Petition for Writ of Certiorari — Jensen v. City of Fircrest, Washington (No. 06-986)

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Sn The OFFICE OF THE CLERK

Supreme Court of the Gnited States

THEO JENSEN,

Petitioner,

CITY OF FIRCREST,

Respondent.

On Petition For A Writ Of Certiorari To The

Supreme Court Of The State Of Washington

PETITION FOR A WRIT OF CERTIORARI

LINDA M. CALLAHAN

407 N. Sixth Street, Shelton, WA

P.O. Box 1, Lilliwaup. WA 98555

Phone: (360) 426-8788

TED W. Vosk

8105 NE 140th PI.

Bothell, WA 98011

Phone: (425) 753-6343

LENELL R. NUSSBAUM

Counsel of Record

Market Place Two, Suite 200

2001 Western Ave.

Seattle, WA 98121

Phone: (206) 728-0996

Attorneys for Petitioner

Coe REE LAW BRIEF PRINTING ©

fCALL COLLECT $02) 542-2851

QUESTIONS PRESENTED

May a State Legislature enact a statute permitting

the admissibility of forensic test evidence that fails to

satisfy standards developed by the State and recognized

by the State to be necessary to ensure the reliability and

forensic acceptability of that evidence?

May a State Legislature enact a statute forbidding an

accused from challenging the admissibility of forensic test

evidence that fails to satisfy standards developed by the

State and recognized by the State to be necessary to

ensure the reliability and forensic acceptability of that

evidence?

May a State Legislature enact a statute permitting

prosecution and conviction of citizens based solely on

forensic test evidence that fails to satisfy standards

developed by the State and recognized by the State to be

necessary to ensure the reliability and forensic acceptabil-

ity of that evidence?

Does a statute enacted by a State Legislature that has

these characteristics violate the Due Process Clause of the

Fourteenth Amendment by affirmatively exempting

forensic test evidence from the requirement that evidence

must exhibit some minimum indicia of reliability before it

can be relied upon to deprive a citizen of his liberty? ~

Does a statute enacted by a State Legislature that has

these characteristics violate the Due Process Clause of the

Fourteenth Amendment by being fundamentally unfair

and/or so indifferent to an individual’s liberty interest as

to shock the conscience?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............:cccccssrerseeestreeseersnees i

TABLE OF AUTHORITIBG .......cccccccceseseccccsseccccssccecvccess v

SE MEAD UY ccsssevesceorsserevesosevenvecnceceoocsecesnennsseccsoees 1

ach sal isetesnsvesereayeesyersonesvsernevervewsevees 1

CONSTITUTIONAL PROVISIONS INVOLVED.......... 1

STATEMENT OF THI CASE. .......ccccccccsosscrcevsveceececcseeee 1

ITT 2 UNUEI ..scccusnertevenssnstovscesevecceesescvevenceee 1

ia ics ccncnasanttieseeocessosorsesonses 2

III. Washington State Supreme Court ................0008 2

REASONS FOR GRANTING THE PETITION....::s000000 3

L BURLY OF APmUMeOntss ........000ccrccreveossescosevesers 3

II. The State Court Decided An Important Ques-

tion Of Federal Law That Has Not Been, But

Should Be, Specifically Settled By This Court,

And Which Conflicts With Other Generally

Relevant Decisions Of This Court.................0008 4

A. Due Process And Evidence Generally ......... 4

B. Due Process And Forensic Breath Test

Evidence In Prosecutions For DU] ............. 11

C. Forensic Breath Test Evidence In Washington

Prior To Enactment of RCW 46.61.506(4)........ 14

D. Forensic Breath Test Evidence In Washington

After Enactment Of RCW 46.61.506(4) And

The Denial Of Due Process ...................0-000 20

ili

TABLE OF CONTENTS - Continued

Page

Ill. The Decision Of The State Court Conflicts

With The Decisions Of Another State Court Of

RN TE i hcnsitctiiclitiinbienieise i cae kaa 29

APPENDICES

APPENDIX A —- Final Order of the Washington Supreme

Court, City of Fircrest v. Jensen, No. 76738-6 (Oct. 5,

2006).

APPENDIX B — Conclusions of Law Entered by Trial

Court on Motion to Suppress (March 2, 2005).

APPENDIX C — RCW 46.61.506.

APPENDIX D — DUI Test Admissibility, Chapter 68,

Laws of 2004, SHB 3055 (2004).

APPENDIX E -— Initiative Measure No. 242, Laws of

1969.

APPENDIX F ~— RCW 46.61.503.

APPENDIX G — Judgment and Sentence of Trial Court

(March 2, 2005).

APPENDIX H —- Police Report Relied Upon in Stipulated

Trial.

APPENDIX I — Statement of Defendant on Submittal or

Stipulation to Facts (March 2, 2005).

APPENDIX J — WASHINGTON STATE PATROL BREATH TEST

SECTION, Policy and Procedure Manual, (2005).

' Iv

TABLE OF CONTENTS -— Continued

Page

APPENDIX K — WASHINGTON STATE TOXICOLOGY LABORA-

TORY, Procedure For The Preparation Of .08 Simulator

External Standard Solution For U:. With A Breath Test

Instrument (2005).

APPENDIX L ~ WASHINGTON STATE PATROL BREATH TEST

SECTION, Training Outline For DataMaster and PBT,

Operator Basic, (2004).

APPENDIX M - Partial Transcript of Oral Argument

Before Washington State Supreme Court in City of Fircrest

v. Jensen, No. 76738-6, (Argued Oct. 27, 2005).

TABLE OF AUTHORITIES

Page

CASES

Ake v. Oklahoma, 470 U.S. 68 (1985) ........cesseseeessevceeseeeeees 6

Alcorta v. State of Tex., 355 U.S. 28 (1957)........cssesscccceeee 10

Bartkus v. People of State of Ill., 359 U.S. 121

SUN INT vusisd sstcishishin-ipnacnsocedasutacuasianehunianicandacehntasianceuieidastmanaioes 5

Berger v. 0.8. FOB WS. TB (IGS) cccccrscscectecsnervecsvoveretiveess @

Blackburn v. State of Ala., 361 U.S. 199 (1960)................. 9

Bolden v. State, 967 S.W.2d 895 (Tex. App. 1998) .............. 7

Brewer v. Williams, 430 U.S. 387 (1977) ......c.cccccessccsseseoeees 8

Brown v. State of Mississippi, 297 U.S. 278 (1936).........+.. 9

Bullington v. Missouri, SOE TB, GEO (TOBE). cc ccceccsvecessvevyess 3

California v. Green, 399 U.S. 149 (1970)........ccc cc eeeecceeeeeeees 7

California v. Trombetta, 467 U.S. 479 (1984).......... ee 11

Carey v. Piphise, 486 U.S. Z4AT(1GTS) oc ccccpssecssevercescsssesesczves 6

Chambers v. Mississippi, 410 U.S. 284 (1973) .............00 10

Citizens for Financially Responsible Government v.

City of Spokane, 662 P.2d 845 (Wash. 1983)................. 20

City of Fircrest uv: Jensen, 143 P.3d 776 (Wash. :

I ik ncsneczparnusaccacseidaipranes Makiecieaeineaniied 1, 22, 23,25, 29

City of Seattle v. Allison, 59 P.3d 85 (Wash. 2002)...... 16, 19

City of Seattle v. Clark-Munoz, 93 P.3d 141 (Wash.

ati dctasaniipdseisistbinioatsndnasidiuieeebiesaapnamiempataatiied 15, 22

City of Sunnyside v. Fernandez, 799 P.2d 753

CN ORIG NI SUMEINE assis sds intesraceites nscesnekseensupadbdedveanehenienios 18

Com. v. Lucarini, 8 Pa..D. & C.3d 679 (Pa. Com. PI.

TABLE OF AUTHORITIES — Continued

Page

Cooper v. Oklahoma, 517 U.S. 348 (1996).........cccccsseeeeeeees 6

County of Sacramento v. Lewis, 523 U.S. 833 (1998)......... 4

Crane v. Kentucky, 476 U.S. 683 (1986) .........ceeseesereeeees 7

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

ee rink binavineviniecinontdlonebiiciienitmniiniontviniiiee 8, 26

Den ex dem. Murray v. Hoboken Land & Imp. Co.,

a Ar ee screntienices ecbbncshccleirsnomnetindctsaaeneoedaigienivantiiiia 4

Duncan v. State of La., 391 U.S. 145 (1968)............eeeceeeees 4

Dutton v. Evans, 400 U.S. 74 (1970)...........cccccecssessceseeeeeeees 7

Galvan v. Press, 347 U.S. 522 (1954)........ccccccoccescccsscccssseess 4

Hibben v. Smith, 191 U.S. 310 (1908) .......... eee ceeeeceeeeeeees 4

Holland v. Parker, 354 F.Supp. 196 (D.S.D. 1973)........... 20

Holmes v. South Carolina, __ U.S. _, 126 S.Ct.

SINE MEE: scv pices biiksiaisdbuiiacibtindiceaediinnipeleinemecmameseinaes 6, 10

Jackson v. Denno, 378 U.S. 368 (1964)......... eaainatl 5, 6, 9, 10

Lankford v, Idaho, 500 U.S. 110 (1991)......... eee eeeeeees 9, 27

Layton City v. Peronek, 803 P.2d 1294 (Utah App.

INI iis c3iacolks Geltnanetiloptiesnpeaiskedinwaanincimnientedsiaaaelle 13, 23, 30

Lego v. Twomey, 404 U.S. 477 (1972)...........cccccceeeeeeseees 10-11

Lisenba v. People of State of California, 314 U.S.

IE coksiescsicactnnicescesbionnidanibsscoiceniebaeienscometispamuieaasaineamaeagiois 5,6

Mack v. Cruikshank, 2 P.3d 100 (Ariz. App. 1999) ...12, 14, 30

Mackey v. Montrym, 443 U.S. 1 (1979).............ceessesseseeeeeees 6

Manson v. Brathwaite, 432 U.S. 98 (1977)... cece eeeeee eee 7

Medina v. California, 505 U.S. 437 (1992)... eeeeeeee 5

TABLE OF AUTHORITIES — Continued™

. Page

Meehan v. Kansas Dept. of Revenue, 959 P.2d 940

Ss FI: Siar incinds put chtesirintcuskbsintapnnits icivchilatestaiaiatbadimananes 12, 30

Montana v. Egelhoff, 518 U.S. 37 (1996) .....scescesessesseeee 6,10

Mooney v. Holohan, 294 U.S. 103 (1935)........... eee 6, 10

Moore v. Illinois, 434 U.S. 220 (1977).......ccccccsccccesseeees eS

Napue v. People of State of Ill., 360 U.S. 264 (1959).......... 9

Neil vu. Biggers, 408 U.S. 186 (1972) ....0..cc-ceeseccsevsessorseseesers 7

Nowell v. State Dept. of Motor Vehicles, 516 P.2d :

Se CPR BF cnicncndiaheiestinininnsieeitnandennctaionbicgionibnles 14, 20

Patterson v. New York, 432 U.S. 197 (1977) .............seeseeeeee 5

Powell v. State of Ala., 287 U.S. 45 (1932) ..........ccccceceeeseeee 6

Rochin v. California, 342 U.S. 165 (1952) ...scccssessssesssees 4,5

Rock v. Arkansas, 483 U.S. 44 (1987) ......... cee eeceeeeeee 10, 11

Schmerber v. California, 384 U.S. 757 (1966).................5 19

Skinner v. Railway Labor Executives’ Ass’n, 489

yk SE CIT vnncgvduinsivecscutiiehanubtntniaduiitailasiiiaiigsiainanieicabinas 20

State Bd. of Ins. v. Todd Shipyards Corp., 370 U.S.

GRE URED <obuithiagtiscsintinwiahantiehedalioaiiiiiienddmibateieibidieds aaadien 4

State v- Baker, 355 P.2d 806 (Wash. 1960) ..................000- 14

State v. Bostrom, 902 P.2d 157 (Wash. 1995).................... 19

State v. Busby, 893 So.2d 161 (La. App. 2005) ........... 13

State v. Dilliner, 569 S.E.2d 211 (W.Va. 2002) .........:000+ 13

State v. Felix, 479 P.2d 87 (Wash. 1971)................ 14, 15, 20

State v. Ferguson, 2S.W.3d 912 (Tenn. 1999)..................44 6

State v. Ford, 755 P.2d 806 (Wash. 1988) ................cceeeeeee 15

viil

TABLu OF AUTHORITIES - Continued

Page

State v. Garthe, 678 A.2d 153 (N.J. 1996)...........ccseeseseceees 12

State v. Haley, 689 A.2d 671 (N.H. 1997) ........... cs eeeeseeeeees 10

State v. Honeyman, 560 So.2d 825 (La. 1990)............. 13, 30

State v. Jayne, 24 P.3d 920 (Or. App. 2001)... ceeeseeees 12

State v. Krieg, 497 P.2d 621 (Wash. App. 1972)............00 19

State v. Lavaris, 707 P.2d 134 (Wash. App. 1985)............ 27

State v. McElroy, 553 So.2d 456 (La. 1989).............066 13, 30

State v. McElroy, 568 So.2d 1016 (La. 1990)............... 12; 13

State v. Michaels, 642 A.2d 1372 (N.J. 1994).............. 6, 7,8

State v. O’Key, 899 P.2d 663 (Or. 1995)...........cececeeeecesseeees 23

State v. Parker, 558 P.2d 1361 (Wash. 1976)......... 14, 19, 20

State v. Peterson, 674 P.2d 1251 (Wash. 1984) ...... 15, 19, 20

State v. Shuler, __ N.E.2d __, NO. 05CA8 at 2 (Ohio

Big: DOGG) svcicsncesissnvsichsstvinsticeliteisteckietantdagegevaiactodaadiiides 8

State v. Straka, 810 P.2d 888 (Wash. 1991)........... 17, 18, 19

State v. Superior Court In and For Thurston

County, 160 F. 92 CWP aats. TRIED ccccsescccescscestsonrvcrseatvssenene 20

State v. Watson, 756 P.2d 177 (Wash. App. 1988)............. 19

State v. Wetherell, 514 P.2d 1069 (Wash. 19793)................ 20

Taylor v. Illinois, 484 U.S. 400 (1988) ...........ccceeeceecseeeeeeeees 7

Thompson v. Louisville, 362 U.S. 199 (1960) «.............seeeeee 6

Tot v. United States, 319 U.S. 463 (1943) ..........cceecceeeee 6, 7

Townsend v. Burke, 334 U.S. 736 (1948) ...........ccccseceeeceeeeee 7

Tumey v. State of Ohio, 273 U.S. 510 (1927) ................ 9, 28

U.S. v. Lovasco, 431 U.S. 783 (1977) bee ae OW Dal OEE PT 9

TABLE OF AUTHORITIES ~— Continued

Page

U.S. v. Addison, 498 F.2d 741 (D.C. Cir. 1974)................. 12

Sires Oe POONER, 422 Us. SEO (GTS) .00ccccerecsovsrsceseseeserseseseees 6

U.S. v. Scheffer, 523 U.S. 303 (1998).............cessecceeeeees 7,8,9

Wardius v. Oregon, 412 U.S. 470 (1973) ...........ceceeeeeeeeeeeee 10

Washington v. Texas, 388 U.S. 14 (1967) ...........ccceeceeeeeeeee 10

White v. Illinois, 502 U.S. 346 (1992) ...........ccsccccrsesececeeesees 7

Williams v. Illinois, 399 U.S. 235 (1970) .......sesssseseseeesneeeee 5

Wolff v. McDonnell, 418 U.S. 539 (1974) ....... ccc eeteeseeeeeeee 4

CONSTITUTIONAL PROVISIONS

I MINIT EY ccnnncessnessrvevneshbesevsssereveseeseosees passim

STATUTES

SESE SS 1

a. ccs neeensunaueponcettoncescousvecse 19

SSE EER ee 1, 2, 12, 20

as inn a crkstenebyvieusernvereveeveseeveseseveess passim

REGULATIONS

_ WAC 448-13-010 (repealed Oct 23, 2004) 0.0... eeeeees 15

os sun suenubecseindeoevareveceens 15

i covaninnunneuveseeversesvonevaces 16

SSS ERS 18

WASHINGTON STATE PATROL BREATH TEST SECTION,

Policy and Procedure Manual, 1 (2005) .............ccseeeeeeee 15

TABLE OF AUTHORITIES — Continued

WASHINGTON STATE PATROL BREATH TEST SECTION,

Training Outline For DataMaster and PBT,

Operator Basic, 27 (2004).......cccccccseseres saeliinsinababaneiaie 16

WASHINGTON STATE ‘TOXICOLOGY LABORATORY,

Procedure For The Preparation Of .08 Simulator

External Standard Solution For Use With A

Breath Test Instrument (20085) ...........ccsccsseceseeeeeeeeees 17,18

RULES

CREE Deh cccccnrsncreicstoviettiinaiisiniiaiieaamadiamammioal 28, 29

SE, FOO TO sesriiicsisincisssianictceninniaaeiia 3, 29, 30

CONGRESSIONAL RECORD

133 Cong. Rec. E141-03 (1987) (statement by

Astivar C. Cilarite, sciexttint) ...<.ccercccccceccvecessscsscesscescencoes 24

141 Cong. Rec. H4690-4753 (daily ed. May 10,

1995) (statement of Rep. Zimmer)...........ccccecseeeeereceseees 24

OTHER AUTHORITIES

Eric Weisstein, CRC CONCISE ENCYCLOPEDIA OF

TI, Ce ciesiccactcctncansdaiibittuineiaitetenibeniaaine .. 24

Jan Gullberg, MATHEMATICS: FROM THE BIRTH OF

OE BI Ce divincistanecdnlatisatistionnsdsvisitianldeintiaintbeniialiae 24

Jerold Israel, Free-Standing Due Process and

Criminal Procedure: The Supreme Court’s Search

for Interpretive Guidelines, 45 St. Louis L.J. 303,

GRE ABGG AD) vvvsciccccsrevnes tsb pisieechiesabecilaisaiiidiuioliadiaacmcnadiemhiianies 5,6

TABLE OF AUTHORITIES — Continued

Page

Patrick Harding, Methods for Breath Analysis, in

MEDICAL-LEGAL ASPECTS OF ALCOHOL 185, 187 an

(James Garriott ed., 4th ed. 2003).................005. 16, 17, 18

Recommended Standards and Procedures of The

Canadian Society of Forensic Science Alcohol Test

Committee, 36(3) Soc. FORENS. Sci. J. 101, 113

SoTIPT i cusicnaistdeilocncurele Sistaiainesangndunntauaiabeiiadniiadaiaraumedinbiiaimes 24

Walter Schaefer, Federalism and State Criminal

Procedure, 70 HARV. L. REV. 1, 6 (1956)

OPINION BELOW

The opinion of the Washington Supreme Court is

reported at __-. Wn.2d ___, 143 P.3d 776 (Wash. 2006), and

is attached at Appendix A. The Washington Supreme

Court heard the case on direct review from the trial court.

