State v. Straka

*888 Utter, J.

(dissenting)—I agree with Justice Smith that the state toxicologist must publish the protocols for certifying and evaluating the DataMaster, and for preparing the simulator solution, in the Washington Administrative Code (hereinafter Code). I write separately to emphasize that those protocols are "rules" within the meaning of the administrative procedure act (hereinafter Act). 8 In concluding that the protocols are not rules, the majority narrowly interprets the language of the Act. This narrow interpretation conflicts with the principle that the Act is to be construed broadly to provide "greater public and legislative access to administrative decision making." RCW 34.05.001. Therefore, I dissent.

The determination of whether the Act applies involves two questions: (1) is the state toxicologist an "agency", and (2) are the protocols "rules"? I agree with Justice Smith's determination that the toxicologist is an agency within the meaning of the Act. As to the second question, a rule is:

any agency order, directive, or regulation of general applicability . . . (c) which establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law; ... or (e) which establishes, alters, or revokes any mandatory standards for any product or material which must be met before distribution or sale. . . .

RCW 34.05.010(15). Under that definition, anything that is directive in nature is a rule if it also falls within one of the five categories set out in RCW 34.05.010(15). Andersen, The 1988 Washington Administrative Procedure Act—An Introduction, 64 Wash. L. Rev. 781 , 790 (1989) (hereinafter Andersen). The protocols are directives. The question is whether they fall within one of the statute's five categories. I believe the protocols are rules within the meaning of RCW 34.05.010(15)(c) and (e).

RCW 34.05.010(15) (c) states that a directive is a rule if it "establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law". A person's privilege to drive is conferred *889 by law. That privilege will be suspended or revoked if a breath test that complies with RCW 46.61.506 shows that a driver has a blood alcohol level of .10 or higher. RCW 46.61.502; RCW 46.61.515(3). Therefore, the privilege to drive hinges upon the requirement that a driver not operate a motor vehicle when that driver's blood alcohol level is .10 or higher.

In order to show the driver's blood alcohol level, the State must prove that the DataMaster was in proper working order and that the chemicals used were of the correct kind and used in the correct manner. State v. Baker, 56 Wn.2d 846, 852 , 355 P.2d 806 (1960). The toxicologist's protocols direct state personnel how to evaluate and certify the DataMasters and mix the simulator solutions. Since proper testing of the DataMaster and mixing of the simulator solution is necessary to meet the requirements of Baker , the protocols affect requirements related to the privilege of driving. Therefore, the protocols are rules within the meaning of RCW 34.05.010(15)(c).

The protocols are also rules within the meaning of RCW 34.05.010(15)(e). That statute provides that a directive is a rule when it "establishes, alters or revokes any mandatory standards for any product or material which must be met before distribution or sale." The protocols establish the standards for mixing the simulator solution. Those standards must be met before the solution may be used in the individual DataMasters. Therefore, the protocols for the simulator solution are rules.

The majority's argument that such an interpretation would require an agency to publish its standards for letterhead stationery is incorrect. The Act's definition of "rule" specifically excludes internal management decisions "not affecting private rights or procedures available to the public". RCW 34.05.010(15). Nothing in the adoption of a letterhead affects any private rights of the public. The manner in which the State evaluates and certifies the DataMasters, however, and the rules for mixing and storing the simulator solution, directly affect the rights of the public. Proper *890 evaluation and certification of the individual machines, and correct handling of the simulator solution, is necessary to assure the accuracy of the breath test. Thus, any promulgation of rules regarding those procedures must comply with the Act.

The above interpretation of the Act is consistent with that statute's goals. The goals of the 1988 amendments to the Act were "increasing agency accountability, improving agency responsiveness . . . protecting agency discretion, improving the process of judicial review, and broadening the Act's coverage." Andersen, at 782. Holding that the protocols must be published in the Code increases agency accountability and improves agency responsiveness.

Publication in the Code also improves the process of judicial review and serves the cause of judicial economy. The record shows the protocols have changed frequently. Under the current system each trial judge must determine which protocol was in effect at the relevant time, whether that protocol was complied with, and whether it was scientifically valid. Publishing the protocols in the Code will facilitate the trial judge's decision. The appellate court's review will also be easier since publication in the Code will create presumptively reliable guidelines for the court to apply.

Requiring the toxicologist to publish the protocols does not significantly interfere with agency discretion. As Professor Andersen notes:

The inclusion of a matter within the definition of rule . . . does not significantly reduce the agency's power to set policy . . .. [IJncluding an agency process within the definition of rule requires only that the public be allowed to express its opinion on proposed rules before the agency makes its determination.

Andersen, at 790-91.

Finally, interpreting the protocols as rules is consistent with this court's decision in State v. Ford, 110 Wn.2d 827 , 755 P.2d 806 (1988). Ford upheld the toxicologist's initial selection of the DataMaster as being "approved" within the meaning of RCW 46.61.506(3), the same statute at issue *891 here. Justice Brachtenbach, writing for the majority, noted that the approval of the DataMaster was a "rule". 110 Wn.2d at 831 .

The majority's interpretation of these statutes is too narrow. The administrative procedure act should be construed broadly to meet the stated legislative goal of providing "greater public and legislative access to administrative decisionmaking." RCW 34.05.001.

The purpose of rulemaking procedures is to ensure that members of the public can participate meaningfully in the development of agency policy that affects them. When the questioned agency action will affect the public in a general way and where notice to and comment by the affected public seems useful, the action should be regarded as a rule.

Andersen, at 791.

A broad construction imposes no great burden on the state toxicologist, and it serves significant public purposes. Requiring publication in the Code assures public input, and therefore improves the agency's function. It also eases the burden of the trier of fact in determining what procedures must be followed to ensure accurate tests. Perhaps most important, formal rules published in the Code will help the courts insure that proper procedures are followed, and that thereby the due process rights of the accused are protected.

RCW 34.05.