robbery was committed, in
1986, it was not a crime of dishonesty. By the time of Clarke’s subsequent murder trial,

robbery was considered a crime of dishonesty under ER 609(a)(2). In this particular
context, the Court of Appeals stated that it “is the rules of evidence in effect at the time of
trial that control.” Clarke, 86 Wn.App. at 452. The Clarke Court’s cited authority for
this rule is United States v. Rivera Diaz, 538 F.2d 461, 464 (1st Cir. 1976). Curiously,
there is little explanation or reasoning in Rivera Diaz that supports this conclusion.

        Clarke does not control here. Clarke involved a judicial rule of evidence, a court
rule, rather than a statute. Clarke does not direct this Court to give retroactive effect to
any statute relating to evidence, particularly if such an application would frustrate the
stated legislative intent. To do so would constitute an intrusion by the Courts into the
law-making function of the Legislature. This Court would rather exercise judicial
restraint in dealing with questions of statutory construction. The Clarke Court was
undoubtedly aware that there was a vast line of cases discussing the retroactivity of
statutory amendments, but did not announce that the rules of evidence were an exception.
It had no reason to, as it was not discussing legislation. Thus, this Court does not view
Clarke as providing an exception to the well-worn rules of statutory construction.

        The primary goal of statutory construction is to carry out legislative intent. Cena
v. Department of Labor & Industries, 121 Wn.App. 915, 919 (2004). Accordingly, the
criteria for determining whether a statute is retroactively applied incorporate a
determination of statutory intent. The Washington Supreme Court recently summarized
the rules concerning retroactive application of statutes as follows:

       A statutory amendment will be applied retroactively, if constitutionally
       permissible under the circumstances, when it is (1) intended by the
       legislature to apply retroactively, (2) curative in that it clarifies or
       technically corrects ambiguous statutory language, or (3) remedial in
       nature. . .The Court may turn to the statute’s purpose and language,
       legislative history, and legislative bill reports to analyze retroactivity. An
       amendment is curative and remedial if it clarifies or technically corrects an
       ambiguous statute without changing prior case law constructions of the
       statute. . .This court generally disfavors retraoactive application of a

Barstad v. Stewart Title Guaranty Company, 145 Wn.2d 528, 536-37 (2002) (citations
and footnotes omitted).

        S.H.B. 3055 obviously does more than clarify or technically correct ambiguous
statutes. As Judge Kenworthy eloquently explained, the rule creates a whole new field of
play. S.H.B. 3055 mandates the admission of evidence that would, before its adoption,
have been excluded. That exclusion was not a result of mere ambiguity. Therefore, the
second scenario described in Barstad does not apply.

       What is interesting about this particular statutory construction issue is that, at first
glance, there appears to be a conflict between the first and third rules discussed in
Barstad. It is readily apparent when reading the legislative purpose, as Barstad would

have this Court do, that the Legislature intended more breath test results to reach juries,
not fewer. However, the defendants would presumably argue (although they have not),
that the statute is remedial in the sense that the Legislature was trying to fix the perceived
problem that too many breath test results were being excluded. When the legislative
intent favors prospective application but the statute is remedial, what is a Court to do?

       The Skagit County District Court judges had an interesting answer to this
question, although they didn’t frame it in quite the same way. They found the statute was
remedial, in fact that it was “patently obvious” the Legislature intended to be remedial,
and therefore they applied the law retroactively. However, they also felt that the
Legislature did not intend to require the State Toxicologist to formally approve the
thermometers as he has subsequently done by regulation. That Court felt that such a
requirement would frustrate the intent of the legislature and was illogical because the
thermometers already had the “approval” of the State Toxicologist.