The order of the trial court is unpublished.

JURISDICTION

The Washington Supreme Court issued its opinion on

October 5, 2006. This Court’s jurisdiction is invoked under

28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

This case presents questions under the Due Process

Clause of the Fourteenth Amendment which states in rele- -

vant part that “[nlo State shall ... deprive any person of life,

liberty, or property, without due process of law.” U.S. Const.

amend. XIV. Mr. Jensen challenges the constitutionality of

RCW 46.61.506(4) under the Fourteenth Amendment.

STATEMENT OF THE CASE

I. Substantive Facts

On March 22, 2004, the Washington Legislature

enacted Substitute House Bill 3055, codified in relevant

part at RCW 46.61.506(4). App. D. On October 23, 2004

Officer LaTour observed Theo Jensen driving 49 mph in a

35 mph zone in the City of Fircrest. App. H9. He stopped

Mr. Jensen and smelled alcohol. App. H9. He arrested Mr.

Jensen for Driver Under Twenty-One Consuming Alcohol,

RCW 46.61.503. App. H1, H10. Mr. Jensen’s subsequent

breath test yielded results of .043 and .042. App. H12.

II. Trial Court

The City charged Mr. Jensen under RCW 46.61.503.

App. G1, H1. A person is guilty of this offense if he is under

21 and has operated a car with “an alcohol concentration of

at least 0.02 ... as shown by analysis of the person’s breath

... made under RCW 46.61.506.” RCW 46.61.503(1)(b). Mr.

Jensen moved to suppress the breath test, challenging the

constitutionality of RCW 46.61.506(4) on Federal Due

Process grounds. The court denied the motion and entered

written conclusions of law. App. B. Although Mr. Jensen

claimed to be wearing a tongue ring at the time of his test,

which would have necessitated suppression of the results, he

was precluded from raising this challenge by the newly

adopted provision. App. M5. Mr. Jensen stipulated to facts,

submitted to a bench trial and was convicted under RCW

46.61.503 on the sole basis that his breath test results

exceeded .02 BAC. App. G, H and I.

III. Washington State Supreme Court

Mr. Jensen argued that RCW 46.61.506(4) violated the

Due Process Clause of the Fourteenth Amendment by provid-

ing for the admissibility of, and conviction based solely upon,

forensic breath test evidence the State recognizes does not

satisfy the minimum standards developed by the State, and

which are recognized by the State to be necessary to ensure

the reliability and forensic acceptability of that evidence. App.

A16. The Court rejected the argument explaining:

The courts need not assess the reliability of the sci-

entific evidence ... The appellant argues that under

the federal and state constitutions, he is entitled to

a fair trial, including a right to be convicted by reli-

able evidence. He argues that SHB 3055 violates his

rights because it admits unreliable evidence . .. The

appellant's argument is without merit ... [The Act]

does not ... offend due process as embodied in both

the state and federal constitutions.

App. A13-A17.

REASONS FOR GRANTING PETITION

The Washington Supreme Court decided an important

question of federal law that has not been, but should be,

specifically settled by this Court, and which conflicts with

other generally relevant decisions of this Court. The

decision of the State Court also conflicts with the decisions

of another state court of last resort. This satisfies the

general criteria for granting certiorari from a decision of a

state court of last resort. U.S.Sup.Ct. Rule 10(b), (c);

Bullington v. Missouri, 451 U.S. 430, 431 (1981).

I. Summary Of Arguments

RCW 46.61.506(4) permits admissibility of forensic

breath test evidence that fails to satisfy standards devel-

oped by the State, and which are recognized by the State

to be necessary to ensure the reliability and forensic

acceptability of that evidence. It also precludes an accused

from challenging the admissibility of this evidence even

where it is known not to satisfy the standards developed

by the State and recognized by the State to be necessary to

ensure the reliability and forensic acceptability of that

evidence. Finally, it permits prosecution and conviction of

citizens based solely on such tests even where known not

to satisfy the standards developed by the State and recog-

nized by the State to be necessary to ensure the reliability

and forensic acceptability of that evidence.

Under the Fourteenth Amendment, before forensic

breath test evidence can be admitted to a jury, an accused

has the right to have the State present evidence of compli-

ance with those standards developed by the State and

recognized by the State to be necessary to ensure the

reliability and forensic acceptability of that test. Due

process requires both that the evidence used in a prosecu-

tion contain some minimum indicia of reliability and that

each accused be afforded fundamental procedural fairness.

RCW 46.61.506(4) deprives the accused of both of these

protections and therefore is violative of the Due Process

Clause of the Fourteenth Amendment.

II. The State Court Decided An Important Ques-

tion Of Federal Law That Has Not Been, But

Should Be, Specifically Settled By This Court,

And Which Conflicts With Other Generally

Relevant Decisions Of This Court.

‘ A. Due Process And Evidence Generally — The —

Fourteenth Amendment commands that “[nlo State shall

... deprive any person of life, liberty, or property, without = -

due process of law.” U.S. CONST. amend. XIV. This guaran-

tee “operates to extend to the citizens and residents of the

states ... protection against arbitrary state legislation

affecting life, liberty, and property.” Hibben v. Smith, 191

U.S. 310, 325 (1903); Wolff v. McDonnell, 418 U.S. 539, 558

(1974). Under it, “lilt is manifest that it was not left to the

legislative power to enact any process which might be

devised. [Due process] is a restraint on the legislative ...

powers of the government, and cannot be so construed as

to leave [the legislature] free to make any process ‘due

process of law,’ by its mere will.” Den ex dem. Murray v.

Hoboken Land & Imp. Co., 59 U.S. 272, 276 (1855); State

Bd. of Ins. v. Todd Shipyards Corp., 370 U.S. 451, 457

(1962).

The question is whether the statute under considera-

tion is in accord with those procedures deemed “necessary

to an Anglo-American regime of ordered liberty.” Duncan

v. State of La., 391 U.S. 145, 149 n.14 (1968). “[Flair play

. is the essence of due process.” Galvan v. Press, 347

U.S. 522, 530 (1954). Due process is violated where state

actions “offend those canons of decency and fairness which

express the notions of justice of English-speaking peoples.”

Rochin v. California, 342 U.S. 165, 169 (1952). This

includes actions resulting “in a denial of fundamental

procedural fairness” or which exhibit indifference of such

magnitude that it shocks the conscience. County of Sacra-

mento v. Lewis, 523 U.S. 833, 845-6, 850-2 (1998).

“{Njeither the antiquity of a practice nor the fact of

steadfast legislative and judicial adherence to it through

the centuries insulates it from constitutional attack.”

Williams v. Illinois, 399 U.S. 235, 239 (1970). “In each case

‘due process of law’ requires an evaluation based on a

disinterested inquiry pursued in the spirit of science ...

duly mindful of reconciling the needs both of continuity

and of change in a progressive society.” Rochin at 172.

Even though a particular practice has been historically

accepted “[tlechnological change or a refinement in our

sense of justice may make their retention intolerable.”

Walter Schaefer, Federalism and State Criminal Proce-

dure, 70 HARV. L. REv. 1, 6 (1956); Jackson v. Denno, 378

U.S. 368, 390 (1964).

“[P]reventing and dealing with crime is much more

the business of the States than it is of the Federal Gov-

ernment... it is normally ‘within the power of the State to

regulate procedures under which its laws are carried out,

including [those pertaining to] evidence.’” Patterson v.

New York, 432 U.S. 197, 201 (1977). “([Blecause the States

have considerable expertise in matters of criminal proce-

dure and the criminal process is grounded in centuries of

common-law tradition, it is appropriate to exercise sub-

stantial deference to legislative judgments in this area.”

Medina v. California, 505 U.S. 437, 445-6 (1992). Nonethe-

less, criminal proceedings in state courts are still subject

to the guarantee of due process contained in the

Fourteenth Amendment. Bartkus v. People of State of Iil.,

359 U.S. 121, 124 (1959).

“As applied to a criminal trial, denial of due process is

the failure to observe that fundamental fairness essential

to the very concept of justice.” Lisenba v. People of State of

California, 314 U.S. 219, 236 (1941). “In applying the

fundamental fairness standard, the [Court looks] not only

to historical practice, but also to the logical implications of

a basic principle of fairness.” Jerold Israel, Free-Standing

Due Process and Criminal Procedure: The Supreme Court’s

Search for Interpretive Guidelines, 45 St. Louis L.J. 303,

423 (2001). When demanded by “fundamental principles of

liberty and justice,” even long accepted practices must be

abandoned and new ones mandated. Powell v. State of

Ala., 287 U.S. 45, 63 (1932)."

“{A] primary function of legal process is to minimize

the risk of erroneous decisions.” Mackey v. Montrym, 443

U.S. 1, 7 (1979). In general, “due process [is] meant to

protect persons ... from the mistaken or unjustified

deprivation of life, liberty, or property.” Carey v. Piphus,

435 U.S. 247, 259 (1978).

In a state criminal prosecution, not only is an individ-

ual’s “interest in the accuracy of a criminal proceeding...

almost uniquely compelling,” but the state also has a

significant “interest in the fair and accurate adjudication

of criminal cases.” Ake v. Oklahoma, 470 U.S. 68, 78-9

(1985). Accordingly, due process analysis tends to “focus on

the value of adjudicatory fairness ... looking primarily to

protect against the conviction of the innocent.” Israel,

supra, at 397 and n.549; Cf., U.S. v. Nobles, 422 U.S. 225,

230 (1975). Practices that directly threaten the accuracy of

the fact-finding process betray this concern and generally

run afoul of due process requirements.’ Thompson v.

Louisville, 362 U.S. 199 (1960); Tot v. United States, 319

U.S. 463 (1943); Mooney v. Holohan, 294 U.S. 103 (1935).

The Fourteenth Amendment leaves states free to

adopt rules of evidence governing criminal prosecutions.

Lisenba at 236. As with all other phases of criminal

proceedings, however, these rules and their enforcement

are not exempt from the requirements of due process. /d.;

see also, Holmes v. South Carolina, __ U.S. __, 126 S.Ct.

1727, 1728 (2006); Montana v. -Egelhoff, 518 U.S. 37, 53

' Cooper v. Oklahoma, 517 U.S. 348 (1996) (pretrial hearing on

competence); Jackson v. Denno, 378 U.S. 368 (1964) (pretrial determi-

nation of voluntariness of confession. ).

* State v. Michaels, 642 A.2d 1372, 1381 (N.J. 1994).

* State v. Ferguson, 2 S.W.3d 912, 914 n.3 (Tenn. 1999).

(1996); Dutton v. Evans, 400 U.S. 74, 223 and n.4 (1970)

(Blackmun, J., concurring). The Fourteenth Amendment

sets limits on the rules of evidence that may be enacted by

a state legislature. Tot at 467. Whether state evidentiary

procedures violate due process standards generally rests

on one of two factors: reliability and/or fairness.

An individual’s right to a fair trial is in part contin-

gent upon his ability to present “competent, reliable

evidence.” Crane v. Kentucky, 476 U.S. 683, 690 (1986).

“State ... Governments [also] unquestionably have a

legitimate interest in ensuring that reliable evidence is

presented to the trier of fact in a Criminal trial.” U.S. v.

Scheffer, 523 U.S. 303, 309 (1998). In fact, “[t]he integrity

of the adversary process [itself] depends both on the

presentation of reliable evidence and the rejection of

unreliable evidence.” Taylor v. Illinois, 484 U.S. 400, 414-

5 (1988). Accordingly, “[rleliability is ... properly a due

process concern.” White v. Illinois, 502 U.S. 346, 363-4

(1992) (Thomas, J., concurring).

Due process does not permit a conviction based on

evidence lacking the requisite degree of reliability. Cali-

fornia v. Green, 399 U.S. 149, 163 n.15 (1970); Green, 399

U.S. at 186 n.20 (Harlan, J., concurring). For this reason,

“reliability is the linchpin in determining the admissibil-

ity” of evidence under the Fourteenth Amendment.’

Manson v. Brathwaite, 432 U.S. 98, 114 (1977). To satisfy

due process, evidence admitted against a defendant must

carry some minimum indicia of reliability. Manson at 114;

Moore v. Illinois, 434 U.S. 220, 227 (1977); Neil v. Biggers,

409 U.S. 188, 198 (1972); Cf., Townsend v. Burke, 334 U.S.

736, 741 (1948). Due process requires that evidence be

excluded where it is “essential to safeguard the integrity of

* Bolden v. State, 967 S.W.2d 895, 899 (Tex. App. 1998).

* Michaels, note 2 (“reliable evidence remains at the foundation of

a fair trial ... If crucial inculpatory evidence is alleged to have been

derived from unreliable sources due process interests are at risk.”).

the truth-seeking process.” Brewer v. Williams, 430 U.S.

387, 425 (1977) (Burger, J., dissenting); Moore at 227. —

The unique significance placed on the reliability of

forensic evidence is illustrated by the principle, enunciated

in Scheffer, that even a defendant’s right to present a

defense under the Constitution may be superseded by the

need to ensure that evidence presented to a jury is suffi-

ciently reliable.’ In Scheffer, the defendant challenged a

rule placing a blanket prohibition on the introduction of

polygraph evidence at trial. He presented evidence con-

cerning the reliability of polygraph tests and argued that

his rights under the Fifth and Sixth Amendments included

the right to present the results of such tests. The Court

found that the blanket exclusion did “not unconstitution-

ally abridge the right to present a defense.” Scheffer at

317.

The Court pointed out that “[a] defendant’s right to

present relevant evidence is not unlimited, but rather is

subject to reasonable restrictions.” Scheffer at 308. It then

made clear that among the proper basis for such a restric-

tion was the state’s legitimate interest in “ensuring that

only reliable evidence is introduced at trial” and that “the

exclusion of unreliable evidence is a principal objective of

many evidentiary rules.” Jd. at 309. Although acknowledg-

ing the evidence presented by the defendant in favor of

polygraph testing,-the Court noted “there is simply no

consensus that polygraph evidence is reliable.” Jd. It then

concluded that “{ajlthough the degree of reliability of

polygraph evidence may depend upon a variety of identifi-

able factors,” the rule “excluding polygraph evidence in all

* Michaels, note 2.

” State v. Shuler, ___ N.E.2d ___, NO. 05CA8 at 2 (Ohio App. 2006)

(lack of evidential reliability provides a basis for excluding [portable

breath test] results from admissibility at trial.”).

* Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589

(1993) (“trial judge must ensure ... scientific testimony or evidence

admitted is ... reliable.”).

... trials is a rational and proportional means of advanc-

ing the legitimate interest in barring unreliable evidence.”

Id. at 312.

It is also well “established that the fourteenth

amendment forbids ‘fundamental unfairness in the use of

evidence whether true or false.’” Blackburn v. State of

Ala., 361 U.S. 199, 206 (1960). The aim is not to exclude

presumptively false evidence, but to prevent fundamental

unfairness in the use of evidence regardless of its truth

value. Id.; Denno at 376. Due process is violated where a

practice fails to adhere to those “fundamental conceptions

of justice which lie at the base of our civil and political

institutions and which define the community’s sense of fair

play and decency.” U.S. v. Lovasco, 431 U.S. 783, 790

(1977); Brown v. State of Mississippi, 297 U.S. 278, 286

(1936).

Due process represents “a profound attitude of fair-

ness between ... the individual and government.”

Lankford v. Idaho, 500 U.S. 110, 121 (1991). “Every

procedure which ... might lead [a judge] not to hold the

balance nice, clear, and true between the state and the

accused denies the latter due process of law.” Tumey uv.

State of Ohio, 273 U.S. 510, 532 (1927). Each state’s

“interest ... in a criminal prosecution is not that it shall

win a case, but that justice shall be done ... while [the

state] may strike hard blows, [it] is not at liberty to strike

foul ones. It is as much [its] duty to refrain from improper

methods calculated to produce a wrongful conviction as it

is to use every legitimate means to bring about a just one.”

Berger v. U.S., 295 U.S. 78, 88 (1935).

“The principle that a State may not knowingly use

false evidence ... to obtain a tainted conviction [is] im-

plicit in any concept of ordered liberty.” Napue v. People of

State of Ill., 360 U.S. 264, 269 (1959). Thus, practices

which permit convictions based on knowingly false or

misleading evidence, even if not solicited, violate a defen-

dant’s rights under the Fourteenth Amendment. Id. at

269; Alcorta v. State of Tex., 355 U.S. 28, 31-2 (1957);

Mooney at 112-3.

Under the fundamental fairness prong, a citizen’s

Fourteenth Amendment rights are also “abridged by

evidence rules that infringe upon a weighty interest of the

accused and are arbitrary or disproportionate to the

purposes they are designed to serve.” Holmes at 1731;

Rock v. Arkansas, 483 U.S. 44, 58 (1987); Chambers v.

Mississippi, 410 U.S. 284, 297, 303 (1973). This includes

statutes that establish “arbitrary” evidentiary standards

that favor the state but yield results contrary to what the

nature of the evidence would otherwise dictate under the

rules of evidence. Washington v. Texas, 388 U.S. 14, 24-5

(1967) (Harlan, J., concurring). While this does not bar

states from enacting provisions that have the incidental

“effect of making it easier ... to obtain convictions, an

evidentiary rule whose sole purpose is to boost the State’s

likelihood of conviction distorts the adversary process.”

