# State v. Straka > Washington Supreme Court · May 16, 1991 · 116 Wash. 2d 859 URL: https://www.frixlaw.com/law-library/cases/9573099 ## Case - **Full name:** The State of Washington, Respondent, v. Donald A. Straka, Appellant; The State of Washington, on the Relation of Seth R. Dawson, Petitioner, v. South District Court, Et Al, Respondents - **Court:** Washington Supreme Court - **Decided:** May 16, 1991 - **Citations:** 116 Wash. 2d 859; 810 P.2d 888; 1991 Wash. LEXIS 243 - **Precedential status:** Published - **Opinion:** Concurring in part by Smith - **Judges:** Brachtenbach, Smith, Utter - **Cited by:** 53 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9573099 ## Opinion text Smith, J. (concurring in part, dissenting in part)—Notwithstanding the harsh impact of invalidating results of BAC Verifier DataMaster tests, I disagree with the majority that the test results in Straka meet the requirements of law. I therefore dissent. The relevant facts in this case are not in dispute. Donald A. Straka was charged with driving while under the influence of alcohol. He agreed to submit to a breath alcohol analysis on a BAC Verifier DataMaster breath alcohol concentration measuring device. His test results were 0.18 percent/0.17 percent. Appellant Straka filed a motion to suppress the results of the BAC test because the state toxicologist had not published in the Washington Administrative Code protocols for *892 certifying and evaluating the DataMaster and for preparing the "external standard" or simulator solution used to verify the accuracy of the device between tests. The Snohomish i County District Court denied the motion. Appellant Straka was convicted upon stipulated facts 9 on May 15, 1990. He then filed a RALJ appeal which was certified to this court for direct review. We granted review. The case presents the question whether the District Court erred in admitting BAC Verifier DataMaster test results when the state toxicologist has not published in the Washington Administrative Code procedures and rules pursuant to the Washington administrative procedure act for the evaluation, certification, calibration, repair, maintenance, inspection, and cleaning of the breath testing machine; and for the formulation and testing and use of the simulator solution used in performing the test. The State argues that the office of the state toxicologist is not an "agency" and is therefore not required to publish procedures for DataMaster certification and preparation of the simulator solution in the Washington Administrative Code. RCW 34.05.010, a section of the Washington administrative procedure act (APA), provides the following relevant definitions: (2) "Agency" means any state board, commission, department, institution of higher education, or officer authorized by law to make rules or to conduct adjudicative proceedings . . .. (3) "Agency action" means licensing, the implementation or enforcement of a statute, the adoption or application of an agency rule or order, the imposition of sanctions, or the granting or withholding of benefits. (4) "Agency head" means the individual or body of individuals in whom the ultimate legal authority of the agency is vested by any provision of law. *893 (9)(a) "License" means a franchise, permit, certification, approval, registration, charter, or similar form of authorization required by law . . .. (15) "Rule" means any agency order, directive, or regulation of general applicability (a) the violation of which subjects a person to a penalty or administrative sanction; (b) which establishes, alters, or révokes any procedure, practice, or requirement relating to agency hearings; (c) which establishes, alters, or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law; (d) which establishes, alters, or revokes any qualifications or standards for the issuance, suspension, or revocation of licenses to pursue any commercial activity, trade or profession; or (e) which establishes, alters, or revokes any mandatory standards for any product or material which must be met before distribution or sale. The term . . . does not include (i) statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public Because of the variety of contexts in which the terms "office" and "officer" may be used, whether a given position is an office within the meaning of a particular statute must be determined in each case by considering the particular facts and circumstances involved. 10 This court has delineated five elements necessary to determine whether a position is a public office: (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature and by it placed under the general control of a superior officer or body; [and] (5) it *894 must have some permanency and continuity and not be only temporary or occasional.[ 11 ] The state toxicologist meets all elements of this test. The state toxicological laboratory is established under RCW 68.50.107 and is to be directed by: [T]he state toxicologist whose duty it will be to perform all necessary toxicologic procedures requested by all coroners, medical examiners, and prosecuting attorneys. The same statute establishes a 1-year term for the position of state toxicologist, but provides for an appointment to he made to the position annually. RCW 46.61.506(3) provides: Analysis of [a] person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 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. (Italics ours.) The state toxicologist also meets the APA definitions because the toxicologist issues "rules". 12 RCW 34.05.030 specifically identifies those agencies and boards excluded from the administrative procedure act. The office of the state toxicologist is not included in that group. RCW 34.05.030(4) states that "[a]ll other agencies, whether or not formerly specifically excluded from the provisions of all or any part of the Administrative Procedure Act, shall be subject to the entire act." Since the state toxicologist is not specifically excluded, the toxicologist is subject to the entire act. The act requires notice and *895 opportunity for public comment before an agency may adopt a rule. With respect to the BAC Verifier DataMaster, no "techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct [breath or blood alcohol tests]" are set forth in WAC 448-12. 