# Petition for Writ of Certiorari — Jensen v. City of Fircrest, Washington (No. 06-986) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2038%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## Text Sn The OFFICE OF THE CLERK Supreme Court of the Gnited States ¢ THEO JENSEN, Petitioner, v. 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 ME NON-TRAFFIC Re@lew 0037915... 1 Dts vs 7 INCPA COUR FIACREST STATE WASHINGTON FF VS. NAM PLAI ED DEFENDANT CITY/TOWN OF FINGREST Fros¢d SeSeee * WAQ271 COURT OR WA027031) THE UNDERSIGNED CERTIFIES AND SAYS THAT IN THE STATE OF WASHINGTON a . | Onon amour O 23 ey a C129 _ Om Cj ax DD THEN ANO THERE COMMIT EACH OF THE FOLLOWING OFFENSES EB ENS Ow! Mins ‘ + ——— i eis peer Pl , - see" ai a ov —— — be _ - sere eo — ; ' IR! Raw ‘ \ : acy 4 or ° Fs mane ° i i | f — pp nt RR wf, j ; —s ' f. SEE Ct Re tite ET TE ay 0% t ee. «4 : = -” ee x ee se ee Gee eee 0 Fe wae A J j eet’. " sBeeiset oo: ea Om >% % ot } vf & Saves Pa AMINE ate ia ARG “ti: 9%, a TMS ie ty "QBAG +: fy fore were 2G mets —w er 2 pao - at sor, WE SS. ; eg ; - j or cee remo mehomrmen - ; | Coos dee co oe oan. = * inte | nes vile a aA fe i | ‘cclimiaceentiaadtiecenithieaitaancscactiaiailiaadiiaiaieaimanartianiiet ; . a. “ ¥ —_ BEV ATLA. aw hi 1 r eat : cee Bs oe A : ' i a te aa ae a } = wore «som ewe os ae eee - _ . we — TE hs UIA ‘ ’ 2 ob ¢ t - . a ee kes Sn : WIRESSWME(UAST.PRSLMIT SO ! 7 i rt yy Piuat «3 “FA. T Beishs) ss RELATED CITATIONAMFRACTION NUMBERS APPROVING OF FICERANO inrracrion ” Praarric CINoN-TRAFFIC IN 0048541 IN THE [_) DISTRICT LJFMUNICIPAL COURT OF FIRCREST , WASHINGTON oa Sa ,PLAINTIFF VS. NAMED DEFENDANT ITY/TOWN OF FIRCREST Féiacd~- sr 6soe WA0271700 ~ [OUT OME WA027031J ae UNDERSIGNED CERTIFIES AND SAYS THAT IN THE STATE OF WARENGTON ono. SWSerec. (UGS wa tA, LAST FARST MOODLE \enszrs, T¥Ledee x. CAC ee “fez. RiDGz RB WwW. F Iilaentogggy ) 283) SleS “WSO CD errenpreren * ae ! : i i i Mt INK WASHINGTON UNIFORM COURT DOCKET - COURT COPY WACHINRTAA mHEKMe RANT Rare mae ame g aSPst tt Se — — te “eae = 2 VIOLATIONSTAIVTE COOE 2. VIOLATIONWSTAIVTE CODE = Us.runps§ \VO2* b= ° RELATED 6 “105-23 =3 WITHOUT ADMITTING HAVING COMMITTED EACH 1 CERTIFY UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF WASHENTTON THAT —— OF THe ABOVE GFFENEET) \ PROMISE YO _ | WAS Sar uc rrr eo vee, ON Mo X OFRICER ‘ z a INFRACTION _ F INF | RESPONSE | DISPOSITION PENALTY SUB-TOTAL a oO i = 1 c NC cnc OD OP i$ * ABSTRACT MLD ot ' F 2})c nc |c wc O PIs $ roa Pe : {El as | cc we jc nc D PI$ $ j—>- “s Welss ° . ey “ee ee eneenres came aan erwomn- Ome ES oe €H H4 On 10-23, 2004, at 0129 hours, I was operating a speed measuring device, KUSTOM FALCON SN-FF8537 (_ ), MPH VINDICATOR SN-VH14719 ( ), MPH Z25_ SN- HHS569000092 ( ), MPH PYTHON SN-PYT380000175 (_ ), MPH PYTHON SN-PYT546000833 ( ), MPH PYTHON SN- PYT380000176 ( ), MPH PYTHON SN-PYT546000832 (X), MPH PYTHON SN-PT304000829 ( ), MPH PYTHON SN- PYT546004144 ( ) in the moving (X), stationary( ), mode on S. ORCHARD ST within the limits of the City of Fircrest. (X) 1. Using the tuning fork (s) designated to determine its functionality and accuracy, I tested this radar unit at the beginning of my work shift. Based on the test results, this radar unit tested accurately. The tuning forks I used are assigned to this machine. (X) 2. Using the internal testing mode designed to determine its functionality and accuracy, I tested this unit at the beginning of my work shift and after the stop. Based on the results, this radar tested accurately. (X) 3. I checked the digital readout lights. I observed the defendant’s vehicle traveling N E S W PASSING( ) ALL ALONE(X) LEADING( ) TRAILING( ) in the INSIDE LANE(X) OUTSIDE LANE( ) SINGLE LANE ) The radar emitted a clear, high, audible tone. I visually observed the defendant’s vehicle traveling faster than the posted 35 MPH limit. The speed which registered on the radar unit indicated the defendant’s vehicle speed to be 49 MPH. The speed was (X) was not( ) locked on the radar unit. The defendant did( ) did not (X) view the radar reading. The driver did (X) did not ( ) know the speed limit. H5 The driver did( ) did not (X) know his/her vehicle speed. The driver said his/her vehicle speed was 40 MPH. The vehicle registration/license expired on 10/04. I did(X) did not( ) confirm this with LESA Records. (_ ) The driver could not show proof of Liability Insurance. TRAFFIC WEATHER STREET LIGHT LTMDHV CLRNFGSN DWIS' DDWN DSK DK Officer’s Comments: DRIVER ARREST — DUI (MINOR) PHOTO ID: D/L(X) WAIDCARD( ) MILITARY( ) OTHER ( )SEE PHOTO( ) Subject did ( ) did not ( ) provide Picture ID. I have attended and successfully completed 8 hours of training in the operation of radar and I am familiar with this unit. My training was through the W.S.C.J.T.C. and I am a certified operator. I certify under penalty of perjury under the laws of the State of Washington that I have issued NOI#48541 on the date and at the location above, that I have probable cause to believe the above named person committed the above offense (s), and my report written on this document is true and correct. SIGNATURE /s/ [Tilegible] Badge# 9 Date 10-23-04 (Place) Fircrest, Washington | | Fircrest Police Arrest Reg t Incident No. FC0400686. Page tora | [Pox Hanetand Bonen: | | Sib Dui = —— “Forensics: | Reporting By/Date: aa eee Bobert 10/23/2004 See ee Maken Dn 1:29:00 AM Se Count i Location Address: S Orchard St Hol y Or Location Name: eee Bias Ze Pn ee a Hol Cres Sheet | Holly Br --—+ | . ” Contact Location: i City, State, Zip: Ae ae . M ” “Occurred From: | 10/23{2004 1:29:00 AM Saturday Occurred To: Biot sy ng ind asses I } Notes: | a re : t Z