Egelhoff at 68 (O’Connor, J., dissenting). The “Court has

therefore been particularly suspicious of state trial rules

which provide nonreciprocal benefits to the State.” War-

dius v. Oregon, 412 U.S. 470, 475-6 (1973). The State may

not insist that trials be run as a “search for truth” so far as

defense evidence is concerned, while granting the prosecu-

tion the advantage of using evidence as if part of a “poker

game”: this is “fundamentally unfair.” Id.

Finally, it is well established that once jurors have

been exposed to damning evidence, it is difficult, if not

impossible, to keep it from entering their minds during

deliberations.’ Denno at 388. As a result, issues of admis-

sibility under the Fourteenth Amendment are solely

within the province of the trial judge and should be deter-

mined outside the presence of the jury. Id. at 389-94; Lego

* State v. Haley, 689 A.2d 671, 674 (N.H. 1997) (“private interest

affected by a pretrial hearing on the admissibility of evidence is

important ... conviction may hinge on the admission or exclusion of

certain evidence.”).

v. Twomey, 404 U.S. 477, 489-90 (1972). Moreover, a

statute establishing a per se rule in such proceedings,

precluding a judge from considering evidence presented by

the defendant concerning the reliability of the evidence

sought to be introduced at trial, may well run afoul of the

dictates of due process. Rock at 56-7 and n.12.

B. Due Process And Forensic Breath Test

Evidence In Prosecutions For DUI — This Court has

addressed the admissibility of forensic breath test evi-

dence in the context of a prosecution for DUI on only one

prior occasion. California v. Trombetta, 467 U.S. 479

(1984). The question before the Court was whether the

Fourteenth Amendment demanded that states preserve

breath samples for defendants. Jd. at 481. Although

Trombetta is not directly on point, the Court made several

relevant observations.

First, it recognized that “[ujJnder the Due Process

Clause of the Fourteenth Amendment, [DUI] prosecutions

must comport with prevailing notions of fundamental

fairness ... protecting the innocent from erroneous convic-

tion and ensuring the integrity of our criminal justice

system.” Trombetta at 485. It then determined that this

included evidentiary protections beyond simple “protection

against perjury.” Jd. Finally, after discussing the particu-

lar procedures employed in obtaining the breath tests

under consideration, the Court commented:

The materiality of breath samples is directly re-

lated to the reliability of the Intoxilyzer itself.

The degree to which preserved samples are ma-

terial depends on how reliable the Intoxilyzer is.

This correlation suggests that a more direct con-

stitutional attack might be made on the suffi-

ciency of the evidence underlying the State’s

case. After all, if the Intoxilyzer were truly prone

to erroneous readings, then Intoxilyzer results

without more might be insufficient to establish

guilt beyond a reasonable doubt.

Trombetta at 489 n.10.

In a prosecution for DUI, forensic breath “test results

are ‘virtually dispositive of guilt or innocence.’” Mack v.

Cruikshank, 2 P.3d 100, 104 (Ariz. App. 1999)."° This is so

even where the state is not prosecuting under the per se

prong of a DUI statute because most jurors “would con-

clude that a person with [a] reading [in excess of the per se

limit] was intoxicated when it was taken, in the absence of

substantial evidence to the contrary.” State v. McElroy,

568 So.2d 1016, 1016-7 (La. 1990) (Dennis, J., concurring).

“Since the presentation of countervailing evidence would

be necessary to dissuade the fact-finder of the defendant’s

guilt, the effect of introducing [breath test] evidence [is

that] The burden of proof is shifted to the defendant.” Jd.

Absent countervailing evidence, “[a] citizen’s right to drive,

and sometimes to liberty, will depend on the verdict of a

machine.”” State v. Garthe, 678 A.2d 153, 158 (N.J. 1996).

‘As a result of these considerations, “due process

requires that the state ensure that the tests it demands

drivers submit to produce reasonably accurate results.”

Mack at 104. Although a state may enact statutes govern-

ing the admissibility of breath test evidence, “the court

must ascertain whether the statute|s] ... establishing the

reliability of breath testing ... are contrary to due proc-

ess.” Meehan v. Kansas Dept. of Revenue, 959 P.2d 940, 943

(Kan. App. 1998). “[Clonstitutional due process clearly

requires courts to take a hard look at the admissibility of

scientific test evidence that is regularly used against

citizens in criminal and administrative cases by the

° In the case at bar, the breath test result was dispositive under

RCW 46.61.503. See also, State v. Jayne, 24 P.3d 920, 926 (Or. App.

2001) (“[G]iven the significant weight that a jury is likely to accord this

type of evidence (urinalysis test) the potential for prejudice ... is

high.”).

" “(S]cientific proof may .. . assume a posture of mystic infallibility

in the eyes of a jury of laymen.” U.S. v. Addison, 498 F.2d 741, 744 (D.C.

Cir. 1974).

State.” Cf., State v. Dilliner, 569 S.E.2d 211, 224 (W.Va.

2002) (Starcher, J., concurring) (HGN).

“In order for the results of a blood alcohol test to be

admissible [then], the state must prove that the reliability

of the test satisfies due process and fairness.” State v.

Honeyman, 560 So.2d 825, 829 (La. 1990). Due process

grants to each defendant the right to have the state

demonstrate conformity with standards of testing and

administration that produce a “residuum of competent

evidence of reliability of the breath test.” Layton City v.

Peronek, 803 P.2d 1294, 1300 (Utah App. 1990).

Even assuming appropriate standards, when “a

defendant takes issue with the qualifications of the techni-

cian, the quality of the testing machine, or the mainte-

nance of the equipment, and so forth, the court, in the

interest of due process and fairness, may well be entitled

to bar the evidence.” Staie v. McElroy, 553 So.2d 456, 458

n.1 (La. 1989). “Due process requires proof that the test

was properly conducted.” Com. v. Lucarini, 8 Pa. D. &

C.3d 679, 684 (Pa. Com. Pl. 1977). “There are very basic

due process problems involved in introducing blood alcohol

tests that were not taken in conformity with [proper]

guidelines for admissibility [enacted] to ensure the reli-

ability and accuracy of scientific tests that in themselves

resolve the question of guilt and-innocence.” McElroy, 568

So.2d at 1016. Where proper protocols have not been

followed, “one cannot say that the test results are so

reliable as to satisfy due process and fairness.” State v.

Busby, 893 So.2d 161, 167 (La. App. 2005).

As one Court noted with respect to evidence of intoxi-

cation:

. it must be recognized that thousands of [mo-

torists] are criminally and civilly prosecuted for

DUI each year; and most of them are of modest

means. Some do not have lawyers, and even if

they do, the vast majority of accused drivers can-

not afford scientific experts to challenge ... evi-

dence of intoxication ... Under these conditions,

(14

where liberty and valuable property interests are

at stake, our legal system has a particularly

strong “basic fairness” obligation to see that the

evidence that is regularly used by the State in

these proceedings, where most defenses must

necessarily be limited in time and cost, meets a

threshold of well-established scientific reliability.

Dilliner at 223-4 (Starcher, J., concurring).

“Reliability is a due process issue ... with respect to

the state’s [breath] testing.” Mack at 105.

C. Forensic Breath Test Evidence In Washing-

ton Prior To Enactment Of RCW 46.61.506(4) — Nearly

half a century ago Washington recognized that the State

must establish that a breath test “machine was properly

checked and in proper working order at the time of con-

ducting the test [and] that the chemicals employed were of

the correct kind and compounded in the proper propor-

tions ... for] the result of the test [would be] wholly

unreliable.” State v. Baker, 355 P.2d 806, 809-10 (Wash.

1960).

In 1968, Washington citizens approved Initiative 242

(“I-242”). App. E. Section 3, codified at RCW 46.61.506(3),

reads:

Analysis of the person’s blood or breath to be

considered valid under the provisions of this sec-

tion ... shall have been performed according to

methods approved by the state toxicologist ...

The state toxicologist is directed to approve satis-

factory techniques or methods...

RCW 46.61.506(3); State v. Felix, 479 P.2d 87, 88-9 (Wash.

1971).

“Through enactment of initiative 242, the people

intended to allow the results of tests to be admitted under

certain prescribed safeguards.” Felix at 90. These safe-

guards were meant to ensure that all such evidence would

be “reliable,” “scientific and probative.” State v. Parker, 558

P.2d 1361, 1363 (Wash. 1976); Nowell v. State Dept. of Motor

Vehicles, 516 P.2) #05, 206-7 (Wash. 1973). Moreover, the

people explicitly chose to place the “authority ... to

prescribe approved methods for maintaining and adminis-

tering Breathalyzer tests” in the hands of the State’s

highest expert on such matters, “the State toxicologist.”

State v. Peterson, 674 P.2d 1251, 1253 (Wash. 1984); Felix

at 89-90.

Under these provisions, “the ultimate concern of the

judiciary is that the methods approved result in an accu-

rate test, competently administered, so that a defendant is

assured that the test results do in fact reflect a reliable

and accurate measure of his or her breath content.” State

v. Ford, 755 P.2d 806, 809-10 (Wash. 1988). “If the citizens

of the State of Washington are to have any confidence in

the breath-testing program, that program has to have

some credence in the scientific community as a whole.”

City of Seattle v. Clark-Munoz, 93 P.3d 141, 145-6 (Wash.

2004) (quoting, District Court Panel).

The procedures promulgated by the Toxicologist are

“based on currently accepted scientific principles and

practices in the field of breath alcohol testing.” WAC 448-

13-010 (repealed Oct. 23, 2004). They “are intended to

implement the directive of the statute by ... identifying

. individuals ... to ... maintain [testing] equipment,

and ... identifying certain aspects of the operation of [the]

equipment, necessary for reliable testing.” WAC 448-16-

010. They “ensure the highest possible confidence in the

Breath Testing Program.”” “Deviation [from promulgated

standards] may be justified where ... the scientific integ-

rity of the procedure, the instrument, the program or any

breath alcohol measurement is not compromised.”” The

Toxicologist’s purpose for promulgating these standards is “to

prescribe a method for administering a breath test that

accords with principles accepted in the scientific community

* App. J2 - WASHINGTON STATE PATROL BREATH TEST SECTION,

Policy and Procedure Manual, 1 (2005).

‘ App. J2.

and, when followed, produces a valid test.” City of Seattle

v. Allison, 59 P.3d 85, 89 (Wash. 2002).

The Toxicologist has recognized that “an accurate and

reliable breath test requires a good instrument, program

and protocol.”“ In this context, “the following are required

for an accurate and reliable breath test ... an instrument

in proper working order [which has been] properly cali-

brated.”” “‘Calibration’ is the process of standardizing the

DataMaster instrument to a known ethanol vapor concen-

tration using a certified simulator solution. This allows for

the quantitative measurement of the ethanol concentra-

tion in a person’s breath.”” The Toxicologist has promul-

gated a two page protocol detailing how a DataMaster is to

be calibrated.”

Another measure promulgated by the Toxicologist to

ensure the reliability of state breath tests is the perform-

ance of a Quality Assurance Procedure (“QAP”) on each

DataMaster:” “Prior to ... being installed in the field for

evidentiary use” and “At least once every year.””

The Quality Assurance Procedure ensures the ac-

curacy, precision and forensic acceptability of the

DataMaster instrument for the purpose of quanti-

tatively measuring the alcohol concentration of a

person’s breath. The Procedure evaluates critical

systems within the instrument to ensure their

compliance with strict pre-determined criteria.

'* App. L1 — WASHINGTON STATE PATROL BREATH TEST SECTION,

Training Outline For DataMaster and PBT, Operator Basic, 27 (2004).

* App. L1; Patrick Harding, Methods for Breath Analysis, in

MEDICAL-LEGAL ASPECTS OF ALCOHOL 185, 187 (James Garriott ed., 4th

ed. 2003) (Calibration of breath test machine is critical.).

’* App. J3.

" App. J3-J4.

* The DataMaster and DataMaster CDM are approved for breath

testing in Washington. WAC 448-16-020(1).

* App. J5.

When complying with the standards required in

the Quality Assurance Procedure, the DataMas-

ter can be confidently placed in the field for evi-

dential use.”

The protocol governing the QAP is six pages long and

tests the accuracy and precision of each DataMaster as

well as other critical analytical components meant to

ensure reliability.”

Finally, the Toxicologist has promulgated strict

protocols for the preparation and use of simulator solu-

tions.” The purpose of the simulator:

is to simulate a breath alcohol sample ... it con-

tains a solution of alcohol and water that ... can

produce a known vapor alcohol concentration and

it can be used as a calibrating device and as a

testing device when ... testing a breath test, any

type of breath test instrument. Simulators are

typically the standard for testing the calibration.

The solutions are received from the state toxicol-

ogy laboratory, and are used for certification pur-

poses.

State v. Straka, 810 P.2d 888, 894 (Wash. 1991).

“(T]he simulator protocol relates to accuracy of breath

testing, [an] evidentiary concern[].” Straka at 893. “The

simulator test is of particular significance in certification

of the DataMaster machine, and in the machine’s self-

testing of calibration which it goes through each time a

breath alcohol analysis is performed in accordance with

procedures in the WACs.” Id. If the DataMaster cannot

return the correct value for the simulator solution, then it

* App. J5; Harding, note 15 at 189 (Failure to perform QAP

“jeopardizes the reliability of the testing result.”).

" App. J5-J14.

* App. K - WASHINGTON STATE TOXICOLOGY LABORATORY, Proce-

dure For The Preparation Of .08 Simulator External Standard Solution

For Use With A Breath Test Instrument (2005); App. J15-J17.

cannot be expected to return an accurate value on a breath

test administered to a motorist. “Obviously, the simulator

solution is key to simulator testing.” Jd. at 894.

Once placed in the field, however, the alcohol concen-

tration of the solution decreases through evaporation.”

This means that if a solution has a vapor concentration of

.08 on day 1, it will continue to decrease to concentrations

less than .08 as time passes. Nonetheless, regardless of

what the true vapor concentration is at a given time, the

simulator check will be deemed satisfied if it returns any

value between .072 and .088. WAC 448-16-050. While this

naturally allows for some inherent error, the Toxicologist

has determined that as long as proper ‘protocols are

adhered to this error can be minimized.

A major problem could occur, however, if simulator

solutions were left in the field for an indeterminate period

of time allowing their vapor alcohol concentration to sink

much below these levels. In that case, a reference test

might report a value of .088, which would be deemed

correct under the regulations, but the actual vapor concen-

tration of the solution would be much lower than that so

the DataMaster would be grossly over-estimating alcohol

concentration. This could occur if the DataMaster has

fallen out of calibration. In this case, the DataMaster

would report vastly inflated BAC values for motorist’s

tested on that machine. To ensure that use of the simula-

tor solution remains an effective safeguard against such

possibilities, the Toxicologist has mandated that: “Solu-

tions shall be changed at least every 60 days regardless of

number of tests or measurement value.”

“These specifications demonstrate the toxicologist’s

concern to ensure accuracy.” City of Sunnyside v. Fernan-

dez, 799 P.2d 753, 755 (Wash. App. 1990). “[A]ldherence to

the protocols for evaluation and certification and the

* App. K1.

* App. J15.

protocol for preparing and testing the simulator solution,

when coupled with compliance with applicable WACs

[regulations], produces scientifically reliable results.”

Straka at 893. Accordingly, for a test to have been admis-

sible under RCW 46.61.506(3), “compliance with the

[approved regulations and protocols was “required”] to

assure accuracy and reliability of the test results.” Allison

at 91. This included having to introduce “proof [that the

DataMaster] had been checked and calibrated.” State v.

Watson, 756 P.2d 177, 179 (Wash. App. 1988); Peterson at

1254.

There is more to this regime, however, than simply

ensuring the reliability of test evidence. It reflects a

judgment by the citizens of Washington concerning the

fairness of the procedures involved. Three years prior to

the passage of I-242 “the United States Supreme Court

held ... that the State can constitutionally force a defen-

dant to submit to a blood alcohol or breathalyzer test.”

State v. Bostrom, 902 P.2d 157, 161 (Wash. 1995); Schmer-

ber v. California, 384 U.S. 757 (1966). In response, the

citizens of the State of Washington prohibited this as a

general practice giving themselves the right to refuse to

submit to a breath test through a provision of 1-242

codified at RCW 46.20.308. State v. Krieg, 497 P.2d 621,

624 (Wash. App. 1972); Parker at 1363. It also provided

that:

Any person who operates a motor vehicle within

this state is deemed to have given consent, sub-

ject to the provisions of RCW 46.61.506, to a test

or tests of his or her breath or blood for the pur-

pose of determining the alcohol concentration .. .

RCW 46.20.308.

Read together, RCW 46.20.308 and RCW 46.61.506(3)

can be seen as encompassing several judgments made by

the citizens of Washington. First, the administration of

alcohol tests represents a significant intrusion into the

human body. State v. Wetherell, 514 P2d 1069, 1073

(Wash. 1973).% Second, given the hazards caused by

intoxicated drivers, a citizen’s privilege to drive ought to

be conditioned on his consent to such intrusions when

properly requested. And, finally, given the significant

bodily intrusion and the dire consequences that could

befall a motorist who fails a breath test, that substantial

precautions ought to be taken to ensure that the breath

test consented to is both “scientific,” Parker at 1363, and

“reliable,” Nowell at 206-7, as determined by the State’s

highest expert on such matters, “the State toxicologist.”

Peterson at 1253; Felix at 89-90. This final judgment

evidences what the citizens of Washington deemed neces-

sary to guarantee fairness in the administration and use

of breath tests as evidence of guilt in a criminal proceed-

. 26

ing.

D. Forensic Breath Test Evidence In Washing-

ton After Enactment Of RCW 46.61.506(4) And The

Denial Of Due Process — The only element of the crime

Mr. Jensen was charged with that is in dispute is whether

he had “an alcohol concentration of at least 0.02 ... as

shown by analysis of fhis] breath ... made under RCW

46.61.506.” RCW 46.61.503. Thus, the results of Mr.

Jensen’s breath test are necessarily and solely determina-

tive of a finding of guilt or innocence.

Passage of SHB 3055 left RCW 46.61.506(3) intact but

added a new section 4 reading:

* Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989),

Holland v. Parker, 354 F.Supp. 196, 199 (D.S.D. 1973).

** Under Washington Constitution, “the people in their legislative

capacity are superior to al] other branches of government.” Siate v.