        This Court answers the question a bit differently. The Court starts with the
primary rule of statutory construction, that its goal is to honor legislative intent. Cena,
Supra. It is obvious to the Court that the Legislature did not intend to exclude all breath
test results from before June 10, 2004. Such a holding would frustrate the express
purposes of S.H.B. 3055. It would not emphasize the seriousness of the Legislature’s
concern about D.U.I. It would undermine, not enhance, the swiftness and certainty of
punishment for those who drive impaired. It would invite delays and create non-uniform
outcomes, as those who successfully made the arguments presented here would often
escape punishment while those who failed to present the Defendant’s arguments, or
whose cases were tried before June 10, 2004, did not.

         As the Defendants point out, the State Toxicologist could not retroactively
approve the thermometers absent explicit authority. The Legislature is presumed to know
the law in the area it legislates, and that it had not conveyed such authority upon the State
Toxicologist. Therefore, the Legislature either (1) intended to apply the statute only
prospectively or (2) intended that the statute applied retroactively but that prior
certification of the thermometers was sufficient “approval”. Under either reading, the
breath test results would be admissible here. The only appreciable difference is that if the
latter interpretation were adopted, all challenges to the breath test results after June 10,
2004 would go to the weight of the evidence (as heard by the jury), not admissibility.
The Skagit County District Court’s ruling mandates such a result.

        This Court believes the Legislature meant the law to apply prospectively. The
Legislature stressed that it sought uniformity in outcomes. A prospective application
means that, regardless of the date of trial, all persons suspected of committing D.U.I. are
treated under the laws in effect at the time of their offenses. This is uniformity.

       The defense argument that the goal of uniformity is served by retroactive
application has only superficial appeal. If the law is retroactively applied, all cases tried
on the same day would have the same rules, but people are treated differently depending
on how fast they took their case to trial, a very arbitrary form of uniformity. More

importantly, uniformity isn’t the only goal described by the Legislature. The express
goal of swift and certain consequences for driving under the influence would be thwarted,
not enhanced, by the Defendants’ approach. If all breath tests prior to June 10, 2004
were excluded, the result could be called uniform, but the Legislature’s express desire to
punish and deter criminal behavior would be frustrated. Finally, this Court concurs with
Judge Kenworthy that S.H.B. 3055 was more than a minor amendment, and that the
Legislation sought to create an entirely new way of evaluating breath test results that
logically should logically apply prospectively.

        If there were any doubt remaining about the retroactivity of the statute, the issue
is resolved by the fact that retroactive statutes are disfavored in the law. Barstad, 145
Wn.2d at 538. Given the absence of any intent to apply the law retroactively, the absence
of a “curative” function as described in Barstad, and the fact that retroactive application
of the law (at least as the defense would require it, requiring retroactive and formal
“approval” of thermometers) would undermine any remedial purposes intended by the
Legislature, the Court finds that retroactive application is unwarranted. 3 Barstad, Supra.
In accordance with the rules of statutory construction and the intent of the Legislature,
the law will be applied prospectively, which means that the Defendant’s breath-test
results will be analyzed under the law in existence when they were obtained, not one
passed after the fact.

        The Court is tempted to decide the ex post facto and savings statute arguments.
The Defendants presented compelling arguments in both areas, and the Court appreciates
the valiant efforts of all counsel in arguing their respective positions. However, these
arguments presuppose that S.H.B. 3055 is retroactive, and are now moot. Further,
prospective application of S.H.B. 3055 renders the City’s argument that certification is
synonymous with approval moot. Therefore, while it appreciated the parties’ fine display
of advocacy, the Court makes no findings concerning the City’s three major arguments.


         The motions to suppress are hereby DENIED.

DATED this _______ of September, 2004.

                                                      PETE SMILEY,
                                                      Bellingham Municipal Court Commissioner

  The Court notes that, if it retroactively applied S.H.B. 3055, without requiring formal “approval” of the
thermometers the State Toxicologist has been certifying for years, other Defendants would likely make the
same ex post facto arguments here advanced by the City. It was certainly interesting to watch the City
argue a position normally supported by defendants, and vice versa.


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