i Aliases: iets celebs il 008: “2/10/1986 | Ave: 48 | Sex| Male | Race] White | Ethnicity T Non-Hispanic Height | 62" | Weght | 240 ' Hair Color” Biondelstrawberry EyeCoor | Bue == | 4102 Ridge Rd W ___ | County: | __Phone: | 253 565-9130 University Place, WA 98466 | Country: | Business Phone: $ i | i ( | | | H 8 i g . Bl F ‘ a i | ie af RESIS = = ional -_ameamea a pe Pa Entered By. FC2100-LaTour,Robert * || Btiocea One 0124/2004 5:09:09 AM | aD a Lae --"— eed Oat ‘ ~~" excepiional Cearance: | T Processing | indexed Oate: | By | City Pros. Atty TT Miltary [| OSHS) [ Pretiad’ | ele ae For Law Enforcement Use Only ~ No Secondary Dissemination Allowed Printed: October 24, 2004 - 6:47 AM Records has the authortty to ensure correct agency, CB/Grk/RD, and Distnict/Secor are Printed By: LaTour, Robert incorporated in the reocort. «a ae 9H Fircrest Police Arrest Ret t lincidentNc FC0400686.1 | Page2of4 Ce oo alta Site: | oe | [Radial Shape: i. 8 nn OOM | Complexion: | Pate: aed Appearance: | Righ/ Left Handed: | | Facial Feature wars ! ; ee nines _ oo j ae Poe eR SES - 5 s Oddities j Es | Distinctive Features: ee. . Lae Body Build: : | — Gangs: x ~ “Tribe Aifilation: ~~~ ~ Significant a a + cm =n raematks: ms | a | | Modus Operandt eleeilipaenantteabeni irs Place OF Birth: - euenianiionian # Wi bial Offender: a ii | Date/Time Arrested: | 10/23/2004 1:41:00 AM | Booked Location: neh Date/Time Booked: ~~ | Arrast Location: s Released Location: [302 Regents Weld For | Orchard St Fircrest, Bivd Fircrest, aan ____ WA 98466 Asieal Otonae: | 640d - Traffic - DUNDriving Under the Influence - Liquor Date/Tene | 10/23/2004 2:45:00 Relessed: | aM | Anest Type: | Summoned/Cited Juvenile Disposition [ ey Armed With: | Unarmed mad Adult Present Name: - | ~ (Miranda Read: | "You Miranda Waived: [You —__ Detention Name: mF Muti. Clearance: | Not Applicable Notified Name: | _Fingerprints: | Photos: "| 2 id (Type of injury: Fire Depi Response: [ Hospital Taken To: ~T Medical Release Taken By: ai pee a od { Obtained: Attending Physician: } Hold Placed By: see ncmanahe ited - New Cha , # ite RCW/Ordinance fee Text Court | Sail T Count 037915 | Cite M - - Minor Operate Vehicle Fircrest "280 | After Alcohol Consumption - - Municipal Court | l 46.61.503 . ee Warrants [Arest® | Warrant® [ Free Text Charge Description [ Agency ~_ | Court [ Ball ] i —~“Aarest Notes: * es ox | Other Entity 01: Jensen, Daiei L PDA: j Aliases: . PLEATS ae ~ 608: o7eisa7 | Age: | 57 * Sex Male ___ Race: White T Ethnicty: “ Non-Hispanic “Height Weight © | Hait Color [| Eye Color. $= =SOSC~S i Address: 4102 Ridge Rd W Ree County | | Phone: , 253 565-9130 City, State Zip: University Place, WA 98466 T County: | _ Business Phone: i ' Other Address: ae 3A "Other Phone: ae ae “anes eae | Occupation/Grade: | Employer/Schoo: | = SOS~S~*S ——"gSn: t ; : ; i] Driver License No: | Ghar Usenes ] river License © ves Rie TO penne ee Complasson: | eh SNS: ~ Fed Hale | ! Entity Type: Vehicle Registered + Rasating Sammon Facial Shape: ' | , Owner | ___ Obtained | L_¢ * {DW Entity Notes” Father of arrestee. sa, 7 «aid gaa 3 | y —_——_—_- ——- , For Law Enforcement Use Only - No Secondary Dissemination Allowed Printed: October 24, 2004 - 6:47 AM Picdmtad Qoat aFa = Meat LH “Fircrest Police Arrest Rep ¢ incident Nc FCO400686.1 | Pasesos - = H | “ i bet be | { ! ' m4 Locked ~~ Leanse Washington | Kaye in Vehicle: | rit wil : — Vehicte Year: Victim Consent. er | —_—_—— -_ r ari sedan Oamege we: La ca Damaged Area t j | | i if iil } | ! | es ae i ! ' investigative information ss emnmincinnn _ ia — = : ' arr: On October ai about 0129 hours | was traveling northbound on S Orchard St and observed 2 vehicle HE oe ciao on $ Orchard St at what | suspected to be at a speed greater than the posted speed lent —_—— Pind oie 26 A BB —— For Law Enforcement Use Only — No Secondary Dissemination Allowed ee 8H H9 Narrative: On October 23, 2004 at about 0129 hours I was traveling northbound on S Orchard St and observed a vehicle southbound on S Orchard St at what I suspected to be at a speed greater than the posted speed limit — observation based on training and experience. The vehicle had just passed Holly Dr. and I had locked the vehicle speed at 49 mph in a posted 35 mph zone, within the city limits of Fircrest- see infraction IN 48541 for details. I turned around and followed the vehicle southbound on S Orchard St and initiated a traffic stop on Washing- ton plate 157MXU -— registered to Ol-Daniel Jensen, at the intersection of Emerson St and S Orchard St. I con- tacted the driver, Al — Theodore Jensen and advised him of the reason I stopped him and requested his driver’s license. Theodore said he did not know why I had stopped him and when I told him he said he thought the speed limit was 40 mph. He was very standoffish with me, he did not look at me while I /talked to him or when he spoke to me instead he looked down and spoke softly. I could smell the odor of intoxicants emitting from the vehicle and asked Theodore, “How much have you had to drink tonight.” He responded, “One/ beer, at a friends house on Center St.” He sat back in his seat while I spoke with him with a lean toward the passenger seat in a manor that I perceived as avoidance of being close to the window where I was standing. I asked Theodore to turn off his vehicle and what until I returned, he did as I asked. I returned to my patrol car and retrieved a PBT and notified Radio that I would be doing SFST’s. I returned to Theodore and asked him if he would be willing to conduct some voluntary field sobriety test? He said, “Sure,” and H10 willingly exited his vehicle. I explained and demonstrated all tests