Superior Court In and For Thurston County, 159 P. 92, 95 (Wash. 1916).

“(Djeliberate efforts by a legislative body to circumvent the initiative or

referendum rights of an electorate will not be looked upon favorably.”

Citizens for Financially Responsible Government v. City of Spokane, 662

P.2d 845, 852 (Wash. 1983).

(4)(a) A breath test ... shall be admissible at

trial or in an administrative proceeding if the

prosecution or department produces prima facie

evidence of the following:

(See App. C2)

(b) ... 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.

- prevent the subject of the test from challenging

the reliability or accuracy of the test, the reliabil-

ity or functioning of the instrument, or any

maintenance procedures. Such challenges, how-

ever, 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 re-

sult.

RCW 46.61.506(4).

Through this provision:

... the legislature adopts standards governing

the admissibility of tests of a person’s ... breath.

These standards ... will reduce the delays

caused by challenges to various breath test in-

strument components and maintenance proce-

dures. 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.

App. D2.

The first thing to note is that compliance with the

provisions of RCW 46.61.506(3) is no longer required. “The

legislature has made clear its intention to make BAC test

results fully admissible once the State has met its prima

facie burden [under RCW 46.61.506(4)(a)].” City of Fircrest

v. Jensen, 143 P.3d 776, 784 (Wash. 2006). Although the

admissibility of the test may be challenged on some other

grounds, any challenges to “the reliability or accuracy of

the test, the reliability or functioning of the instrument, or

any maintenance procedures ... shall not preclude the

admissibility of the test.” RCW 46.61.506(4)(c). “These

provisions clearly preclude challenges to the admissibility

of BAC test results on reliability and accuracy grounds

once the requirements of subsection (4)(a) are met.” Jensen

at 795 (Sanders, J., dissenting).

Under section (4)(a), however, the State is no longer

required to produce any evidence of instrument calibra-

tion, the performance of an annual QAP or even that the

simulator solution used in a particular test has been

replaced within the 60 days preceding the test (collectively

hereinafter, “Standards”).” (See App. C2). As illustrated

above, though, these steps are recognized by the State

Toxicologist as being critical to insuring a valid and

reliable test. The Court’s rejection of these Standards is

particularly confusing given its concession that where “the

reliability of the scientific evidence [is concerned, the

Court] should defer to the judgment of scientists.” Jensen

at 783. These Standards, however, were established by

the State Toxicologist, the State’s highest scientific expert.

On the other hand, the statutory requirements were

promulgated by a Legislature which never claimed any

scientific expertise of its own or conducted any sort of

inquiry on the matter. Moreover, the Court acknowledged

the Legislature’s desire to turn the clock back to before the

Clark-Munoz decision supra, where it was recognized that

“filf the citizens of the State of Washington are to have any

*” Standards: 1) annual calibration; 2) annual QAP; and 3) 60 day

solution changes.

confidence in the breath-testing program, that program

has to have some credence in the scientific community as a

whole.” Jensen at 782-3. Nonetheless, blithely stating that

“courts need not assess the reliability of the scientific

evidence,” the Court concluded that RCW 46.61.506(4)

does not offend due process because the argument that a

citizen “is entitled to a fair trial, including a right to be

convicted by reliable evidence ... is without merit.” Jd. at

783-4.

The Court’s decision defies reason. Reliance on breath

test technology depends on the certitude offered by the

application of tested scientific principles and practices to

the analysis of breath alcohol. This certitude, however,

may only be claimed if we adhere to those tested princi-

ples.” If we fail to adhere to them, the evidence obtained is

no longer supported by science. The absurdity of allowing

scientific tests to be used as evidence which fail to follow

simple procedures known by the State to be necessary to

ensure a scientifically valid and reliable result would

undermine public confidence in the administration of

government and justice itself.

This is not the first time a government has engaged in

the practice of science by decree. Perhaps the most famous

example is that of Galileo who was convicted for asserting,

contrary to the law of the time, that the Earth revolved

around the Sun. State v. O’Key, 899 P.2d 663, 678 n.21 (Or.

1995). Even more recently the Indiana State Legislature

introduced a bill to define the value of pi.

... the ratio between the diameter of a circle and

the circumference of a circle is known as pi, and is

equal to roughly 3.14159. It is a long decimal num-

ber that is hard to remember, so in 1897 the legis-

lature of the State of Indiana decided that they

would make life easier for high school students by

* Layton City v. Peronek, 803 P.2d 1294, 1299-1300 (Utah App.

1990).

24 x

passing a law that the value of pi would be 3.0

exactly.

141 Cong. Rec. H4690-4753 (daily ed. May 10, 1995)

(statement of Rep. Zimmer).

As a measurable ratio, however, pi is what it is. Eric

Weisstein, CRC CONCISE ENCYCLOPEDIA OF MATHEMATICS,

(1999). Legislating its value is as absurd as passing “a law

that the Earth is flat.” Jan Gullberg, MATHEMATICS: FROM

THE BIRTH OF NUMBERS, 95-6 (1997). Adopting the pro-

posed value for pi would have forced “Detroit ... to manu-

facture cars with elliptical [oval shaped] wheels.” 133

Cong. Rec. £ 141-03 (1987) (statement by Arthur C. Clarke,

scientist). One can imagine the bumpy ride that would

result in and the likely fate of the U.S. automobile indus-

try. The point is that the laws of nature cannot be changed

by legislative fiat. Gullberg, supra, at 96.

Analogously, “the determination of ... BAC by means

of breath tests is a scientific process. [To be scientifically

valid, each test] must be performed according to proper

scientific practices and standards established by scientists

with specific knowledge of the subject.”” If they are not,

the breath tests can have “no credence in the scientific

community” and the citizens “no confidence in the State’s

breath-testing program.”

Washington has explicitly named specific Standards

it knows to be necessary to yield reliable test results. This

has been done by the State’s own expert on these matters:

the State Toxicologist. Allowing the State to use tests

without taking the time to demonstrate compliance with

the basic scientific Standards recognized and developed

by the State itself would raise grave “concerns regarding

the reliability of evidence and affect the integrity of the

truth-seeking process.”

** Recommended Standards and Procedures of The Canadian

Society of Forensic Science Alcohol Test Committee, 36(3) SOC. FORENS.

Sci. J. 101, 113 (2003).

The fact that we are speaking of scientific Standards

recognized and developed by the State itself is what

removes this from the realm of matters which go to weight

as opposed to admissibility. When considering scientific

standards that have been explicitly recognized by both the

State and a defendant, there is no question of fact regard-

ing their applicability for a jury to decide. Each of the

provisions discussed above comes directly from pro-

nouncements of the State Toxicologist in his role as chief

scientist for the State in this area. Hence, with respect to

these Standards there is no question of weight. The State

already knows application of the Standards is a neces-

sary prerequisite to a scientifically valid and reliable test.

Accordingly, failure to require the State to produce some

evidence of compliance with these Standards before a test

is submitted to a jury for consideration deprives any test

sought to be admitted of that minimum indicia of reliabil-

ity required to satisfy due process.

Of greater concern is the fact that even if a defendant can

produce conclusive proof that these Standards were not

adhered to, the trial court is not permitted to consider that in

determining the admissibility of the breath test. RCW

46.61.506(4) “clearly precludes challenges to the admissibility

of BAC test results on reliability and accuracy grounds once

[its] requirements ... are met.” Jensen at 795 (Sanders, J.,

dissenting). Thus, even where both parties and the trial court

itself know that a breath test lacks the necessary foundation

to establish its reliability, the State is permitted to, and the

Court forced to allow, the unreliable evidence to be introduced

to the jury and relied upon as a valid basis for a finding of

guilt. This clearly deprives any test of that minimum indicia

of reliability required to satisfy due process.

The natural reply is that the defendant can introduce

his evidence or challenge the result at trial. Remember,

however, that not every motorist in the State can afford to

hire an expert to explain and establish the need for these

Standards to a jury in the hopes of convincing the jury

that they are necessary to ensure a valid and reliable test.

Further, as this Court has recognized, “lejxpert evidence

can be both powerful and quite misleading because of the

difficulty in evaluating it.” Daubert v. Merrell Dow Phar-

maceuticals, Inc., 509 U.S. 579, 595 (1993). Thus, this

provides no guarantee that the lack of a foundational basis to

establish the reliability of the test in question will be under-

stood by the jury. Accordingly, failure to require the State to

produce some evidence of compliance with these Standards

before a test is submitted to a jury for consideration deprives

any test sought to be admitted of that minimum indicia of

reliability required to satisfy due process.

Even if an individual could afford to hire an expert to

explain and establish the need for these Standards to a

jury, why should he have to? Again, the statute makes

admissible what may be conclusive evidence of guilt

without requiring the State to demonstrate compliance

with basic scientific Standards developed by the State and

recognized by the State to be necessary to ensure the reli-

ability and forensic acceptability of that evidence. By permit-

ting the State to present this evidence while excusing it from

having to provide any evidence that these Standards have

been complied with, the Legislature is condoning the depriva-

tion of individual liberty based solely on a test result from a

machine it knows may not be scientifically reliable. This is

akin to allowing the State to use misleading evidence it knows

to consist of half truths and forcing a citizen to prove to the

jury what both parties already know is required to reveal the

full truth. Even where both parties and the trial court itself

know that the Standards have not been satisfied, a citizen’s

fortunes are left to whether or not he is skillful enough to

educate the jury concerning Standards the State already

knows are required for reliability.

Is such a result justified by the Legislature’s desire to

“reduce the delays caused by challenges” to evidence

failing to satisfy the minimum Standards recognized and

developed by the State itself? Does it reflect the “profound

attitude of fairness ... between the individual and gov-

ernment” demanded by due process?

“|A] democratic government must ... practice fair-

ness.” Lankford at 121. “If prosecutors are permitted to

convict guilty defendants by [such] unfair means, then we

are but a moment away from the time when prosecutors

will convict innocent defendants by unfair means. Courts

must not permit this to happen, for when it does the

freedom of each citizen is subject to peril and chance.”

State v. Lavaris, 707 P.2d 134, 136 (Wash. App. 1985).

While judicial economy is a laudable goal, it must not be

achieved by dispensing with such elementary safeguards

of an individual’s liberty. Such indifference to the potential

loss of liberty by a citizen shocks the conscience and is

clearly fundamentally unfair to all citizens of Washington.

At a minimum, the fundamental procedural fairness

mandated by due process requires that the State produce

some evidence that it has followed those Standards it

knows to be necessary to guarantee a scientifically valid

and reliable test before that test is introduced to a jury.

Even if this Court were to determine that the Standards

recognized and established by the State were not necessary and

instead that the simple checklist contained in RCW

46.61.506(4)(a) was adequate to bestow the required indicia of

reliability, the provision as a whole would still be violative of

due process. This follows from the command that:

In assessing whether there is sufficient evidence

of the foundational facts [contained in the check-

list of section a], the court or administrative tri-

bunal is to assume the truth of the prosecution’s

or department’s evidence and all reasonable in-

ferences from it in a light most favorable to the

prosecution or department.

RCW 46.61.506(4)(b).

Pursuant to this directive, in establishing the founda-

tional requirements of the statute, no matter how weak the

evidence presented by the State is or whether the defendant

can conclusively establish that the State’s evidence is false or

even if the trial court in its judgment determines that the

State’s evidence is not credible, it must be assumed to be true.

This impacts not only the reliability of the evidence that will

be permitted to go to the jury but the fundamental fairness of

the proceedings themselves.

First, if even patently incredible evidence must be

presumed to be true for purposes of establishing the

admissibility of a breath test, there is virtually no hurdle

whatsoever that the State must clear in establishing the

reliability of the evidence it intends to introduce to the

jury. Any conjecture, half-truth or fabrication, no matter

how obviously untrustworthy, must be accepted as true.

The legislature has substituted its judgment for that of the

trial judge with respect to the credibility of witnesses and

evidence in a particular matter even though it is not privy

to who or what the witnesses and evidence are or what

they have to say. Clearly such a determination, devoid of

any knowledge of the facts and circumstances surrounding

the administration of a particular test, cannot ensure that

minimum indicia of reliability required by due process.

Second, the command to “assume the truth of the

prosecution’s ... evidence and all reasonable inferences

from it in a light most favorable to the prosecution” does

not simply tip the balances in favor of the State, it bra-

zenly does away with them all together. Given that the law

clearly dictates that Courts must accept as true all evi-

dence submitted by the State to establish the foundation

for admissibility of a breath test, any motion by a defen-

dant to refute that evidence becomes frivolous as it is no

longer supported by law. CRLJ 11(a)(2). Thus, any attor-

ney who attempts to challenge the admissibility of a

breath test at this stage through evidence contradicting

that being relied upon by the State, could be subject to

sanctions simply for trying to ensure the reliability of the

evidence. CRLJ 11(a). A more obvious “procedure .. . frequir-

ing a judge] not to hold the balance nice, clear, and true

between the state and the accused” cannot be imagined. This

is clearly fundamentally unfair and denies the accused

due process of law. Tumey at 532.

In the matter sub judice, Mr. Jensen claims to have

been wearing a tongue ring at the time of his test which

would have rendered the test results inadmissible under

RCW 46.61.506(4)(a)(iii). The officer who administered the

test, however, had indicated in his police report that he had

performed the 15-minute mouth check prior to the test as

required by the statute. Without more, the statute makes

this conclusive proof for foundational purposes that Mr.

Jensen was not wearing a tongue ring. Accordingly, a test

which may have been unreliable even under the stripped

down statutory requirements was found admissible. More-

over, given that the trial court found RCW 46.61.506(4)

constitutional, counsel for Mr. Jensen was precluded from

raising argument contradicting the State’s evidence on this

point for fear of being sanctioned under CRLJ 11. Accord-

ingly, Mr. Jensen’s due process rights to fundamentally fair

procedural protections and to be tried by evidence contain-

ing some minimum modicum of reliability were denied.

The provisions of RCW 46.61.506(4) violate the Due

Process Clause of the Fourteenth Amendment. The Wash-

ington Supreme Court decided an important question of

federal law that has not been, but should be, specifically

settled by this Court, and which conflicts with other

generally relevant decisions of this Court. This satisfies

the general criteria for granting certiorari from a decision

of state court of last resort. U.S.Sup.Ct. Rule 10(c).

III. The Decision Of The State Court Conflicts With The

Decisions Of Another State Court Of Last Resort.

The Washington Supreme Court held:

The courts need not assess the reliability of the

scientific evidence ... The appellant argues that

under the federal and state constitutions, he is

entitled to a fair trial, including a right to be

convicted by reliable evidence ... The appellant’s

argument is without merit.

Jensen at 783-4.

This directly contradicts the conclusion of the Louisiana

State Supreme Court which made clear that “[i]n order for the

results of a blood alcohol test to be admissible, the state must

prove that the reliability of the test satisfies due process and

fairness.” Honeyman, at 829; McElroy at 458 n.1. It also

conflicts with the decisions of the appellate courts of at least

four other states including Arizona, Mack at 104 (“due process

requires that the state ensure that the tests it demands

drivers submit to produce reasonably accurate results”),

Kansas, Meehan at 943 (“the court must ascertain whether

the statutes] ... establishing the reliability of breath testing

... are contrary to due process”), Pennsylvania, Lucarini at

684 (“Due process requires proof that the test was properly

conducted”), and Utah, Peronek at 1300 (Due process grants to

each defendant the right to have the state demonstrate

conformity with standards that produce a “residuum of

competent evidence of reliability of the breath test”).

Given these conflicting approaches and the split

between two state courts of last resort, review by this

Court is appropriate. U.S.Sup.Ct. Rule 10(b).

Respectfully submitted,

LINDA M. CALLAHAN

TED W. VosSK

LENELL R, NUSSBAUM

Counsel of Record

Attorneys for Petitioner

APPENDIX A

143 P.3d 776

City of Fircrest v. JensenWash.,2006.

Supreme Court of Washington, En Banc.

CITY OF FIRCREST, Respondent,

Theo JENSEN, Appellant.

No. 76738-6.

Argued Oct. 27, 2005.

Decided Oct. 5, 2006.

Linda Medeiros Callahan, Callahan Law, Shelton,

Theodore Wayne Vosk, Attorney at Law, Bothell, for

Appellant. '

Michael Brian Smith, Attorney at Law, Tacoma,

Pamela Beth Loginsky, Washington Assoc of Prosecuting

Atty, Olympia, for Respondent.

Susan Sackett DanPullo, Office of the Atty. Gen., Olym-

pia, for Amicus Curiae Wash. State Dept. of Licensing.

Shannon Elizabeth Inglis, Attorney General’s Office,

Seattle, for Amicus Curiae Wash. State Patrol.

C. JOHNSON, J.

{ 1 This case involves a challenge to Substitute House

Bill 3055' (SHB 3055), “AN ACT Relating to admissibility

of DUI (driving under the influence of an intoxicant) tests;

amending RCW 46.61.506; reenacting and amending RCW

46.20.308 and 46.20.3101; and creating a new section.”

Substitute H.B. 3055, 58th Leg., Reg. Sess. (Wash.2004).

' The act is also referred to by its session law number, Laws of

2004, ch. 68.

The appellant argues the act violates either the United

States Constitution or the Washington Constitution by (1)

including more than one subject in its title (2) not includ-

ing the subject of the bill in its title (3) violating the

doctrine of separation of powers and/or (4) violating due

process by creating a mandatory rebuttable presumption.

SHB 3055 took effect on June 10, 2004, and has been

challenged in various municipal and district courts on

similar grounds with varying results. In this case, the

municipal court judge rejected al] challenges to the act. We

affirm.

FACTUAL AND PROCEDURAL HISTORY

q§ 2 On March 22, 2004, the legislature enacted SHB

3055. In the bill’s first section, the legislature conveys its

frustration with the inadequacy of previous attempts to

curtail the incidence of DUI and sets a goal of ensuring

swift and certain consequences for those who drink and

drive. In section 2, the bill amends RCW 46.20.308, the

implied consent statute, to allow police officers to obtain

search warrants for a person’s blood or breath, even if that

person consents to the search. The bill also revises the

warnings a police officer must give to a driver before

conducting a breath or blood alcohol concentration test

(BAC). These revisions were intended to reflect the then-

current state of the law. Section 4 amends RCW 46.61.506

- by codifying the foundational requirements for the admis-

sibility of BAC test results and expands the list of people

qualified to administer a blood test under RCW 46.20.308.