13 What exists is only a brief and noninformative standardized process and procedure for the Data-Master. For example, WAC 448-12-210 states in its entirety: Pursuant to RCW 46.61.506—the BAC Verifier DataMaster infrared breath test instrument is approved by the state toxicologist as a device for the measurement of a person's breath for alcohol concentration. A simulator will be attached to each instrument and will provide a known external standard as defined in WAC 448-12-230. This simulator test will be run automatically between the two breath measurements. The simulator test will ensure the correct operation and calibration of the instrument. (Italics ours.) However, this "known external standard" 14 is not defined in WAC 448-12-230, which provides only (in relevant part): In conducting the test, the operator is to follow the instructions displayed by the instrument. The temperature of the solution in the simulation [i.e., the "known external standard"] must be 34 Centigrade, plus or minus .2 Centigrade, prior to the time the test is given. The reading from the simulator test must be between .090 and .110 inclusive. The results of the procedure will be provided in the form of a printout. These results indicate the grams of alcohol per two hundred ten liters of breath. Similarly, there are no WAC provisions for evaluation and certification of the machine. The WAC does not *896 include provisions for the repair, maintenance, inspection and cleaning of the DataMaster. Perhaps more significantly, the code does not include a method of preparing, testing, storing, transporting and installing the simulator solution. Here, the issue is whether the state toxicologist's unpublished protocols for preparation of the simulator solution and other unpublished DataMaster-related protocols are "rules" within the meaning of the APA and thus invalid because they were not adopted pursuant to formal rule-making procedures. Appellant Straka argues that to ensure fairness and an opportunity to challenge or duplicate the results of a test, necessary procedures must be published in the WAC and also argues that the failure to codify procedures for a standard implementation of the BAC Verifier DataMaster tests violates the APA. RCW 46.61.506(5) provides that a person whose breath or blood alcohol concentration has been tested may have additional private tests conducted. The purpose of this provision is to enable a defendant to challenge the validity of the prosecution's test results. 15 Here, it would not be possible to duplicate the DataMaster test because no published procedures exist for preparing the known external standard or for evaluating and certifying the DataMaster. Similarly, there are no published standards which would provide a defendant a basis for challenging a test operator's procedural compliance. By comparison, the WAC provisions governing the now outmoded Breathalyzer breath alcohol testing apparatus, WAC 448-12-010 through -100, and the WAC provisions for blood alcohol concentration testing, all of which are approved by the state toxicologist, are complete and detailed. The WAC provisions for the DataMaster are incomplete. The State was required to establish that the chemicals employed in a Breathalyzer test were of the correct kind *897 and compounded in correct proportions. 16 By analogy, the State must now present evidence establishing that the simulator solution used to "ensure correct operation and calibration of the [DataMaster]" 17 was of the correct kind and compounded in correct proportions. Since under WAC 448-12-210 this simulator solution ("known external standard") is to be defined in WAC 448-12-230, and since it is not defined there, the State cannot meet this burden of proof. Failure to comply with the state toxicologist's own published rule that the simulator solution to be used must be the one defined in WAC 448-12-230 renders the test results inadmissible. 18 The District Court erred in failing to suppress the BAC Verifier DataMaster test results. I would remand the Straka case for trial with instructions to suppress the BAC Verifier DataMaster test results. I do not disagree with the majority's conclusion in the Dawson case. Durham, J., concurs with Smith, J. Donald A. Straka drove his pickup truck around a police car which was stopped while the officer directed traffic at an accident scene. He struck traffic cones which had been placed on the roadway. He was unaware of what had happened. The interior of his truck was littered with beer cans. His reactions were observed to be very slow, with poor coordination. State ex rel. Brown v. Blew, 20 Wn.2d 47, 50-51 , 145 P.2d 554 (1944). State ex rel. Brown v. Blew, 20 Wn.2d 47, 51 , 145 P.2d 554 (1944) (quoting State ex rel. McIntosh v. Hutchinson, 187 Wash. 61 , 59 P.2d 1117 , 105 A.L.R. 1234 (1936) (quoting State ex rel. Barney v. Hawkins, 79 Mont. 506 , 257 P. 411 , 53 A.L.R. 583 (1927))). See State v. Ford, 110 Wn.2d 827, 831 , 755 P.2d 806 (1988). See RCW 46.61.506(3). The "external standard" is a standardized solution of 0.1 percent ethanol used to confirm proper calibration of the DataMaster between tests of persons' breath. There is no "recipe" in the WAC for preparing this solution. The WAC defines the "external standard" in terms of the reading it will produce on a Data-Master unit. See WAC 448-12-210. However, this presupposes that the unit is properly calibrated—the very characteristic of the DataMaster the simulator solution is intended to confirm. See State v. Stannard, 109 Wn.2d 29 , 742 P.2d 1244 (1987). State v. Baker, 56 Wn.2d 846, 852 , 355 P.2d 806 (1960). WAC 448-12-210. See State v. Watson, 51 Wn. App. 947, 756 P.2d 177 (1988) (failure to perform scheduled check of Breathalyzer apparatus renders test results inadmissible); State v. Ryan, 43 Wn. App. 488 , 717 P.2d 1390 (1986) (failure to use test Breathalyzer with ampul from same batch as that used to test defendant's breath renders test results inadmissible). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9573099. Public record. Not legal advice.