to him prior. to him doing them. He said he had no questions and said he could do them as explained and demonstrated. The first test I administered was the HGN, then the Balance test and finally the Walk and Turn — see the Washington State DUI Arrest Report for the details on the field tests. Based on the Theodore’s speeding, the odor of intoxi- cants emitting from his person and breath that I had detected during the investigation and the field sobriety test I advised him that he was under arrest at 0141 hours. I place Theodore in handcuffs — double locking them and checking them for proper fit and transported him the Fircrest Police Department for the BAC test. I advised Theodore of his Rights, which he said he understood and did not request an attorney. I then ad- vised him of the Implied Consent Warning which he also said he understood. Theodore. willingly answered the questions listed on the DUI packet and at 0215 hour Theodore gave the first of two samples of his breath with .043 results and .042 results for the second at 0218 hours. Theodore’s results were printed on Test Document #426992. I gave him his copy of the test document, along with his right to a DOL hearing and waiver of fee request. I punched his driver’s license and issued him criminal citation CR 0037915 for Minor-under 21 DUI. Theodore signed receipt of both citations and prom- is. 1 to appear in court on the assigned date and time on the criminal citation. I told Theodore that I had to contact the owner of the Explorer the let them know of its where- abouts. I asked Theodore if he would like me to call his father, who is also the registered owner and ask him to H1l pick him up as well. Reluctantly Theodore agreed to have his father pick him up. At 0245 hours Theodore was released to his father, in-lieu of being booked into jail. Daniel signed the im- pound waiver and was given the keys to the Explorer. See the Washington State DUI Arrest Report for additional detail on the incident. Reviewed By: /s/ John Cheesman Reviewed Date: 10-25-04 [ILLEGIBLE] ILLEGIBLE] (TLLEGIBLE] WASHINGTON STATE PATROL FCO4-00686 BAC DATAMASTER 949189 SOFTWARE VERSION 76016-004 (07/22/99) OCTOBER 23, 2004 SIM TEMP 34c +/- .2c: YES OBSERVATION BEGAN: 01:51 CITATION NUMBER: CR0037915 OPERATOR'S NAME (L/F/M): LATOUR/R/J SUBJECTS NAME (L/F/M): JENSEN/THEODORE/CARL SUBJECTS DOB: 02/10/1986 EXTERNAL STANDARD BATCH #: 04025 H12 — BREATH ANALYSIS — BLANK TEST 000 INTERNALSTANDARD VERIFIED SUBJECT SAMPLE BLANK TEST 000 EXTERNAL STANDARD = BLANK TEST 000 SUBJECT SAMPLE (042 BLANK TEST 000 ALL RESULTS IN ¢/210L OPERATOR LATOUR AGENCY FIRCREST COURT COPY 02:14 02:15 02:15 02:16 _ 02:17 02:17 02:18 02:19 WASHINGTON STATE DUI ARREST REPORT REPORT OF BREATH/BLOOD TEST FOR ALCOHOL OR REFUSAL TO SUBMIT TO BREATH/BLOOD TEST FOR ALCOHOL AND DRUGS SUBJECT’S NAME SEX DATE OF BIRTH | DATE/TIME (LAST, FIRST, MI) OF ARREST Jensen, Theodore Carl} iM CIF| 02-10-86 | 10-23-04/014 STREET ADDRESS CITY/STATE/ZIP CODE 4102 Ridge Rd. West University, Pl., WA 98466 DRIVER’S LICENSE |STATE | COUNTY OF ARREST | CASE/CITATION NUMBER NUMBER JENSETC146CS |WA Pierce FLO4-00686 Type of Test: Breath Blood BAC Readings: ist Sample .043 2nd Sample .042 Refused Test ___ H13 The subject was lawfully arrested. At that time, there were reasonable grounds to believe that the arrested person had been driving or was in actual physical control of a motor vehicle within this state while under the influ- ence of intoxicating liquor or drugs, or both, or was under the age of twenty-one years and had been driving or was in actual physical control of a motor vehicle while having an alcohol concentration in violation of RCW 46.61.503. After receipt of the warnings required by subsection (2) of RCW 46.20.308, a test was administered and the results indicated that the alcohol concentration of the person’s breath or blood was 0.08 or more if the person is age twenty-one or over, or was in violation of RCW 46.61.502, 46.61.503, or 46.61.504 if the person is under the age of twenty-one. OR After receipt of the warnings required by subsection (2) of RCW 46.20.308, the person refused to submit to a test of his/her blood or breath. &) Driver’s Hearing Request Information was given to the subject. Valid Washington driver’s license/permit punched. Notice of Right to Hearing: I have been given written notice of my right to a hearing including the steps re- quired to obtain a hearing, and understand that the notice of suspension, revocation, or denial of license will be mailed to the address furnished on the above portion of this document. I acknowledge that the address indicated is my current address. /s/ Theo Jensen 10/23/04 SIGNATURE OF DRIVER Date H14 Complete this box ONLY if the arrested person was driving a commercial motor vehicle as defined in Chapter 46.25 RCW at the time of the incident. C) Operating a Vehicle Requiring a Commercial Drivers License BAC Readings lst Reading __ 2nd Reading __ Refused Test __ There was probable cause to believe that the arrested person was driving or was in actual physical control of a vehicle requir- ing a commercial driver's license within this state while having alcohol/drugs in his/her system and that a test of his/her breath and/or blood disclosed an alcohol concentration of 0.04 or more. Chapter 46.25 RCW OR There was probable cause to believe that the arrested person was driving or was in actual physical control of a vehicle requir- ing a commercial driver's license within this state while having alcohol/drugs in his/her system. The arrested person was requested to take a breath/blood test and informed of the consequences of refusal and his/her rights