{ 3 The facts giving rise to this claim are undisputed.

During the early morning hours of October 23, 2004,

appellant Theo Jensen was pulled over for speeding by a

city of Fircrest police officer. The officer noticed the smell

of alcohol on Jensen’s breath and proceeded to conduct

field sobriety tests. Based on the results of the tests, the

smell of alcohol on Jensen’s breath, and the fact that

Jensen had been speeding, the officer arrested Jensen and

took him to the police station to conduct a BAC test. The

BAC test results were 0.043 and 0.042, above the 0.02

legal limit for persons under the age of 21.

{ 4 Jensen moved to suppress the test results on the

grounds that SHB 3055 is unconstitutional. The municipal

court heard arguments and ultimately denied the motion.

Jensen was convicted of driver under 21 consuming

alcohol, RCW 46.61.503. Jensen petitioned for direct

review of his case under RAP 4.3.

ANALYSIS

q¥ 5 We review challenges to the constitutionality of

legislation de novo. The party challenging the legislation

bears the burden of showing the legislation is unconstitu-

tional. The appellant challenges SHB 3055 on three

grounds. First, he argues the bill violates article II, section

19 of the Washington Constitution by either containing

more than one subject in the title or not reflecting the

subject of the bill in the title. Next, he argues the act

violates the doctrine of separation of powers by allowing

the legislature to usurp the power of the judiciary to

determine the admissibility of evidence. Finally, he argues

the substance of the act violates a defendant’s due process

rights to a fair trial.

I. ARTICLE II, SECTION 19

q 6 Article II, section 19 of the Washington Constitu-

tion reads, “No bill shall embrace more than one subject,

and that shall be expressed in the title.” This has been

interpreted as creating two distinct prohibitions: first, no

bill shall embrace more than one subject (the single-

subject rule); and second, no bill shall have a subject not

expressed in the title (the subject-in-title rule). State ex

rel. Citizens v. Murphy, 151 Wash.2d 226, 249, 88 P.3d 375

(2004). This constitutional mandate serves three distinct

purposes:

(1) to protect and enlighten the members of the

legislature against provisions in bills of which

the titles give no intimation; (2) to apprise the

people, through such publication of legislative

proceedings as is usually made, concerning the

subjects of legislation that are being considered;

and (3) to prevent hodge-podge or log-rolling leg-

islation. We have declared that when laws are

enacted in violation of this constitutional man-

date, the courts will not hesitate to declare them

void.

Patrice v. Murphy, 136 Wash.2d 845, 851-52, 966 P.2d 1271

(1998) (quoting State ex rel. Wash. Toll Bridge Auth. v.

Yelle, 32 Wash.2d 13, 24, 200 P.2d 467 (1948)). Violation of

either the single-subject rule or the subject-in-title rule is

sufficient to declare the relevant provisions of the bill

unconstitutional. Patrice, 136 Wash.2d at 852, 966 P.2d

1271. Article II, section 19 is liberally construed in favor of

upholding the challenged legislation. The burden is on the

challenger to establish the bill’s unconstitutionality

beyond a reasonable doubt.

{ 7 As a threshold matter, this court must first decide

the relevant title of the act. As both parties note, there

exists a line of cases establishing that when an act pur-

ports to amend a prior act, the relevant title to be exam-

ined under article II, section 19 is the title of the original

act. St. Paul & Tacoma Lumber Co. v. State, 40 Wash.2d

347, 355, 248 P.2d 474 (1952).” Although this rule has

never been expressly overruled, it has been called into

question by its absence from more recent article II, section

19 challenges involving amendatory acts. See, e.g., Fray v.

Spokane County, 134 Wash.2d 637, 952 P.2d 601 (1998) (in

article II, section 19 challenge, only the title of the amen-

datory act was considered). Of the seven lower court

rulings submitted by the appellant, four declined to follow

St. Paul and analyzed the amendatory title of the act. The

remaining three followed St. Paul and analyzed the title of

the original act.

{ 8 The appellant argues that St. Paul and its progeny

are an anomaly and should be overruled here. They cite

the language of article II, section 19 to assert that the

words “[njo bill” expresses the framers’ intention that the

mandate apply equally to both original and amendatory

acts. The respondent argues only that the appellant has

failed to meet its burden to overturn the St. Paul line of

cases.

4 9 We agree with the respondent that the appellant

has failed to show the St. Paul rule, requiring examination

* This rule was affirmed in the following cases: Keeting v. Pub.

Util. Dist. No. 1, 49 Wash.2d 761, 306 P.2d 762 (1957); Goodnoe Hills

Sch. Dist. No. 24 v. Forry, 52 Wash.2d 868, 329 P.2d 1083 (1958); Water

Dist. No. 105 v. State, 79 Wash.2d 337, 485 P.2d 66 (1971); & Belancsik

v. Overlake Mem! Hosp., 80 Wash.2d 111, 492 P.2d 219 (1971).

of the original title, is harmful and incorrect. Any original

act passed by the legislature is subject to traditional

article II, section 19 challenges, ensuring compliance with

our constitution and adherence to the goals stated above.

When amending an original act, it is unnecessary to

examine the amendatory title for strict compliance with

article II, section 19 because the underlying act has

already passed such scrutiny. In these cases, we need only

inquire if the amendatory act explicitly identifies what

sections of the original act it is purporting to amend and

that the amendments proposed could have been included

in the original act. If the answer to both questions is yes,

the amendatory title passes constitutional scrutiny. We

take this opportunity to explicitly reaffirm the St. Paul

cases and hold that, for the purposes of article II, section

19 challenges, the title of an amendatory act is sufficient if

the title identifies and purports to amend the original act

and the subject matter of the amendatory act is within the

purview of the title of the original act.

{ 10 The dissent agrees with the appellant and would

likewise overrule St. Paul. The dissent similarly fails to

show how the St. Paul rule is incorrect or harmful and

provides little reasoning to support its conclusion that the

rule undercuts the constitutional provision at issue. In

fact, St. Paul does not undercut our constitution, but

rather reflects the general understanding of article II,

section 19 at the time it was adopted. St. Paul relied

primarily on a treatise which explained:

“If the title identifies and purports to amend a

prior act, any matter properly connected with, or

germane to, the subject expressed in the title of

that act may be included in the body of the

amendatory act. Any matter that could validly

have been enacted as part of the original act un-

der its title is considered germane. If the title of

the original act is sufficient to embrace the mat-

ter contained in the amendatory act, the suffi-

ciency of the title of the latter will not be

inquired into.”

St. Paul, 40 Wash.2d at 355, 243 P.2d 474 (quoting 1 J.G.

Sutherland, Statutes and Statutory Construction § 1908

(Frank E. Horack, Jr., ed., 3d ed.1943)). The treatise, in

turn, reflected the common understanding of how to

interpret similar state constitutional provisions. See, e.g.,

Morford v. Unger, 8 Iowa 82 (1859) (interpreting article III,

section 26 of the Iowa Constitution reading, “[e]very law

shall embrace but one object which shall be expressed in

its title”); In re Miller, 29 Ariz. 582, 244 P. 376, 379 (1926)

(interpreting article [V, section 13 of the Arizona Constitu-

tion reading, “[e]very act shall embrace but one subject

and matters properly connected therewith, which subject

shall be expressed in the title”). Thus, St. Paul and its

progeny reflect the common understanding of article II,

section 19 at the time it was adopted. This rule is well

established. Because the appellant and the dissent cannot

show how this rule is incorrect or harmful, we will not

overrule it.”

4 11 The title of SHB 3055 reads, “AN ACT Relating

to admissibility of DUI tests; amending RCW 46.61.506;

reenacting and amending RCW 46.20.308 and 46.20.3101;

* Further, as the dissent recognizes, the rule applied in St. Paul

has been applied in subsequent cases. What the dissent fails to

acknowledge is that the St. Paul analysis in turn cited to a 1908

treatise for support and was not a new or novel approach. St. Paul and

other cases are entirely consistent with the general understanding of

how article II, section 19 would operate when it was adopted.

and creating a new section.” Here, the title of SHB 3055

states explicitly that it is amending RCW 46.61.506 and

reenacting and amending RCW 46.20.308 and 46.20.3101.

The act meets the first prong of the above test by explicitly

identifying and announcing its amendment of the original

act.

q 12 Next, we must determine if the subject matter of

SHB 3055 falls within the scope of the original act. The

title of the original act reads, “AN ACT Relating to vehi-

cles; providing for the regulation and licensing thereof and

of persons in relation thereto; providing for the collection

and disposition of moneys; enacting a vehicle code to be

known as Title 46 of the Revised Code of Washington-

“Motor Vehicles”; providing penalties; repealing certain

acts and parts of acts; and declaring an emergency.” LAWS

OF 1961, CH. 12. The scope of the original act includes the

creation of Title 46 of the Revised Code of Washington and

deals specifically with motor vehicles, the regulation and

licensing of vehicles and persons, and provides penalties

for violations of the act. The subject matter of SHB 3055,

which concerns preliminary procedures of BAC tests,

including search warrants and required warnings along

with the admissibility of BAC tests in court, logically fits

within the ambit of the regulation of vehicles and penal-

ties for violations of those regulations. We conclude that

the title of SHB 3055 adequately announces it is amending

the Motor Vehicle Act, and the subject matter of SHB 3055

is within the purview of the Motor Vehicle Act. SHB 3055

does not offend article II, section 19 of our constitution.

II. SEPARATION OF POWERS

4 13 The doctrine of separation of powers, implicit in

our state constitution, divides the political power of the

people into three co-equal branches of government.

Though the doctrine is designed to prevent one branch

from usurping the power given to a different branch, the

three branches are not hermetically sealed and some

overlap must exist. ““The question to be asked is not

whether two branches of government engage in coinciding

activities, but rather whether the activity of one branch

threatens the independence or integrity or invades the

prerogatives of another.’” State v. Moreno, 147 Wash.2d

500, 505-06, 58 P.3d 265 (2002) (quoting Carrick v. Locke,

125 Wash.2d 129, 135, 882 P.2d 173 (1994)). The issue here

is whether the legislature is threatening the independence

or integrity or invading the prerogative of the judiciary by

passing SHB 3055.

{ 14 This court is vested with judicial power from

article IV of our state constitution and from the legislature

under RCW 2.04.190. The inherent power of article IV

includes the power to govern court procedures. The dele-

gated power of RCW 2.04.190 includes the power to adopt

rules of procedure. State v. Fields, 85 Wash.2d 126, 128-29,

530 P.2d 284 (1975). In general, the judiciary’s province is

procedural and the legislature’s is substantive. “Substantive

law prescribes norms for societal conduct and punishments

* RCW 2.04.190 reads in part, “(t]he supreme court shall have the

power to prescribe ... the forms of writs and all other process, ... of

taking and obtaining evidence; ... and generally to regulate and

prescribe by rule the forms for and the kind and character of the entire

pleading, practice-and procedure to be used in all suits, actions, appeals

and proceedings of whatever nature... .”

A10

for violations thereof. It thus creates, defines, and regu-

lates primary rights. In contrast, practice and procedure

pertain to the essentially mechanical operations of the

courts by which substantive law, rights, and remedies are

effectuated.” State v. Smith, 84 Wash.2d 498, 501, 527 P.2d

674 (1974). The adoption of the rules of evidence is a

legislatively delegated power of the judiciary. RCW

2.04.190. Therefore, rules of evidence may be promulgated

by both the legislative and judicial branches. When a court

rule and a statute conflict, the court will attempt to

harmonize them, giving effect to both. Whenever there is

an irreconcilable conflict between a court rule and a

statute concerning a matter related to the court’s inherent

power, the court rule will prevail. Wash. State Council of

County & City Employees v. Hahn, 151 Wash.2d 163, 168-

69, 86 P.3d 774 (2004).

415 The appellant argues that SHB 3055 is not a

substantive bill but instead is an attempt to regulate court

procedure by mandating the admission of BAC test re-

sults. The appellant relies on the language of section

4(4)(c), which reads:

Nothing in this section shall be deemed to pre-

vent the subject of the test from challenging the

reliability or accuracy of the test, the reliability

or functioning of the instrument, or any mainte-

nance 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 con-

tained 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 re-

sult.

All

SHB 3055, § 4(4)(c) (emphasis added). Thus, according to

the appellant, once the State has met its prima facie

burden under section 4(4)(a), the results of the BAC test

must be admitted. The appellant argues that under this

interpretation, the act conflicts directly with the court’s

authority to exclude evidence based on relevancy or

prejudice under ER 401, 402, 403, and 404(b).

{ 16 The respondent argues that SHB 3055 is merely

a codification of admissibility rules for BAC tests as they

have developed from our case law. This court first outlined

the prima facie requirements for the admission of

Breathalyzer test results in State v. Baker, 56 Wash.2d

846, 355 P.2d 806 (1960). The prima facie requirements

under Baker are that (1) the machine was properly

checked and in proper working order at the time of con-

ducting the test (2) the chemicals employed were of the

correct kind and compounded in the proper proportions (3)

the subject had nothing in his mouth at the time of the

test and that he had taken no food or drink within 15

minutes prior to taking the test and (4) the test be given

by a qualified operator and in the proper manner. All

remaining challenges went to the weight of the test

results, not its admissibility. Baker, 56 Wash.2d at 852-55,

355 P.2d 806. In 1969, by initiative, the role of approving

testing instruments, establishing procedures for conduct-

ing tests, and licensing individuals to conduct the test was

delegated to a state toxicologist. The toxicologist eventu-

ally recommended that the machine be switched from the

Breathalyzer to the BAC Verifier DataMaster machine

and adopted appropriate regulations, including a modified

version of the four Baker requirements. The respondent

argues that this court continued to look only to the modi-

fied Baker requirements codified in the Washington

Al2

Administrative Code by the toxicologist and regarded all

other challenges as going to weight and not admissibility.

{117 However, in 2004, this court deviated from

precedent and suppressed numerous BAC tests based on a

failure to comply with a WAC that did not concern one of

the four Baker requirements. City of Seattle v. Clark-

Munoz, 152 Wash.2d 39, 93 P.3d 141 (2004) (holding that

the State failed to comply with former WAC 448-13-035

(2001) by using thermometers not traceable to standards

maintained by the National Institute of Standards and

Testing). The respondent maintains that in response to

Clark-Munoz, the legislature restored its authority to

prescribe admissibility requirements, which had previ-

ously been delegated to the state toxicologist, by enacting

SHB 3055. The legislature is now reaffirming the modified

Baker requirements and expanding them to include three

additional requirements, as prima facie evidence of admis-

sibility and requiring all other challenges to the reliability

or accuracy of the tests to go to the weight of the evidence.’

* SHB 3055, section 4(4)(a) reads:

A breath test performed by any instrument approved by the

state toxicologist shall be admissible at trial or an adminis-

trative proceeding if the prosecution or department pro-

duces prima facie evidence of the following:

(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 sub-

stances, not to include dental work, fixed or removable, in

his or her mouth at the beginning of the fifteen-minute ob-

servation period;

(Continued on following page)

Al3

Essentially, the legislature is attempting to return the

requirements of BAC test admissibility to the way it was

before our holding in Clark-Munoz.

{ 18 The respondent further argues that the standard

adopted in SHB 3055 is the legislature’s attempt to put

BAC test results on the same level as other scientific tests,

such as DNA (deoxyribonucleic acid) test results. That is,

the legislature is essentially adopting the Frye° rule for

BAC test admissibility. Under the Frye standard, scientific

evidence is admissible when it is generally accepted as

reliable within the relevant scientific community. The

courts need not assess the reliability of the scientific

evidence, they should defer to the judgment of scientists.

State v. Copeland, 130 Wash.2d 244, 254, 922 P.2d 1304

(1996). Once the Frye standard is satisfied, however, the

trial court resumes its role as gatekeeper and may exclude

otherwise admissible evidence by applying the rules of

evidence.

(iv) Prior to the start of the test, the temperature of the

simulator solution as measured by a thermometer approved

of by the state toxicoiogist was thirty-four degrees centi-

grade 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 toxicologist;

(vii) The simulator external standard result did lie be-

tween .072 to .088 inclusive; and

(viii) All blank tests gave results of .000.

* Frye v. United States, 293 F. 1013 (D.C.Cir.1923). This standard

was adopted implicitly in Washington in State v. Woo, 84 Wash.2d 472,

527 P.2d 271 (1974), and explicitly in State v. Canaday, 90 Wash.2d 808,

585 P.2d 1185 (1978).

Al4

7 19 In the DNA analogy, DNA admissibility has been

accepted under Frye; however, challenges to the weight of

the DNA evidence, including laboratory error, the size,

quality, and randomness of Federal Bureau of Investiga-

tion (FBI) databases, and the methodology and practices of

the FBI in declaring a DNA match, are subject to ER 702

admissibility as determined by the trial court. State v.

Cannon, 130 Wash.2d 313, 325, 922 P.2d 1293 (1996).

Similarly, the respondent argues, SHB 3055 sets forth the

standards for reliability; once reliability of the test is

established by a prima facie showing from the State, all

other challenges concerning the accuracy or reliability of

the test, the testing instrument, or the maintenance

procedures necessarily go to the weight of the test results.

That is, the trial court may still utilize the rules of evi-

dence, including ER 702, to determine if the BAC test

results will be admitted.

{ 20 The twin cases of State v. Zwicker, 105 Wash.2d

228, 713 P.2d 1101 (1986), and State v. Long, 113 Wash.2d

266, 778 P.2d 1027 (1989), are helpful to our analysis. Both

cases involve the implied consent statute, RCW 46.20.308,

and its evidentiary counterpart, RCW 46.61.517. The

implied consent statute, passed in 1969, states that any

person who operates a motor vehicle within the state has

consented to have his or her blood or breath tested for

purposes of detecting the presence of alcohol or other

drugs. Consent can be revoked by refusal to submit to the

tests. In the first version of RCW 46.61.517, refusal to

submit to a test was admissible without comment and

required a jury instruction that no inference could be

drawn from the defendant’s refusal. In Zwicker, this court

held that because no inference could be drawn from the

refusal, the evidence was not part of the State’s case in

Al5

chief and therefore could be admitted only if the defendant

first opened the matter by arguing lack of credibility or

competence on the part of the police. In 1985 and 1986, the

legislature amended the statute to read only that refusal

to submit to a BAC test was admissible and deleted the

language concerning the jury instruction or the require-

ment that the evidence be admitted without comment. In

Long, this court interpreted these amendments as a

legislative determination that refusal evidence is admissi-

ble to infer guilt or innocence, commenting “[wJe see no

satisfactory reason not to follow the Legislature’s now

clear intent of rendering refusal evidence fully admissible

in a criminal trial for driving while under the influence of

intoxicants.” Long, 113 Wash.2d at 272-73, 778 P.2d 1027.

In recognizing this legislative rule of evidence, this court

made clear that depending on the facts of a particular

case, a trial court could still exclude such evidence if its

probative value were substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or

misleading to the jury under ER 403.

{21 The same analysis applies here. The legislature

has made clear its intention to make BAC test results fully

admissible once the State has met its prima facie burden.

No reason exists to not follow this intent. The act does not

state such tests must be admitted if a prima facie burden

is met; it states that such tests are admissible. The statute

is permissive, not mandatory, and can be harmonized with

the rules of evidence. There is nothing in the bill, either

implicit or explicit, indicating a trial court could not use its

discretion to exclude the test results under the rules of

evidence. The legislature is not invading the prerogative of

the courts nor is it threatening judicial independence.

Al6

SHB 3055 does not violate the separation of powers

doctrine.

III. DUE PROCESS

{ 22 The appellant argues that under the federal and

state constitutions, he is entitled to a fair trial, including a

right to be convicted by reliable evidence. He argues that

SHB 3055 violates his rights because it admits unreliable

evidence and inappropriately places the burden of proof of

the reliability of the evidence on the defendant. The

appellant’s argument is without merit.

{ 23 The foundational requirements to establish the

admissibility of breath tests were first established in

Baker. Since Baker, the State has always had the initial

burden to satisfy the foundational requirements. Once the

results are admitted, the defendant may introduce evi-

dence attacking their accuracy or reliability. City of Seattle

v. Allison, 148 Wash.2d 75, 79-80, 59 P.3d 85 (2002).

Similarly, SHB 3055 sets forth the requirements the State

must establish, including the four modified Baker re-

quirements, before the BAC test results may be admitted.

Once the State makes a prima facie showing of admissibil-

ity and the court admits the evidence, the defendant may

introduce evidence attacking the reliability or accuracy of

the test. SHB 3055 does not alter the burden of the State

in DUI cases, it is merely codifying it. The appellant -has

not shown an impermissible or unconstitutional shifting of

the evidentiary burden.

CONCLUSION

{ 24 The Motor Vehicle Act does not violate article II,

section 19, the separation of powers doctrine, nor does it

Al7

offend due process as embodied in both the state and

federal constitutions. The trial court is affirmed.

Concurring: ALEXANDER, C.J., MADSEN and

BRIDGE.OWENS, J. (concurring).

{ 25 I concur in the majority’s rejection of the appel-

lant’s constitutional claims. However, while I agree with

the majority that Substitute House Bill 3055 (SHB 3055),

Laws of 2004, ch. 68, does not violate article II, section 19

of the Washington Constitution, I share the dissent’s

disagreement with the method that the majority has

adopted to assess the bill’s compliance with the constitu-

tional provision.

¥ 26 Article II, section 19 comprises “two distinct

prohibitions.” Amalgamated Transit Union Local 587 v.

State, 142 Wash.2d 183, 207, 11 P.3d 762, 27 P.3d 608

(2000). The first clause, the single-subject rule, provides

that “{nJo bill shall embrace more than one subject,” while

the second clause, the subject-in-title (or clear-title) rule,

stipulates that “that [subject] shall be expressed in the

title.” WASH. CONST. art. II, § 19 (emphasis added). As

we have frequently acknowledged, “[t]he purpose of [the

single-subject clause] is to prevent logrolling or pushing

legislation through by attaching it to other legislation,”

' “(T]he single subject rule exists ‘to secure to every distinct

measure of legislation a separate consideration and decision, dependent

solely upon its individual merits.’” Martha J. Dragich, State Constitu-

tional Restrictions on Legislative Procedure: Rethinking the Analysis of

Original Purpose, Single Subject, and Clear Title Challenges, 38 HARV.

J. ON LEGIS. 103, 114 (2001) (quoting Millard H. Ruud, No Law Shall

Embrace More Than One Subject, 42 MINN. L. REV. 389, 390 (1958)).

One type of logrolling involves “the enactment of an unpopular provi-

sion pertaining to one subject by attaching it to a more popular

provision whose subject is unrelated,” City of Burien v. Kiga, 144

(Continued on following page)

Al18

while the aim of the subject-in-title rule is “to notify

members of the Legislature and the public of the subject

matter of the measure.” Amalgamated, 142 Wash.2d at

207, 11 P.3d 762 (emphasis added).

4 27 The majority purports to analyze both the single-

subject and subject-in-title requirements by applying the

rule set forth in St. Paul & Tacoma Lumber Co. v. State, -

40 Wash.2d 347, 243 P.2d 474 (1952). Majority at 779-81. I

would explicitly overrule the St. Paul rule as “incorrect

and harmful.” Not only is the rule contrary to the plain

language of article II, section 19, its initial application in

St. Paul in 1952 was a departure from this court’s prior

article IJ, section 19 decisions expressly rejecting the kind

of title the St. Paul rule permits-a title that provides

insufficient notice of an act’s subject. Additionally, that the

St. Paul rule was not well founded or well explained is

evident in its meager offspring-four cases filed between

1957 and 1971 that do not apply the rule consistently (the

majority opinion, which merely cites the four, makes it

five); moreover, in a 1960 decision, the majority neglected

Wash.2d 819, 825, 31 P.3d 659 (2001), but logrolling could likewise

enable the passage of a bill comprised of a number of provisions that

individually would not have garnered majority support. See Dragich,

supra, at 115.

* The doctrine of stare decisis permits a court to “change a rule of

law” upon “a clear showing that an established rule is incorrect and

harmful before it is abandoned.” In re Rights to Waters of Stranger

Creek, 77 Wash.2d 649, 653, 466 P2d 508 (1970) (emphasis added).

Although the St. Paul rule was never, in my view, “an established rule”

that stare decisis should protect, the St. Paul rule in any case satisfies

the stare decisis “incorrect and harmful” standard. See Reply Br. of

Appellant at 10 n. 11 (asserting that the St. Paul rule is not “an

established rule, but a rule of questionable origin, applied in only five

cases, and not followed since 1971”).

Al19

the rule entirely. Finally, in cases spanning the last 25

_years, this court has silently, but clearly overruled the St.

Paul rule by reaffirming this court’s earliest decisions

interpreting article II, section 19. In sum, I would adhere

to the plain language of article II, section 19 and analyze

SHB 3055’s compliance with the provision by asking

whether SHB 3055 “embrace[s]” a single subject and

whether that subject is “expressed in the title.” Contrary

to the dissent, I would conclude that SHB 3055 satisfies

the single-subject and subject-in-title requirements.

{1 28 The St. Paul Rule. The St. Paul court was asked

to determine the constitutionality of a 1949 bill imposing

an excise tax on a lumber company’s use of articles derived

from timber the company had cut in this state. The lumber

company contended that the 1949 amendments to the

original revenue act of 1935 violated article II, section 19

because “the title of the amendatory act” did not notify

legislators or the public “that the 1949 amendments

changed the scope and object of the law as enacted in

1935.” 40 Wash.2d at 355, 243 P.2d 474. Responding to the

lumber company’s clear-title challenge, the St. Paul court

turned to the following rule:

“If the title identifies and purports to amend a

prior act, any matter properly connected with, or

germane to, the subject expressed in the title of

that act may be included in the body of the

amendatory act. Any matter that could validly

have been enacted as part of the original act un-

der its title is considered germane. If the title of

the original act is sufficient to embrace the mat-

ter contained in the amendatory act, the suffi-

ciency of the title of the latter will not be

inquired into.”

A20

Id. (quoting 1 J.G. SUTHERLAND, STATUTES AND

STATUTORY CONSTRUCTION § 1908, at 345-46 (Frank

E. Horack, Jr., ed., 3d ed.1943) (footnotes omitted)). In

other words, as long as the title of an amendatory bill

identifies the prior act that it is amending, the new bill

may permissibly include “‘[a]ny matter that could validly

have been enacted as part of the original act under its

title.’” Id. The St. Paul court thus began its application of

the rule by quoting the title of the original revenue act of

1935 — “‘AN ACT relating to revenue and taxation; ...

providing for the levy and collection of a tax upon the use

of personal property’” — and went on to observe that “[t}he

title of the 1949 amendatory act states that it is an act

relating to revenue and taxation and denominates specifi-

cally the sections of the 1935 act, as amended, which it

further amends.” Jd. (citation omitted). Concluding that

“(tlhe title of the 1935 act was certainly broad enough to

have permitted, as part of the original act, the 1949

amendments with which we are concerned,” the St. Paul

court rejected the lumber company’s clear-title challenge

with no further discussion. Jd.

{| 29 The St. Paul court applied the rule to the lumber

company’s clear-title challenge without acknowledging

that the rule is inconsistent with the plain language of

article II, section 19 and contrary to this court’s earliest

decisions interpreting the clear-title provision. As the

. dissent correctly points out, given that article II, section

19 reads, “[nJo bill shall embrace more than one subject”

(emphasis added), “[c]learly, the plain text of our constitution

does not differentiate between ‘original’ and ‘amendatory

bills.” Dissent at 790-91 n. 1. By its plain language, article

II, section 19 requires that any biJl, whether original or

A21

amendatory, must embrace a single subject that is ex-

pressed in that bill’s title.

{ 30 By adopting a rule that permits the title of an

amendatory bill to say nothing more than “An Act amend-

ing a Prior Act,” the St. Paul court ignored this court’s

earliest article II, section 19 decisions rejecting precisely

the type of title that the St. Paul rule permits. In a brief

filed in Fray v. Spokane County, 134 Wash.2d 637, 952

P.2d 601 (1998), amicus curiae Washington State Council

of Police Officers explained that “[tlhe delegates to the

Constitutional Convention did not write on a blank slate”

when they drafted article II, section 19, since “[t]he Or-

ganic Act which organized the Territory of Washington had

similarly required that ... ‘every law shall embrace but

one object, and that shall be expressed in the title.’” Br. of

Amicus Curiae Wash. State Council-of Police Officers at 7

(Fray v. Spokane County, No. 65236-8 (Wash.Sup.Ct.1998))

(quoting U.S. Stats. 32nd Cong., Sess. II, ch. 90, §6

(1853)). The amicus recalled that in Harland v. Territory, 3

Wash. Terr. 131, 13 P. 453 (1887), “[t]he leading case

interpreting this clause of the Organic Act,” id., the court

considered the permissibility under the Organic Act of a

statute entitled, “‘{aln act to amend section 3050, chapter

238, of the Code of Washington Territory.’” 3 Wash. Terr. at

137, 13 P. 453. The Harland court concluded that “the

clear weight of authority, and certainly sound reason,

[was] against the position that a reference to a section in

the title of an amendatory act without more is in any case

sufficient” to satisfy the clear-title provision in the Organic

Act. Id. at 151, 13 P. 453.

{ 31 Fifteen years later, in State ex rel. Seattle Electric

Co. v. Superior Court, 28 Wash. 317, 68 P. 957 (1902), the

court reaffirmed Harland, holding that the title “‘{a]n act

A22

to amend section 5645 of Ballinger’s Annotated Codes and

Statutes of Washington’” failed to satisfy article II, section

19. Id. at 321, 68 P. 957. The court fully explained its

holding:

[T]he mandate of the constitution seems to us so

plain that we conceive it to be our duty to hold

squarely that a mere reference to a section in the

title of an act does not state a subject. What is the

significance of the word “subject,” in this connec-

tion? Webster defines it as “that of which any-

thing is affirmed or predicated; the theme of a

proposition or discourse; that which is spoken of.”

To say that mere reference to a numbered section

embodies the idea of a theme, proposition, or dis-

course, it seems to us, is not sustained by the or-

dinary understanding of those terms. The theme

of a legislative act is that of which it treats, and

an amending act treats of the theme covered by

the act sought to be amended. We therefore see

no escape from the conclusion that the title of an

amending act must contain some words which

indicate the theme or proposition of which the act

sought to be amended treats. :

Id. at 325-26, 68 P. 957 (emphasis added). The decisions in

Harland and Seattle Electric-cases decided closely before

and after the Constitutional Convention-undeniably refute

the claim made by the majority in the present case that

the St. Paul rule “does not undercut our constitution, but

rather reflects the general understanding of article II,

section 19 at the time it was adopted.” To the contrary, the

* Majority at 780. To support its assertion that the rule adopted in

St. Paul “reflected the common understanding of how to interpret

similar state constitutional provisions,” the majority cited two cases

(Continued on following page)

A23

rule that the St. Paul court adopted in 1952-a rule that

reduced the descriptive title of an amendatory act to

surplusage in an article II, section 19 inquiry-was a sharp

departure from this court’s understanding of the subject-

in-title provision in 1887 and 1902.

4 32 In sum, the St. Paul court adopted a rule that

was “incorrect and harmful.” Jn re Rights to Waters of

Stranger Creek, 77 Wash.2d 649, 653, 466 P.2d 508 (1970).

The St. Paul court negated, with neither discussion nor

acknowledgment, this court’s prior decisions, turning

instead to a treatise that stated a principle unsupported

by any citations to Washington cases. See 1 SUTHER-

LAND, supra, § 1908. Moreover, the St. Paul court made

notice irrelevant and thereby contravened the aim of the

subject-in-title requirement-the notification of legislators

and the public as to the subject of a piece of legislation.

The treatise on which the St. Paul court relied specifically

stated that, under the rule at issue, “[n]o statement of the

matter with which the amendatory act deals nor any

expression of the particulars in which the original act or

section is altered is necessary.” /d.; see also Water Dist. No.

105 v. State, 79 Wash.2d 337, 340, 485 P.2d 66 (1971)

(expressly stating that, under the St. Paul rule, “the issue

is net ... whether the title of the [amendatory] act gives

notice of the subject matter contained therein”).

{ 33 The St. Paul Cases. In the 20 years after St. Paul

was decided, the St. Paul rule, which was directed at the

subject-in-title requirement of article II, section 19, was

applied in four cases and ignored by the majority in

from other jurisdictions. Majority at 780 (citing Morford v. Unger, 8

Iowa 82 (1859); In re Miller, 29 Ariz. 582, 244 P. 376 (1926)).

A24

another. In two of the four cases, the article II, section 19

inquiry was restricted to the subject-in-title requirement,

although it is not entirely clear that the challenge had

been likewise restricted. In Goodnoe Hills School District

No. 24 v. Forry, 52 Wash.2d 868, 329 P.2d 1083 (1958), the

court noted the appellants’ contention that an amendatory

act violated article II, section 19 and their “argu[ment]

that included within [the amendatory act’s] title are two

subjects.” Jd. at 873, 329 P.2d 1083. The Goodnoe court

applied the St. Paul rule and concluded that the title of a

1955 amendatory act was not “constitutionally repug-

nant,” since it came within the general title of the original

1953 legislation. Jd. at 873-74, 329 P.2d 1083. Similarly, in

_ Belancsik v. Overlake Memorial Hospital, 80 Wash.2d 111,

492 P2d 219 (1971), the issue is initially defined as

whether an amendatory statute violated article II, section

19, but the court applied the St. Paul rule and focused its

inquiry on the constitutional adequacy of the title.

{ 34 In the other two St. Paul cases, the court applied

the St. Paul rule to the subject-in-title inquiry and then

considered the single-subject requirement, but the courts

tory act. In Keeting v. Public Utility District No. 1 of

Clallam County, 49 Wash.2d 761, 306 P.2d 762 (1957), the

single-subject inquiry was framed as whether “the [origi-

nal and amendatory] acts embrace more than one subject.”

Id. at 764, 306 P.2d 762. The court appeared to conclude

that the amendatory act’s changes in the original law

constituted a single subject because they “related to the

single subject” expressed in the original act’s title. Jd.

However, while the single-subject analysis in Keeting was

evidently affected by the St. Paul rule, this court took the

customary approach to single-subject analysis in Water

A25

District, 79 Wash.2d 337, 485 P.2d 66. The Water District

court concluded that “[t]he subjects contained in the body

of the [amendatory] act ... are naturally and reasonably

connected with the general subject, relating to water

districts, expressed in the [amendatory act’s] title.” Jd. at

342, 485 P.2d 66.

{ 35 That the St. Paul court did not adequately

explain how the rule was to be applied is not only appar-

ent in the four St. Paul cases, it is evident in the way the

majority in the present case has applied the rule. Even

though the appellant has challenged the constitutionality

of SHB 3055 on both single-subject and subject-in-title

grounds, the majority rests after applying the St. Paul

rule, a rule that by its terms was intended only to test the

constitutionality of an amendatory act’s title. The majority

must provide a single-subject analysis and resolve the

question raised by the differing approaches in Keeting and

Water District — that is, what effect, if any, does the St.

Paul rule have on the single-subject analysis. An addi-

tional shortcoming in the majority’s decision to “reaffirm

the St. Paul cases,” majority at 780, is the majority’s

failure to acknowledge that, in the time period spanned by

the St. Paul cases, this court decided Price v. Evergreen

Cemetery Co., 57 Wash.2d 352, 357 P.2d 702 (1960). There,

a majority of the court failed to apply the St. Paul rule. See

id. at 358-59, 357 P.2d 702 (Finley, J., dissenting). In sum,

had the majority in the present case done more than

merely cite the four St. Paul cases, see majority at 779 n.

2, it would have discovered that the St. Paul rule was not

applied clearly in the St. Paul cases or adopted consis-

tently in the time period spanned by those cases.

4¥ 36 Cases Silently Overruling the St. Paul Rule. As

the appellant has pointed out, while the St. Paul rule has

A26

been applied in only five cases (most recently in 1971),

dozens of cases could be cited in which the court weighed the

constitutionality of an amendatory act without recourse to

the title of the original act. See Reply Br. of Appellant at 10 n.