under Chapter 46.25 RCW. The arrested person then refused to submit to the requested test. | LICENSE VEH PLATE HAZARDOUS YEAR| MAKE | MODEL| NUMBER | STATE} MATERIAL? (] YES CJ NO I certify (or declare) under penalty of perjury under the laws of the state of Washington that the forego- ing and the accompanying reports/copies of docu- ments and the information contained therein are true, correct, and accurate (RCW 9A.72.085). H15 Fircrest WA0271700 {Illegible} 10-23-04 LAW ORI NO. OFFICER'S DATE ENFORCEMENT (9 DIGITS) SIGNATURE SIGNED AGENCY 302 Regents Blvd R. Latour 9 MAILING PRINTED NAME OF BADGE ADDRESS OFFICER NUMBER Fircrest WA 98466 - CITY STATE ZIP Fircrest, WA (253) 565-1198 PLACE SIGNED CONTACT PHONE NUMBER FOR (city/county/state) HEARING (include area code) OFFICERS: Fax or mail completed report, breath test document, and supplemental reports to: Department of Licensing Driver Responsibility PO Box 9030 Number of pages faxed ___ Olympia, WA 98507-9030 Fax: (360) 570-7026 USE THIS PAGE AS COVER SHEET On the date, time and- location of this arrest, I had authority to arrest pursuant to my agency’s jurisdiction or RCW 10. 93 ge Mei Fy i te iy -CONSTITU" TIONAL RIGHTS Mie ie By Be: Pr sie 1. YOU HAVE THE RIGHT TO REMAIN SILENT. 2. YOU HAVE THE RIGHT AT THIS TIME TO AN AT- TORNEY. 3. ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW. 4. IF YOU ARE UNDER THE AGE OF 18, ANYTHING YOU SAY CAN BE USED AGAINST YOU IN A JUVE- NILE COURT PROSECUTION FOR A JUVENILE OFFENSE AND CAN ALSO BE USED AGAINST YOU H16 IN AN ADULT COURT CRIMINAL PROSECUTION IF THE JUVENILE COURT DECIDES THAT YOU ARE TO BE TRIED AS AN ADULT. 5. YOU HAVE THE RIGHT TO TALK TO AN ATTORNEY BEFORE ANSWERING ANY QUESTIONS. 6. YOU HAVE THE RIGHT TO HAVE AN ATTORNEY PRESENT DURING THE QUESTIONING. 7. IF YOU CANNOT AFFORD AN ATTORNEY, ONE WILL BE APPOINTED FOR YOU WITHOUT COST IF YOU SO DESIRE. 8. YOU CAN EXERCISE THESE RIGHTS AT ANY TIME. 9. DO YOU UNDERSTAND THESE RIGHTS? I HAVE READ OR HAVE HAD READ TO ME THE ABOVE EXPLANATION OF MY CONSTITUTIONAL RIGHTS AND I UNDERSTAND THESE RIGHTS. SUBJECT’S SIGNATURE /s/ [Ilegible} I UNDERSTAND MY CONSTITUTIONAL RIGHTS. I HAVE DECIDED NOT TO EXERCISE THESE RIGHTS AT THIS TIME. ANY STATEMENTS MADE BY ME ARE MADE FREELY, VOLUNTARILY, AND WITHOUT THREATS OR PROMISES OF ANY KIND. /s/ {Tllegible} /s/ (Ilegible} OFFICER’S SIGNATURE SUBJECTS SIGNATURE 10-23-04 @ 0155 Fircrest WA DATE/TIME LOCATION(S) C Constitutional rights (Miranda) were read in the field at ___ hours from the department issued rights card. ATTORNEY REQUESTED OOYES MNO ATTORNEY CONTACTED? LO) YES (J NO H17 TIME: C) UNABLE ATTORNEY’S NAME ATTORNEY’S PHONE NO. a. a id dht a it ae ‘a g + FI We “Bas Bae N MA pets | tet FE T FOR: WARNING! YOU ARE UNDER ARRES (check appropriate box[es)}) C1) RCW 46.61.502 OR RCW 46.61.504: Driv- ing or being in actual physical control of a motor vehicle while under the influence of in- toxicating liquor and/or drugs. kK} RCW 46.61.503: Being under 21 years of age and driving or being in actual physical control of a motor vehicle after consuming al- cohol. C) RCW 46.25.110: Driving a commercial mo- tor vehicle while having alcohol in your sys- tem. FURTHER, YOU ARE NOW BEING ASKED TO SUBMIT TO A TEST OF YOUR BREATH WHICH CONSISTS OF TWO SEPARATE SAMPLES OF YOUR BREATH, TAKEN INDEPENDENTLY, TO DETERMINE ALCO- HOL CONCENTRATION. YOU ARE NOW ADVISED THAT YOU HAVE THE RIGHT TO REFUSE THIS BREATH TEST; AND THAT IF YOU REFUSE: (A) YOUR DRIVER'S LICENSE PERMIT, OR PRIVILEGE TO DRIVE WILL BE REVOKED OR DENIED BY THE DEPARTMENT OF LICENSING FOR AT LEAST ONE YEAR; AND (B) YOUR REFUSAL TO SUBMIT TO THIS TEST MAY BE USED IN A CRIMINAL TRIAL. ¥118 YOU ARE FURTHER ADVISED THAT IF YOU SUBMIT TO THIS BREATH TEST, AND THE TEST IS ADMINIS- TERED, YOUR DRIVER’S LICENSE, PERMIT, OR PRIVILEGE TO DRIVE WILL BE SUSPENDED, RE- VOKED, OR DENIED BY THE DEPARTMENT OF LICENSING FOR AT LEAST NINETY DAYS: (A) IF YOU ARE AGE TWENTY-ONE OR OVER AND THE TEST INDICATES THE ALCOHOL CONCENTRATION OF YOUR BREATH IS 0.08 OR MORE; OR (B) IF YOU ARE UNDER AGE TWENTY-ONE AND THE TEST INDI- CATES THE ALCOHOL CONCENTRATION OF YOUR BREATH IS 0.02 OR MORE; OR (C) IF YOU ARE UN- DER AGE TWENTY-ONE AND YOU ARE IN VIOLA- TION OF RCW 46.61.502, DRIVING UNDER THE INFLUENCE, OR RCW 46.61.504, PHYSICAL CONTROL OF VEHICLE UNDER THE INFLUENCE. YOU HAVE THE RIGHT TO ADDITIONAL TESTS ADMINISTERED BY ANY QUALIFIED PERSON OF YOUR OWN CHOOSING. FOR COMMERCIAL DRIVERS ONLY: IF YOU EI- THER (A) REFUSE THIS TEST OR (B) SUBMIT TO THIS TEST AND THE TEST INDICATES AN ALCOHOL CONCENTRATION OF 0.04 OR MORE, YOU WILL BE DISQUALIFIED BY THE DEPARTMENT OF LICENS- ING FROM DRIVING A COMMERCIAL MOTOR VEHI- CLE. H19 I HAVE READ THE I HAVE READ OR ABOVE STATEMENT HAVE HAD READ TO TO THE SUBJECT ME THE ABOVE STATEMENT(S). /s/ (Mlegible] /s/ {Mlegible] OFFICER'S SIGNATURE SUBJECTS SIGNATURE 10-23-04 0157 Fircrest, WA 98466 DATE/TIME LOCATION WILL YOU NOW SUBMIT TO A BREATH TEST? [TJ] M YES C}) NO Did subject express any confusion regarding the implied consent warnings? If yes, explain below. OO YES vi NO DO YOU HAVE ANY FOREIGN SUBSTANCE IN YOUR MOUTH? M YES () NO MOUTH CHECKED? Mi YES LJ NO TIME? 0151 2ND MOUTH CHECK? (If Necessary) TIME? ___ (1 YES LJ) NO ANY FOREIGN SUBSTANCES FOUND? EXPLAIN: MYES ONO ___ Tongue REMOVED MYES UNO ___ Ring PBT READING .045 PBT TIME 0141 H20 I was certified to operate the BAC DATAMASTER / PBT and possessed a valid permit issued by the State Toxicologist for this purpose on the date of this test. I performed the PBT test in accordance with the State Toxicologist’s protocols (Chapter 448-15 WAC) I observed the subject during the entire observation period. During that time, the subject did not vomit, eat, drink, smoke, or place any foreign substance in his/her mouth. BOOKED RELEASED TO:__ PR’D WASHINGTON STATE DUI ARREST REPORT DUI INTERVIEW Ovsgxno : Hes vee | Ta. HAVE YOU BEEN INJURED OR INVOLVED IN ANY COLLISION(S) IN THE PAST 24HouRS? «=: [[] YES 7 : 0 Yes MNO O Yes odd | nes vn 7. HAVE YOU IN THE PAST 24 HOURS? YES NO \S? 0 Yes Ni. wo O ‘ pasinting 10. WHAT STREET / HIGHWAY WERE YOU ON? “Tl ves If drug use indicated, please contact WSP Communications or local DRE after breath test and continue with DU! process. PRE-ARREST OBSERVATIONS Z-SOGRDINATION ~~) * eer &_OOORGF LSerecH TIVE 0 e000 Y Ty eee CD Goon (Mood SWINGS ear C SOLED -ExPLan | PfwaTERY bape ene AR Carcumenranve |/C Poor DI OTHER: EXPLAIN | >@LOROOPY vee | d oner C REPETITIVE C crvinc (CO FUMBLED FoR (C0 SHOES (Desctbe) | [1 BLOD0SHOT 0 PALE CO rast 0 O Ppuras DO omer: spin CONSTRICTED Oo cones DoTmeER: Goren | OFFICER'S OPINION [ol subject's knpalrment due | 9. NA vA. TO UNDERSTAND marabcrions eee LISH yes 0 No (yucHT Oosvious ClextReme OTHER SE INTERPRETER REQUESTED? EXPLAIN BELOW: R PROVIDED O ves &ZNO twe___ mean 10. PASSENGER(S) INFORMATION a0 , Yow T B02 a ‘eal ’ T3H WASHINGTON STATE DUI ARREST REPORT CBETOTATION NMGER SOBRIETY TESTS Fees ooo phraveo cowe “BA Comss Ouva 0 suo Mucoenare D oavucHT Co | © OTHER. CO) OTHER - 0 OTHER 1 eS Oi SEEN SE CEng ond pastas the test in accordance with this training. L EQUAL TRACKING bo etn Th— tec of smooth pursutt WERTICAL NYSTAGMUS ([(] YES NO EQUAL PUPILS s O) No M.-F — Distinct and continuous nystagmus at max deviation RESTING NYSTAGMUS []YES {ZNO C 0 Angie of onset prior to 45 degrees 8: SE tr> Ab Akt? EVES, Combate VYomee efrere oF Tee. Peon NTT wAS OROPAicweT wD OFA AN heer oF onszxr PEick ro oe wr YE? 2. 1 Cannot keep batance AI Starts too soon - 1* Nine Steps 2” Nine Steps ) Stops Walking Miss Heel — Tos 6 =«s 5 x's a taste) seme owe : Ou te) CQ& ODO IO) a Raises arms * ad Actual # steps 9 = DESCRIBE TURN . | CANNOT DO TEST (EXPLAIN) Steet Peery 4'¢ cred Soo 2 She REVOD W/o SrrPPEdths REOUND AS RA.-sTS, COMMENTS: Jengess }.n Teves WLEt re TOE CS Nese Boe Twe Keser! oe ee en ee) rt ™54 srNeat Rnerste RIE Oe HPS AoT +ooO. 938, COMMENTS: PYF wscxr De - ee Bleavse of Avent ee BAe, SUPPLEMENTAL TESTS MGs A 6 co € Ff GH st Js K tL WN OO B QRS Tt wUVw ix ya NOTES EINGER DEXTERITY ; NOTES SuauT Waunue? back BALANCE ow Arm FO@srn oa 1 A e.Rec_t Morr or, ) O00 eH H23 WASHINGTON STATE DUI ARREST REPORT NARRATIVE CASE / CITATION NUMBER 04-00686 Vehicle in Motion (Initial Observation, Observation of Stop): SEE ENFORCER REPORT FOR DETAILS Personal Contact (Observation of driver, statements, pre-exit, sobriety tests, observation of the exit, odors, general observations such as speech, attitude, clothing, etc.) Pre-Arrest Screening (Field Sobriety Tests): Administrative Process (BAC and Disposition): I certify (declare) under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. (RCW 9A.72.085.) /s/ [illegible] 9 R.Latour G OFFICER'S BADGE PRINTED NAME BADGE SIGNATURE NUMBER OF OFFICER NUMBER AGENCY Fircrest P.D. PLACE SIGNED (city/county/state) Fircrest, Pierce DATE SIGNED 10/23/04 Take special note that the “Special Evidence Warning” as well as the “implied consent for blood and voluntary H24 blood/urine/breath” will no longer be part of this packet and are available as a stand-alone form. These forms will be available through your agency or the Washington State Patrol. FC04-00686 CITY OF FIRCREST VEHICLE IMPOUND WAIVER Year 97 Make FORD Body Type SUV/1IFMDU34X7VUC825 Lic. # 157MxU State WA. Time Left 0147 Color GREEN Date Left 0147 HRS 10/23/04 Location of Vehicle EMERSON / ORCHARD ST Reason DRIVER ARRESTED — DUI Name of Driver JENSEN, THEODORE C. HOLD HARMLESS AGREEMENT In consideration of being allowed to exercise the option of waiving impound of the above described vehicle, I hereby relieve and release the City of Fircrest, its officers and em- ployees from any and all responsibility for the described vehicle and its contents and from any damage or liability which might arise as a result of the use of said vehicle by the party to whom I have released it, or from any claim of damage or loss which might arise as a result of leaving the said vehicle parked at the above location at my direction. I further agree to hold harmless the City of Fircrest, its officers and employees from any and all claims which might arise as a result of my election to waive impound of the described vehicle. _Undersigned agrees to remove the vehicle within 24 hours after which this agreement is void. The automobile will then ——— H25 be removed by police authority and in all cases the cost of removal will be assumed by the signator. Signature _ [Illegible] 9-9-4 Officer [Illegible] No.___ THIRD PARTY RELEASE In lieu of impoundment it is requested thai my vehicle, license t be released to This alternative absolves the City of Fircrest or its agents, of all responsibility for the vehicle or its contents. Signature Officer No. —_— I APPENDIX I IN THE FIRCREST MUNICIPAL COURT IN AND FOR THE STATE OF WASHINGTON CITY OF FIRCREST, NO: C37915 Plaintiff, STATEMENT OF DE- vs. FENDANT ON SUBMIT- THEO JENSEN, TAL OR STIPULATION Defendant. TO FACTS I am the defendant in this case. I wish to submit the case on the record. I understand that this means that the judge will read the police report and other materials and, based upon that evidence, the judge will decide if I am guilty of the crime of Driver Under Twenty One Consuming Alcohol. I understand that, by this process, I am giving up the constitutional right to a jury trial, the right to