11 (collecting cases). For example, in Patrice v. Murphy, 136

Wash.2d 845, 966 P.2d 1271 (1998), this court was asked to

determine whether the title of an amendatory act, ““‘AN ACT

Relating to court costs,’” was sufficient to express the subject

of an act that required arresting officers to provide interpret-

ers for hearing-impaired persons. Jd. at 853, 966 P.2d 1271.

The Patrice court made its determination that the title was

constitutionally insufficient by looking exclusively at the title

of the amendatory act, silently ignoring the St. Paul rule.

Indeed, the weight of our case law has adhered to two

principles contrary to the St. Paul rule: that, for purposes of

a subject-in-title challenge to an amendatory act, the rele-

vant title is the title of the amendatory act and the amenda-

tory act’s title must do more than point to the act being

amended. See Seattle Elec., 28 Wash. at 325-26, 68 P. 957;

Fray, 134 Wash.2d at 654-55, 952 P.2d 601 (reaffirming that

the “mere reference to a section in the title of an act dees not

state a subject” (quoting Seattle Elec., 28 Wash. at 325, 68 P.

957)); State v. Thomas, 103 Wash.App. 800, 808, 14 P.3d 854

(2000) (defining the relevant title as “the word, phrase, or

phrases following ‘AN ACT Relating to ...’ and preceding

the first semicolon”).

{ 37 SHB 3055’s Compliance with Article II, Section 19.

This court has adopted a framework that makes the single-

subject analysis contingent on the preliminary labeling of the

bill’s title as either “general” or “restrictive.” A general title

* See Amalgamated, 142 Wash.2d at 207-11, 11 P.3d 762. But see

Pierce County v. State, 150 Wash.2d 422, 431 n. 3,78 P.3d 640 (2003)

(Continued on following page)

A27

“is broad rather than narrow.” Amalgamated, 142 Wash.2d

at 207, 11 P.3d 762. Where a title is general, the act will

have a single subject if the parts of the bill are germane to

the title and rationally related to each other. Citizens for

Responsible Wildlife Mgmt. v. State, 149 Wash.2d 622, 632-

33, 71 P.3d 644 (2003); Amalgamated, 142 Wash.2d at 209,

11 P.3d 762; Pierce County v. State, 150 Wash.2d 422, 431

n. 3, 78 P.3d 640 (2003).

{ 38 I would define the title of SHB 3055, “AN ACT

Relating to admissibility of DUI [driving under the influ-

ence of an intoxicant) tests,” as general. Although “DUI”

does refer to a specific statute, the average citizen would

interpret the acronym more broadly as a reference to

alcohol-related driving offenses. I would conclude that,

because the component parts of SHB 3055 are rationally

related to the general title and to each other, the act

embraces a single subject. The incidental subjects of SHB

3055 are search warrants under the implied consent

statute, requirements governing an officer’s request for a

blood draw, warnings to be given to a suspect under the

implied consent statute prior to administering a blood or

(noting party’s question as to “‘whether going through the exercise of

labeling a title as “broad” or “restrictive” really assists the constitu-

tional analysis’”). At least one commentator has emphasized that the

single-subject analysis should precede the analysis of the title and

should be directed to the bill’s contents: “It is well-established that even

when combined, the single subject/clear title provision sets forth two

independent requirements-that a bill have only one subject, and that

the bill’s title clearly express that subject. The common phrasing of the

rule suggests that clear title analysis cannot proceed until the subject of

the bill has been determined and found to be ‘single.’. . . [T]he subject of

a bill should be measured by the content of its provisions. The provi-

sions must relate to each other and together must constitute a single

subject. The title must express the subject, but the title is not its test.”

Dragich, supra note 1, at 114, 146 (emphasis added) (footnote omitted).

A28

breath alcohol concentration (BAC) test, and the founda-

tional requirements for admission of BAC test results. The

incidental subjects are directed toward providing uniform

standards for the admissibility of BAC tests and relate to

how or when the test must be conducted to ensure its

validity and admissibility.

{ 39 I would likewise conclude that the subject of SHB

3055 was sufficiently expressed in the bill’s title to pass

article II, section 19 muster. To satisfy the constitutional

requirement, a bill’s “title need not be an index to the

contents, nor must it provide details of the measure.”

Citizens, 149 Wash.2d at 639, 71 P.3d 644. The title of SHB

3055 is a general expression of the bill’s contents and is

sufficient to notify legislators and the public that the bill

contains provisions rationally related to the admissibility

of tests administered pursuant to alcohol-related driving

offenses.

{ 40 In sum, I concur in the majority’s conclusion that

SHB 3055 does not violate article I, section 19, but I join

the dissent in rejecting the majority’s reliance on the S¢.

Paul rule to assess the bill’s compliance with the constitu-

tional provision. The St. Paul court mistakenly imported

into its article II, section 19 analysis a rule applicable to a

type of bill title that this court had already rejected

decades earlier as constitutionally repugnant. The major-

ity’s resurrection of the St. Paul rule effectively provides a

safe constitutional harbor for amendatory acts that give

absolutely no notice of their contents beyond a spare

reference to the act being amended. Because the St. Paul

rule subverts the purpose of the subject-in-title require-

ment of article II, section 19, this court should explicitly

disapprove the rule.

A29

Concurrence: FAIRHURST and CHAMBERS, JJ.

SANDERS, J. (dissenting).

{ 41 In 2004 the legislature enacted Substitute House

Bill 3055 (SHB 3055), entitled, “AN ACT Relating to

admissibility of DUI [driving under the influence of an

intoxicant] tests.” Substitute H.B. 3055, 58th Leg., Reg.

Sess. (Wash.2004); Laws of 2004, ch. 68. This statute

violates article II, section 19 of the Washington State

Constitution by (1) embracing multiple subjects and (2)

including subjects not expressed in its title. It also violates

separation of powers by impermissibly invading the article

IV judicial power reserved exclusively to the courts to

determine the admissibility of evidence. I would hold SHB

3055 unconstitutional in its entirety and therefore dissent.

I. Article IT, Section 19

442 The majority undermines the protections of

article II, section 19 by misapplying St. Paul & Tacoma

Lumber Co. v. State, 40 Wash.2d 347, 355, 243 P.2d 474

(1952) to hold the subject of SHB 3055 is expressed in its

title. The majority then compounds its error by conflating

the two distinct inquiries under article II, section 19,

concluding the subject-in-title analysis disposes of the

multiple subject claim as well.

q 43 Article II, section 19 of the Washington Constitu-

tion provides, “[njo bill shall embrace more than one

subject, and that shall be expressed in the title.” WASH.

CONST. art. II, § 19. This clause mandates two distinct

prohibitions: “‘(1) No bill shall embrace more than one

subject; and (2) the subject of every bill shall be expressed

in the title.’” Patrice v. Murphy, 136 Wash.2d 845, 852, 966

A30

P.2d 1271 (1998) (quoting State ex rel. Wash. Toll Bridge

Auth. v. Yelle, 32 Wash.2d 13, 23, 200 P.2d 467 (1948)). The

first prohibition, the single-subject rule, ensures legisla-

tors are not forced to vote for provisions they do not

support in order to secure the enactment of those they do,

a practice known as “logrolling” legislation. The second

prohibition, the subject-in-title rule, ensures legislators

and the public are notified of the subject matter of a bill.

“We have declared that when laws are enacted in violation

of [these rules], the courts will not hesitate to declare them

void.” State ex rel. Wash. Toll Bridge Auth., 32 Wash.2d at

24, 200 P.2d 467.

{ 44 Constitutional challenges raise questions of law

subject to de novo review. City of Redmond v. Moore, 151

Wash.2d 664, 668, 91 P.3d 875 (2004). :

II. Article II, Section 19’S Single-Subject Rule

{45 Whether a measure contains more than one

subject “is founded on the question whether a measure is

drafted in such a way that those voting on it may be

required to vote for something of which the voter disap-

proves in order to obtain approval of an unrelated law.”

Amalgamated Transit Union Local 587 v. State, 142

Wash.2d 183, 212, 11 P.3d 762, 27 P.3d 608 (2000). For a

bill to pass constitutional muster under the single-subject

rule “‘there must be some rational unity between the

matters embraced in the act, the unity being found in the

general purpose of the act and the practical problems of

efficient administration.’” State ex rel. Wash. Toll Bridge

Auth. v. Yelle, 61 Wash.2d 28, 33, 377 P.2d 466 (1962)

(quoting State ex rel. Test v. Steinwedel, 203 Ind. 457, 467,

180 N.E. 865, 868 (1932)). Rational unity is lacking if a

A31

bill’s provisions are not necessary to implement one

another. Amalgamated, 142 Wash.2d at 217, 11 P.3d 762.A

bill embracing more than one subject must be struck down

in its entirety because “we cannot know if either subject

... would have garnered popular support standing alone.”

City of Burien v. Kiga, 144 Wash.2d 819, 828, 31 P.3d 659

(2001).

4146 SHB 3055 lacks rational unity between its

provisions. In addition to addressing the admissibility of

DUI tests, SHB 3055, sections 2 and 3 also authorize

search warrants for a person’s breath or blood, reduce the

requirements of implied consent warnings to require only

substantial compliance by the police, address license

sanctions stemming from arrests, and implement proce-

dural changes regarding the arrest of persons under 21

years of age for driving impaired. None of these subjects is

necessary to implement the DUI test admissibility provi-

sions of section 4 of SHB 3055. Consequently, SHB 3055

violates the single-subject prong of article II, section 19 of

the Washington Constitution. Amalgamated, 142 Wash.2d

at 217, 11 P.3d 762.

4 47 This conclusion is further reinforced by actual

evidence of logrolling. Section 2 of SHB 3055 denies

occupational licenses to drivers who refuse breath tests.

However latey im the same session the legislature unani-

mously passed SHB 2660 to allow occupational licenses for

such drivers. LAWS OF 2004, CH. 95 (Substitute H.B.

2660, 58th Leg., Reg. Sess. (Wash.2004)). The passage of

these bills cannot be logically reconciled other than to

conclude those voting for SHB 3055 voted for at least one

provision they did not support to ensure the passage of

those they did. This is evidence of a textbook example of

logrolling in violation of our constitution.

A32

4 48 Inexplicably, the majority's analysis of whether

SHB 3055 addresses more than one subject is limited to its

title, a constitutionally separate inquiry, and lacks any

meaningful scrutiny of the bill’s substance. See majority at

779-81. As a preliminary matter it must be noted the

Washington Constitution does not provide, and we have

never held, a bill which impermissibly embraces more

than one subject is nonetheless constitutional because its

title, or the title of a bill it purports to amend, somehow

rectifies the violation. Furthermore, the case relied on by

the majority for its holding, St. Paul, 40 Wash.2d 347, 243

P.2d 474’ does not support its resolution of the single-

subject claim at all.

{ 49 In St. Paul the petitioners challenged the consti-

tutionality of a bill amending the revenue act under article

II, sections 19, 37, and 38, “claimling] that the 1949

amendments changed the scope and object of the law as

enacted in 1935 and the title of the amendatory act gave

no notice of such a purpose.” St. Paul, 40 Wash.2d at 355,

243 P.2d 474. Thus, the petitioners were challenging the

amendatory act solely on the basis of its alleged violation

* St. Paul was followed by this court on only four occasions, most

recently 25 years ago, and with good reason: its holding has no basis in

the constitution. “Appropriate constitutional analysis begins with the

text and, for most purposes, should end there as well.” Malyon v. Pierce

County, 131 Wash.2d 779, 799, 935 P.2d 1272 (1997). Article II, section

19 says, “{nJo bill shall embrace more than one subject, and that shall

be expressed in the title.” Clearly, the plain text of our Constitution

does not differentiate between “original” and “amendatory” bills. There

is no principled reason, and the majority offers none, to forgo article II,

section 19 analysis simply because a bill purports to amend another.

This court should recognize what the past 25 years in our article II,

section 19 jurisprudence indicate: St. Paul and its progeny undermine

the constitutional provisions they purport to interpret, are inconsistent

with subsequent precedent, and should be overruled.

A33

of the subject-in-title rule, not the single-subject rule or

both. This conclusion is reflected in the holding of that

case:

“If the title identifies and purports to amend a

prior act, any matter properly connected with, or

germane to, the subject expressed in the title of

that act may be included in the body of the

amendatory act. Any matter that could validly

have been enacted as part of the original act un-

der its title is considered germane. If the title of

the original act is sufficient to embrace_the mat-

ter contained in the amendatory act, the suffi-

ciency of the title of the latter will not be inquired

into.”

St. Paul, 40 Wash.2d at 355, 243 P.2d 474 (quoting 1 J.G.

SUTHERLAND, STATUTES AND STATUTORY CON-

STRUCTION § 1908, at 345-46 (Frank E. Horack, Jr., ed.

(3d ed.1943) (emphasis added))).

{ 50 Because it is expressly limited to challenges to

the sufficiency of only the title of an act, the holding of St.

Paul is not relevant, to Theo Jensen’s single-subject claim.

Since it is in violation of the single-subject rule, SHB 3055

is invalid in its entirety. Kiga, 144 Wash.2d at 828, 31 P.3d

659.

III. Article II, Section 19'S Subject-in-Title Rule

{ 51 It is also argued SHB 3055 violates the subject-

in-title rule. This rule requires the subject of a bill be

expressed in its title. We have explained its practical

application as follows:

“The wisdom of the rule suggests itself, in that

the reader, whether a member of the legislature

A34

or otherwise, may, by a mere glance at a few

catch words in the title, be apprised of what the

act treats, without further search. Does the title

of the act in question contain such a statement of

the subject-matter?”

Patrice, 136 Wash.2d at 852, 966 P.2d 1271 (quoting State

ex rel. Seattle Elec. Co. v. Superior Court, 28 Wash. 317,

321, 68 P. 957 (1902)).

152 SHB 3055 states it is “AN ACT Relating to

admissibility of DUI tests; amending RCW 46.61.506;

reenacting and amending RCW 46.20.308 and 46.20.3101;

and creating a new section.” But that is not the “title” of

SHB 3055 for the purposes of our analysis. “The title

relevant to the article II, section 19 inquiry is the word,

phrase, or phrases following ‘AN ACT Relating to...’ and

preceding the first semicolon.” State v. Thomas, 103

Wash.App. 800, 808, 14 P.3d 854 (2000) (citing Fray v.

Spokane County, 134 Wash.2d 637, 655, 952 P.2d 601

(1998); Patrice, 136 Wash.2d at 853, 966 P.2d 1271). Our

analysis must focus on the narrative description of the bill,

and not on the “ministerial recital of [its] sections.” Jd. at

809, 14 P.3d 854. “[A] ‘mere reference to a section in the

title of an act does not state a subject.’” Fray, 134 Wash.2d

at 654-55, 952 P.2d 601 (quoting State ex rel. Seattle Elec.

Co., 28 Wash. at 325, 68 P. 957). The title of SHB 3055 is

“AN ACT Relating to admissibility of DUI tests.” (Empha-

sis added.)

4 53 We next consider whether the title is general or

restrictive. A general title is broad rather than narrow,

A35

comprehensive and generic rather than specific.’ Amalga-

mated, 142 Wash.2d at 207-08, 11 P.3d 762. Conversely, a

restrictive title is one where “‘a particular part or branch

of a subject is carved out and selected as the subject of the

legislation.’” State v. Broadaway, 133 Wash.2d 118, 127,

942 P.2d 363 (1997) (quoting Gruen v. State Tax Comm’n,

35 Wash.2d 1, 23, 211 P.2d 651 (1949), overruled on other

grounds by State ex rel. State Fin. Comm. v. Martin, 62

Wash.2d 645, 384 P.2d 833 (1963)).

{ 54 In my view the title “AN ACT Relating to admis-

sibility of DUI tests” is general. Mr. Jensen is correct to

point out the title does not refer to all BAC (breath or

blood alcohol concentration) tests; however this fact alone

is not dispositive. The title of SHB 3055 meets the criteria

of “la] few well-chosen words, suggestive of the general

subject stated,” State ex rel. Scofield v. Easterday, 182

Wash. 209, 212, 46 P.2d 1052 (1935) and therefore consti-

tutes a general title encompassing issues related to the

subject of admissibility of DUI tests.

* Examples of general titles include: “AN ACT Relating to violence

prevention.” In re Boot, 130 Wash.2d 553, 566, 925 P.2d 964, 971

(1996); “AN ACT Relating to Community Colleges.” Wash. Educ. Ass’n

v. State, 97 Wash.2d 899, 906-07, 652 P.2d 1347 (1982); “An Act

Relating to the death penalty.” State v. Grisby, 97 Wash.2d 493, 498,

647 P.2d 6 (1982); “An Act Relating to industrial insurance.” Wash.

State Sch. Dirs. Ass’n v. Dep't of Labor & Indus., 82 Wash.2d 367, 371,

510 P.2d 818 (1973).

* Examples of restrictive titles include: “An Act Relating to

increasing penalties for armed crimes.” Broadaway, 133 Wash.2d at

123, 942 P.2d 363; “An Act Relating to the acquisition of property by

public agencies.” Daviscourt v. Peistrup, 40 Wash.App. 433, 437, 698

P.2d 1093 (1985); “AN ACT relating to the rights and disabilities of

aliens with respect to land.” De Cano v. State, 7 Wash.2d 613, 623, 110

P.2d 627 (1941).

A36

¥ 55 As discussed above, the references to the sections

of chapters 46.20 and 46.61 RCW that SHB 3055 reenacts

and amends included after its title do not state a subject

and are not part of subject-in-title analysis. Fray, 134

Wash.2d at 654-55, 952 P2d 601 (citing State ex rel.

Seattle Elec. Co., 28 Wash. at 325, 68 P. 957). Conse-

quently, the question before this court is whether a reader

would be apprised of SHB 3055’s subject matter by reading

its title. Patrice, 136 Wash.2d at 852, 966 P.2d 1271. The

answer is no.