hear and question witnesses, the right to call witnesses in my own behalf, and the right to testify or not testify. I understand that the maximum sentence for this crime is 90 days in jail and a $1000.00 fine and that the judge can impose any sentence up to the maximum, no matter what the prosecution or the defense recom- mends. No one has made any threats or promises to get me to submit this case other than the prosecuting authority’s promise to take the following action and/or make the following recommendations: To agree to a stay of sentence pending appeal; and in the event an appeal is unsuccessful, to recommend sus- pension of all jail time, a $500.00 fine, a $125.00 BAC fee, [2 a $50.00 investigation fund fee, a $102.50 criminal traffic assessment, a law enforcement recoupment of $104.75, and probation with the conditions that I not drive without a valid license and insurance, that I have no criminal law violations and that I obtain an alcohol evaluation and follow up with recommended treatment, to include at minimum, Alcohol and Drug Information School and a Victim’s Impact Panel. DATED this 2nd day of March, 2005. /s/ Theo Jensen Defendant /s/ Michael B. Smith _ /s/ Linda Callahan Michael B. Smith, Linda M. Callahan, WSBA # 134747 WSBA #26274 Prosecuting Attorney Attorney for Defendant Jl APPENDIX J [Seal] State of Washington WASHINGTON STATE PATROL FORENSIC LABORATORY SERVICES BUREAU 2203 Airport Way South, Suite 360¢Seattle, Washington 98134-2027 (206) 262-6000¢ FAX (206) 262-6018 STATEMENT OF STATE TOXICOLOGIST In my role as the State Toxicologist and by my authority outlined in RCW 46.61.506, I have reviewed and approve the contents of this manual, the Breath Test Program Policy and Procedure Manual, containing forms for the implementation and maintenance of the breath alcohol testing program throughout the State of Washington. The contents of this manual become effective on November 4, 2005. /s/ (Illegible] Barry K. Logan, Ph.D. State Toxicologist 11/4/05 Date WASHINGTON STATE PATROL BREATH TEST PROGRAM BREATH TEST PROGRAM POLICY AND PROCEDURE MANVAL PURPOSE STATEMENT This notebook should contain the most recent written policies and procedures followed by personnel within the Breath Testing Program. Generally, these policies and procedures exceed the requirements of the Washington J2 Administrative Code and reflect an attempt to ensure the highest possible confidence in the Breath Testing Program. All references made throughout this manual to the “DataMaster” shall include both the BAC DataMaster and the BAC DataMaster CDM. These forms have been developed primarily by personnel within the Breath Test Program, however the manual in its entirety has been approved by the State Toxicologist. Some forms reflect the language of appropriate court rules. All forms are-subject to revision when appropriate to improve the overall program. When a significant revision is necessary, a Policy/Form Revision Directive will be issued along with the revisions to Breath Test Program personnel for updating the manual. All records generated as a result of repairs, maintenance, or Quality Assurance of DataMaster instruments used for evidential purposes shall be maintained according to the protocols described in this manual. Program personnel are to follow all policies and procedures whenever reasonably possible. Deviation may be justified where in the profes- sional judgment of the technician, the supervising techni- cian, or the state toxicologist, the scientific integrity of the procedure, the instrument, the program or any breath alcohol measurement is not compromised. These protocols are intended to provide program guidance and uniformity while still allowing for professional judgment. * * * J3 WASHINGTON STATE PATROL BREATH TEST PROGRAM DATAMASTER CALIBRATION PROCEDURE I. Preliminary Guidelines: A. “Calibration” is the process of standardizing the DataMaster instrument to a known ethanol vapor concentration using a certified simulator solution. This allows for the quan- titative measurement of the ethanol concen- tration in a person’s breath. B. Use a certified ethanol solution from the State Toxicology Laboratory. Use only Guth Model 34C or 2100 simula- tors. For the ethanol solution, use a simula- tor with a thermometer that has been certified according to the Simulator Ther- mometer Certification Policy and Protocol. OQ D. When using a given solution during calibra- tion, the simulator inlet port should be at- tached to the pump via the “Calibrate” port on the instrument and the simulator outlet port to the breath tube. II. Procedure: A. Set the “ETHANOL CONCENTRATION” in the supervisory options to the vapor concen- tration of the gas chromatograph reference - value of the certified solution. Round the four digit State Toxicology Laboratory value to three digits. B. Ensure that the ethanol simulator ther- mometer indicates 34° + 0.2° C. The water simulator may contain tap water and only J4 needs to be heated — not at a specific indi- cated temperature. Use the FI-F2 keys on the keyboard to initi- ate the calibration procedure. Follow the displayed instructions. 1. When the display reads “BLOW WA- TER VAPOR”, introduce water vapor into the breath tube using a heated simulator. Push NOVOL (NV) if neces- sary to accept the sample. 2. When the display reads “BLOW ETHA- NOL”, introduce the known ethanol so- lution vapor into the breath tube until a stable reading is obtained. Push NO- VOL (NV) to accent the sample if nec- essary. Printout and examine the CAL factors and retain the breath test document. Record the solution batch number used on the Quality Assurance Procedure report form (481.BTS). The technician shall be allowed to perform the calibration procedure as often as they determine to be necessary in order to achieve optimum instrument performance. Only the final breath test document needs to be retained. J5 WASHINGTON STATE PATROL BREATH TEST PROGRAM DATAMASTER QUALITY ASSURANCE PROCEDURE The Quality Assurance Procedure ensures the accuracy, precision and forensic acceptability of the DataMaster instrument for the purpose of quantitatively measuring the alcohol concentration of a person’s breath. The Proce- dure evaluates critical systems within the instrument to ensure their compliance with strict pre-determine criteria. When complying with the standards required in the Quality Assurance Procedure, the DataMaster can be confidently placed in the field for evidential use. The protocol described below is to be followed when performing the Quality Assurance Procedure on DataMas- ter instruments. This procedure is to be completed in the following circumstances: 1. Prior to an instrument being installed in the field for evidentiary use. 2. After replacing any of the following components and prior to being placed back into the field for evidentiary use: a. Central Processing Unit (CPU) Board b. Infrared Detector c. Infrared Detector Block d. Infrared Detector Board e. Software 3. After disassembly and then reassembly of sample chamber. 4. Ifinstrument requires recalibration for any reason. 5. At least once every year. J6 Procedure: The following is to be performed or per- sonally observed by each individual testing the in- strument. A. Electrical Checks 1. Sample Chamber Control Board I. Version #101226 a. Flow Detector —Place black voltmeter lead on TP5 —Place red voltmeter lead on bot- tom of R28 ~—Adjust R26 to 0.200 (+0.005) VDC —Move red lead to TP2 —Adjust R29 to 1.40 (+0.10) VDC —Move red lead back to bottom of R28 —Adjust R26 to 0.020 (+0.010) VDC (This should be double checked when instrument fully warm) Sample Threshold —Leave black voltmeter lead on TP5 —Place red voltmeter lead on TP 1 —Adjust R34 to 2.40 (40.10) VDC II. Sample Control Board (Version #41625) a. Breath Volume Circuit —Place black voltmeter lead on TP5 —Place red voltmeter lead on TP8 —Adjust R26 to 0.200 (+0.005) VDC —Move red lead to TP2 —Adjust R29 for 1.40 a 0.10) VDC —Move red lead back to TP8 —Adjust R26 to 0.020 (+0.010) VDC (This should be double checked when instrument fully warm) J7 2. Detector Board: (Test Point 4 ground) a. Infrared Detector Cooler: 1) 2) Test Point 1: Adjust R4 to voltage indicated on tag attached to cable coming from J37 on Detector Board (+.01) VDC. If the tag listing the cooler voltage is not present, or of [sic] the detec- tor is replaced perform the follow- ing: Turn the instrument off and let it cool down to room tempera- ture (approximately 30 minutes). Turn the instrument on and place voltmeter across R26 on Detector Board. Adjust R4 for .475 (+.010) VDC. Recheck voltage at Test Point 1. and notate this voltage as the new Detector Cooler voltage. b. Detector Bias. 1) Top of R45 or TP13 depending on board version: 120.0 (40.5) VD©: Adjust Rl 3. Sample Chamber Control Board: a. IR Source Intensity 1) Activate MTR on keyboard so the Detector voltage is displayed. Ad- just R16 on the Sample Control Board for a displayed detector voltage of 0.000 (+.100) VDC. 4. CPU Board: (Test point 0, or lower left cor- ner pad is ground) J8 a. Analog-to-Digital Converter Reference ‘ 1) Versions with Test Point 2 and R37 present: Test Point 2 or U29 pin 2: 2.00 (+.01) VDC: Adjust R37 2) No adjustment performed on Ver- sions without Test Point 2 and R37 5. Radio Frequency Interference (RFI) thresh- old: (Top of R8 ground) Antenna must be installed. b. Activate MTR on keyboard c. Left side of L2. If reading is 4-6 VDC, adjust R18 clockwise (CW) to read 0-1 VDC. If reading is at 0-1 VDC, adjust R18 counter clockwise (CCW) to read 4- 6 VDC. When R18 turning point is reached, turn R18 '% to 1 turn clock- wise. When the voltage is between 4-6 VDC the MTR should display “RADIO INTERFERENCE”. Calibrate the instrument according to DataMas- ter Calibration Procedure. Record the batch number of the solution used on the Quality As- surance form 481.BTS. Perform steps D-L below for each of the four so- lution levels (0.04, 0.08, 0.10, 0.15). Use only Guth Model 34C or 2100 simulators which contain a certified ethanol solution pre- pared and tested by the State Toxicology Labora- tory. Set the supervisory test option for ten tests. Set keyboard and data collection to “OFF”. J9 Simulator check to “OFF”. Sample Check to “OFF”. Verify that the simulators used have thermome- ters which have been certified according to the Simulator Thermometer Certification Policy and Protocol. Verify that the thermometer indicates that the temperature of the simulator solution is 34° + 0.2° C. Insert the document (except on DataMaster CDM) and push “SUP”. When the ten tests are completed verify the simulator thermometer indicates the tempera- ture of the solution is 34°+ 0.2° C, initial and re- tain the breath test document. Calculate the mean and standard deviation of the ten measurements using the three-digit value printed for each test. The mean and stan- dard deviation should both be rounded to and re- ported to four decimal places. 1. Determine if results meet test for accuracy using the formula: Mean - Reference Value X 100 = within+ Reference Value 5.00% inclusive. a. The Reference Value is to be deter- mined by dividing the four digit mean value received from the State Toxicol- ogy Laboratory by 1.23. b. The Reference Value is to be rounded to four digits. 