7 56 Although “‘[t]he title to a bill need not be an

index to its contents; nor is the title expected to give the

details contained in the bill,’” Washington Federation of

State Employees v. State, 127 Wash.2d 544, 555, 901 P.2d

1028 (1995),* the bill’s title must “lead to an inquiry into

the body of the act, or indicate to an inquiring mind the

scope and purpose of the law.” Young Men’s Christian Ass’n

v. State, 62 Wash.2d 504, 506, 383 P.2d 497 (1963). Here,

the title provides no indication SHB 3055, in addition to

involving the admissibility of DUI tests, also includes

provisions affecting search warrants for breath and blood,

breath test machines in medical facilities, implied consent

warnings, license sanctions, and procedural changes

regarding the arrest of persons under 21 years of age. See

SHB 3055, §§ 2, 3.

{57 This court was confronted with a similar scenario

in Patrice. There the challenged bill was entitled, “AN

ACT Relating to court costs” but also included amend-

ments requiring the appointment of interpreters to assist

* Quoting Treffry v. Taylor, 67 Wash.2d 487, 491, 408 P2d 269

(1965).

A37

witnesses in various legal proceedings. Although these

services would undoubtedly impact the court costs refer-

enced in the title of the bill, this court nonetheless held

article II, section 19 had been violated. Relying on Fray for

the proposition that a “‘mere reference to a section in the

title of an act does not state a subject,’” Fray, 134 Wash.2d

at 654-55, 952 P.2d 601 (quoting State ex rel. Seattle Elec.

Co., 28 Wash. at 325, 68 P. 957), we concluded the bill’s

subject was not expressed in its title because “‘AN ACT

Relating to court costs’” “fail[ed] to mention anything

about the inclusion of provisions relating to qualified ASL

[American Sign Language] interpreters, legal proceedings,

police investigations, or arrests.” Patrice, 136 Wash.2d at

853, 966 P.2d 1271.

1 58 The same analysis applies here. The title “AN

ACT Relating to admissibility of DUI tests” fails to men-

tion search warrants, breath test equipment, implied

consent warnings, or license sanctions. In short, the title

does not provide an indication of the scope and purpose of

the law. Because it fails to meet this standard, the title of

SHB 3055 violates the subject-in-title rule of article II,

section 19 of the Washington Constitution. Sections not

related to the subject of admissibility of DUI tests should

therefore be struck down. Patrice, 136 Wash.2d at 852, 966

P.2d 1271.

q 59 The majority misidentifies the title of SHB 3055

when it holds the title expresses the bill’s subject matter.

As discussed above, the title of SHB 3055 for the purposes

of evaluating its constitutionality under article II, section

19 is “AN ACT Relating to admissibility of DUI tests.” St.

Paul requires the title of the amendatory act to identify

and_purport to amend a prior act. See St. Paul, 40 Wash.2d

at 355, 243 P.2d 474 (“‘If the title identifies and purports to

A38

amend a prior act ....’” (emphasis added) (quoting 1 J.G.

SUTHERLAND, supra, § 1908)). “AN ACT Relating to

admissibility of DUI tests” clearly does neither.

{ 60 The majority attempts to shoehorn SHB 3055

into the St. Paul framework by including the recitation of

the statutory provisions affected as part of its title, major-

ity at 7, but doing so runs afoul of the rule that constitu-

tional inquiries focus solely on the narrative description of

the act. Thomas, 103 Wash.App. at 808, 14 P.3d 854 (citing

Fray, 134 Wash.2d 637, 952 P.2d 601; Patrice, 136 Wash.2d

845, 966 P.2d 1271). Because the title of SHB 3055 does

not identify and purport to amend a prior statute, an

inquiry into its constitutionality is not barred by the

holding of St. Paul.

IV. Legislative Invasion of Judicial Power

4 61 Mr. Jensen also argues SHB 3055 invades the

article [TV judicial power because it prevents the courts

from determining the admissibility of BAC tests once the

State has met its prima facie burden under subsection

4(4)(a) of SHB 3055.

4 62 “[T}here is no liberty, if the judiciary power be not

separated from the legislative and executive. Were it

joined with the legislative, the life and liberty of the

subject would be exposed to arbitrary control .... ” An

independent and vigilant judiciary is essential to the

preservation of individual rights in the face of governmen-

tal encroachment, constituting what James Madison

* Baron De Montesquieu, The Spirit of the Laws 152 (Thomas

Nugent, trans., Franz Neumann ed., Hafner Press 1949) (1748).

A39

described as “‘an impenetrable bulwark against every

assumption of power in the legislative or executive.’”

Thus, the separation of powers doctrine ensures “funda-

mental functions of each branch remain inviolate.” Carrick

v. Locke, 125 Wash.2d 129, 135, 882 P.2d 173 (1994).

Echoing the Founders’ vision of an independent judiciary,

the United States Supreme Court has explained,

[T]he “judicial Power of the United States”

vested in the federal courts by Art. III, § 1, of the

Constitution can no more be shared with the Ex-

ecutive Branch than the Chief Executive, for ex-

ample, can share with the Judiciary the veto

power, or the Congress share with the Judiciary

the power to override a Presidential veto. Any

other conclusion would be contrary to the basic

concept of separation of powers and the checks

and balances that flow from the scheme of a tri-

partite government.

United States v. Nixon, 418 U.S. 683, 704, 94 S.Ct. 3090,

41 L.Ed.2d 1039 (1974) (quoting THE FEDERALIST, NO.

47, at 313 (S. Mittell ed.1938)), superseded by statute on

other grounds by Bourjaily v. United States, 483 U.S. 171,

179, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).

4 63 Our constitution exclusively vests the judicial

power in the courts, not the legislature: “The judicial

power of the state shall be vested in a supreme court....”

WASH. CONST. art. IV, § 1. The judicial power is the

* Creating the Bill of Rights: The Documentary Record from the

First Federal Congress 83-84 (Helen E. Veit et al. eds., Johns Hopkins

Univ. Press 1991) (quoting 1 Annals of Congress 439 (Joseph Gales ed.,

1789)).

A40

power to do that which the courts have traditionally done.’

“This court has recognized the inherent power and obliga-

tion of the judiciary to control all its necessary functions to

promote the effective administration of justice.” State v.

Wadsworth, 139 Wash.2d 724, 740, 991 P.2d 80 (2000).

This inherent power includes determining the admissibil-

ity of evidence. See, e.g., State v. Demery, 144 Wash.2d 753,

758, 30 P.3d 1278 (2001) (“trial court has wide discretion to

determine the admissibility of evidence”); State v. Atsbeha,

142 Wash.2d 904, 913, 16 P.3d 626 (2001) (“Admissibility

of evidence generally is within the sound discretion of the

trial court.”) (citing State v. Ellis, 1836 Wash.2d 498, 504,

963 P.2d 843 (1998)). “If the legislature attempted to...

abolish or abridge the power of the courts, such an attempt

would be unconstitutional and void.” Deskins v. Waldt, 81

Wash.2d 1, 2-3, 499 P2d 206 (1972) (citing Blanchard uv.

Golden Age Brewing Co., 188 Wash. 396, 63 P.2d 397 (1936)).

Yet surrender of judicial independence is precisely what the

majority does when it upholds a bill shackling the power of

the courts to do that which the courts have traditionally

done: Determine the admissibility of evidence.

{64 Courts are vested with “the inherent power to

govern court procedures.” State v. Fields, 85 Wash.2d 126,

129, 530 P.2d 284 (1975).° “When a court rule and a statute

" Richard B. Sanders, Battles for the State Constitution: A Dis-

senter’s View, 37 Gonz. L.Rev. 1, 8, (2001/02) (quoting “‘What the

judicial power is, is what the judicial power has been.’” Justice Antonin

Scalia, Oral Remarks at the Federalist Society Separation of Powers

Seminar, Durango, Colo. (Sept. 28, 2001)).

* The majority asserts the power to promulgate the rules of

evidence “is a legislatively delegated power of the judiciary.” Majority

wt 78). Surely the majority is not suggesting that had RCW 2.04.190

net, ee enacted, we would be powerless to adopt rules of evidence. Our

power do decide the admissibility of evidence stems from the constitu-

(Continued on following page)

A41

conflict, the nature of the right at issue detennines which

one controls.” State v. W.W., 76 Wash.App. 754, 758, 887 P.2d

914 (1995). “If the right is substantive, then the statute

prevails; if it is procedural, then the court rule prevails.” Id.

The admissibility of evidence is a procedural matter.’ The

resolution of this claim turns on whether the language of

SHB 3055 is permissive, preserving the courts’ authority to

exclude BAC test results under the rules of evidence, or

mandatory, in which case it would be invalid. State uv.

Zwicker, 105 Wash.2d 228, 238, 713 P.2d 1101 (1986). SHB

3055 provides:

Nothing in this section shall be deemed to pre-

vent the subject of the test from challenging the

reliability or accuracy of the test, the reliability

or functioning of the instrument, or any mainte-

nance 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 con-

tained 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 re-

sult.

SHB 3055, subsection 4(4)(c) (emphasis added).

tion, independently of any auxiliary statutory authority. See Fields, 85

Wash.2d at 129, 530 P.2d 284. The legislature has no judicial power to

delegate.

* Commonwealth v. Alexander, 5 S.W.3d 104, 106 (Ky.1999) (“The

admissibility of evidence is governed by the Kentucky Rules of Evidence

and is procedural in nature.”); Hrouda v. Winne, 112 A.D.2d 304, 305,

491 N.Y.S.2d 749 (N.Y.App.Div.1985) (“Rules governing the admissibil-

ity of evidence are procedural matters.”); Kerr v. Palmieri, 325 Mass.

554, 557, 91 N.E.2d 754 (1950) (“statute relat{ing] to the admissibility

of evidence is . . . procedural”).

A42

4 65 According to the majority SHB 3055 is permissive

because it “does not state [BAC] tests must be admitted if

a prima facie burden is met; it states that such tests are

admissible.” Majority at 18. This conclusion is untenable

when one considers the plain text of subsections 4(4)(a)

and 4(4)(c). Subsection 4(4)(a) of SHB 3055 provides

breath tests “shall be admissible at trial” once the State

produces prima facie evidence to meet certain enumerated

criteria concerning the administration of such tests.”

Under subsection 4(4)(c), once the State meets its prima

facie burden, a defendant may not challenge the admissi-

bility of the BAC test results on the grounds of “reliability

or accuracy of the test, the reliability or functioning of the

instrument, or any maintenance procedures.”

{ 66 The sole recourse under this statute for a defen-

dant confronted with an inaccurate and unreliable test

result is to argue diminished weight should be given by

the trier of fact, not to contest its admissibility.” These

provisions clearly preclude challenges to the admissibility

of BAC test results on reliability and accuracy grounds

once the requirements of subsection 4(4)(a) are met.

Consequently, these provisions conflict with the courts’

* Subsection 4(4a) states, “[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 depart-

ment produces prima facie evidence... .”

" Such prohibition on challenges to the admissibility of BAC test

results is apparently precisely what the legislature had in mind in

enacting SHB 3055. As the final bil] report for both the House and the

Senate clearly states, “Defense challenges to the reliability or accuracy

of a breath test may not be used to prevent the introduction of the

evidence once the prosecution has made a prima facie case.” Final B.

Rep. on SHB 3055, at 3 (emphasis added).

A43

judicial power to determine the admissibility of evidence

pursuant to our rules of evidence.

{ 67 To bolster its assertion SHB 3055 is permissive in

nature, the majority relies on Zwicker and State v. Long,

113 Wash.2d 266, 778 P.2d 1027 (1989). This reliance is

misplaced. The statutory provision at issue in those cases,

RCW 46.61.517, read, “The refusal of a person to submit to

a test of the alcoholic content of his blood under RCW

46.20.308 is admissible into evidence at a subsequent

criminal trial.” Laws of 1983, ch. 165, § 27. Critically, and

unlike SHB 3055, the above language did not restrict the

courts’ ability to exclude evidence on the basis of its

relevance or its probative value if outweighed by the

danger of unfair prejudice by restricting such challenges

only to the question of the weight of the evidence. In

Zwicker we held the statute at issue was valid, interpret-

ing “is admissible” as permissive and not mandating

admissibility in all cases. Zwicker, 105 Wash.2d at 238,

713 P.2d 1101. However, we also cautioned that “any

conflict with ER 401 and 403 ... would require invalida-

tion of the statute.” Id. (emphasis added).

{ 68 SHB 3055 strips the court of its essential judicial

power to exclude inadmissible evidence. We must defend

the power and independence of the judiciary, not rush to

surrender it to the legislative or executive branch.”

V. Conclusion

{ 69 “Article II, section 19 serves to protect serious

constitutional interests.” Patrice, 136 Wash.2d at 851, 966

* Sanders, supra note 7, at 5.

A44

P.2d 1271. The majority twice misapplies the requirements

of article II section 19: first, it erroneously circumvents the

need for an inquiry into the substantive provisions of SHB

3055 under the single-subject rule, and second it ignores

precedent defining “title” for the purposes of article II,

section 19 analysis. The majority then hastens to surren-

der our independence from the legislative and executive

branches in the face of a conspicuous intrusion into the

independent judicial power to exclude unreliable and

unfairly prejudicial evidence.

4 70 I dissent.

Dissenting: J.M. JOHNSON, JJ.

APPENDIX B

IN THE FIRCREST MUNICIPAL COURT

IN AND FOR THE STATE OF WASHINGTON

CITY OF FIRCREST, 76738-6

Plaintiff, NO: (C37915

ie CONCLUSIONS OF LAW

ON DEFENDANT'S

THEO JENSEN, MOTION TO SUPPRESS

Defendant, | AND DISMISS

THIS MATTER having come before the court on the

5th of January, 2005 for a hearing pursuant to Defen-

dant’s Motion to Suppress and Dismiss, the court having

read the briefs of the parties and having heard the argu-

ments of counsel, and having reviewed the files and

records herein, makes the following:

CONCLUSIONS OF LAW

The title of SHB 3055 relevant to the Article II,

section 19 analysis, is “AN ACT Relating to admissibility

of DUI tests; amending RCW 46.61.506; reenacting and

amending RCW 46.20.308 and 46.20.3101; and creating a

new section.” The title is general, not restrictive.

Il.

Because the 2004 amendments (SHB 3055) expressly

state that they amend RCW 46.61.506 in Title 46, and the

scope of the original 1961 act encompasses the 2004

amendments, there is no violation of Article II, section 19

of the State Constitution.

III.

The single-subject-in-title rule of Article II, section 19

is not violated because all subjects within the 2004

amendments are properly encompassed within the terms

of the original 1991 act broadly governing motor vehicles.

IV.

The 2004 amendments (SHB 3055) do not violate the

separation of powers doctrine because the amendments do

not conflict with the court’s rules of evidence. The prosecu-

tion remains bound by both the procedural rules of the

2004 amendments and the Evidence Rules. Because the

legislature has the authority to promulgate substantive

rules, the amendments to RCW 46.61.506 do not violate

the separation of powers.

SHB 3055 does not violate the separation of powers

doctrine because the 2004 amendments codify, but do not

alter Washington’s law regarding the standard of proof for

admission of evidence.

VI.

The 2004 amendments (SHB 3055) do not establish a

mandatory rebuttable presumption in violation of due

process under the state and federal constitutions because

the 2004 amendments do not concern any issue before the

jury, they have no effect upon the burden of proof to the

jury. and-de-net require the _defense te-perform-anytask-at

trial. [/s/ [Illegible]]

VIL.

The Defendant’s Motion to Suppress and Dismiss is

denied.

DONE IN OPEN COURT this 2 day of March, 2005.

/s/ (IMegible}

JUDGE of the Municipal Court

Presented by:

/s/ Michael B. Smith

Michael B. Smith, WSBA# 13747

Prosecuting Attorney

Copy Received and Approved as to Form

/s/ (Ilegible]

Linda M. Callahan, WSBA #26274

Attorney for Defendant

APPENDIX C

RCW 46.61.506. Persons under influence of

intoxicating liquor or drug - Evidence -

Tests - Information concerning tests

(1) Upon the trial of any civil or criminal action or

proceeding arising out of acts alleged to have been com-

mitted by any person while driving or in actual physical

control of a vehicle while under the influence of intoxicat-

ing liquor or any drug, if the person’s alcohol concentration

is less than 0.08, it is evidence that may be considered

with other competent evidence in determining whether the

person was under the influence of intoxicating liquor or

any drug.

(2) The breath analysis shall be based upon grams of

alcohol per two hundred ten liters of breath. The foregoing

provisions of this section shall not be construed as limiting

the introduction of any other competent evidence bearing

upon the question whether the person was under the

influence of intoxicating liquor or any drug.

(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 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 toxicolo-

gist 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.

(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 follow-

ing: )

(i) The person who performed the test was author-

ized 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 min-

utes 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 mes-

sage “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 toxicologist;

(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 evi-

dence” 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 suffi-

cient 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 prosecu-

tion or department.

vent 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 chal-

lenges, 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.

(5) When a blood test is administered under the

provisions of RCW 46.20.308, the withdrawal of blood for

the purpose of determining its alcoholic or drug content

may be performed only by a physician, a registered nurse,

a licensed practical nurse, a nursing assistant as defined

in chapter 18.88A RCW, a physician assistant as defined in

chapter 18.71A RCW, a first responder as defined in

chapter 18.73 RCW, an emergency medical technician as

defined in chapter 18.73 RCW, a health care assistant as

defined in chapter 18.135 RCW, or any technician trained

in withdrawing blood. This limitation shall not apply to

the taking of breath specimens.

(6) The person tested may have a physician, or a

qualified technician, chemist, registered nurse, or other

qualified person of his or her own choosing administer one

or more tests in addition to any administered at the

direction of a law enforcement officer. The test will be

admissible if the person establishes the general acceptabil-

ity of the testing technique or method. The failure or

inability to obtain an additional test by a person shall not

preclude the admission of evidence relating to the test or

tests taken at the direction of a law enforcement officer.

(7) Upon the request of the person who shall submit

to a test or tests at the request of a law enforcement

officer, full information concerning the test or tests shall

be made available to him or her or his or her attorney.

APPENDIX D

CERTIFICATION OF ENROLLMENT

SUBSTITUTE HOUSE BILL 3055

Chapter 68, Laws of 2004

58th Legislature

2004 Regular Session

DUI TEST ADMISSIBILITY

EFFECTIVE DATE: 6/10/04

Passed by the House CERTIFICATE

ee” I, Richard Nafziger, Chief

- sai Clerk

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