2. Determine if results meet test for precision (coefficient of variation) using the formula: J10 Standard Deviation X 100 = : =) 7 ‘ A. 7 9 LU - ‘ . a“ i ‘ ' ‘ 7 . ' ‘ ‘ * : 1 1) - : ’ A \ . ~— > - > ‘ > ree a ET a pha rs ‘ - : ——— i ‘ a ee ee eee eee eee Stl tee a ten ae a en oe el Ne ee eee ee a Tie be oie he i oe oe So Ll APPENDIX L TRAINING OUTLINE FOR DATAMASTER AND PBT OPERATOR BASIC 10/23/04 Approved — Date [Illegible] Barry K. Logan, Ph.D. Washington State Toxicologist Prepared By Washington State Patrol Breath Test Section * * * VI. PRINCIPLES OF OPERATION - A. An accurate and reliable breath test re- quires a good instrument, program and pro- tocol B. The following are required for an accurate and reliable test. 1 2 3. 4 An accepted method of analysis An instrument in proper working order A properly calibrated instrument A deep lung sample of breath from a liv- ing human being * « * Ml APPENDIX M IN THE SUPREME COURT IN AND FOR THE STATE OF WASHINGTON CITY OF FIRCREST, Respondent, NO. 76738-6 ) ELECTRONIC RECORD v. ) TRANSCRIPTION THEO JENSEN, ) ) Plaintiff/Respondent. _) Attorney for the Appellant: Mr. Ted Vosk Legal Ease Transcriptions 18940 111th Street East Bonney Lake, WA 98391 (253) 891-3456 {2} MR. VOSK: May it please the court Your Honors, Ted Vosk on behalf of Mr. Theo Jensen. We’ve had a lot of discussion about the term shall be admissible in section 4A and whether that means evidence absolutely is admitted or whether that’s just permissive as in Long. We've got to read the provision as a whole, and section A isn’t the only provision that says something shall be admissible or shall not preclude admissibility. Section A says the breath test shall be admissible at trial if this little checklist is satisfied. Section 4C says challenges to the reliability, the accuracy or the functioning of the instru- ment, all things which even if we said prejudicial aside can cause confusion or misleading of the jury under 403, shall not preclude the admissibility. So first section A says shall be admissible, then section C says and anything you bring up shall not preclude that admissibility. Taken together M2 that is a mandatory charge. What elevates the evil created JUSTICE ALEXANDER: Think of an instance where the prima facie showing has been made pursuant to the statute that’s passed, and the judge says it’s not — not withstanding that it is not admissible under evidence rule 403. Can you think of any case where a judge would not be held to have abused his discretion in so ruling? I think (inaudible) it would be an abuse of discretion to... MR. VOSK: It would be an abuse of discretion for the judge to exercise any discretion once that checklist has been satisfied. Especially — and even if let’s say, let’s set aside all the other concerns, [3] NIST traceability and everything else, let’s say what the defense wants to chal- lenge is one of the things on that little checklist, and we bring in a witness that says such and such cannot be satisfied. And the judge sitting up there, the judge with the witnesses in front of he or she, who can judge the credibility, says you know what, I’ve got the facts, I’ve got the witnesses, I can see that this element wasn’t satisfied, but you know what, I can’t make that call. I have to assume that everything the State’s witness said is true even if I believe in my heart of hearts that the evidence shows that it is not. JUSTICE MADSEN: Who is the trier of fact? The judge? MR. VOSK: Well for foundational purposes that would be the judge. In — in conducting... JUSTICE MADSEN: If there is — if there is conflicting evidence in foundation the judge is supposed to call it? M3 MR. VOSK: Well, whenever ~ whenever a judge at the pretrial stage is making a decision on foundational elements he or she always has evidence in front of him or her to consider, always has witnesses, and always has to make a determination and exercise some discretion as to whether or not those things have been established. And — and here is the thing, it is — it may be a prima facie stan- dard, but they still have to exercise some discretion. And what this, what this statute is saying is, you can’t even in satisfying their prima standard, which is very [4] low, you can’t even say I know this guy is lying because we have evidence. For instance, let’s... JUSTICE JOHNSON: That’s not the case here Mr. Vosk, is that your client did not have such evidence? Did you make an offer here? So doesn’t it solve your prospective problem if this court construes the statute as they did in Lord I believe, that the judge does have to make — retain discretion in the appropriate case not to allow evidence to be admitted where there is an attack on the foundation? That’s a two part question. First is your client, have you got a case before us here that raises that? And second you can share with me, if you want, your thoughts on whether we'll save the statute by construing it to allow the court to exercise its usual evidentiary discre- tion. MR. VOSK: With respect to the first question, because the statute has indicated that you have just those elements and that the truth of all of the State’s evidence and witnesses must be assumed, it would be a frivolous motion on our part to file anything which would say they are not true, they are not credible because the statute says we don’t have — the court doesn’t have the power to enter- tain that argument. M4 JUSTICE JOHNSON: Well you would have got the same — the same —- similar evidence I would have thought would have gone to the trier of fact later anyway in the course of the trial. MR. VOSK: But the point is that with respect to the separation of powers, the court is supposed to act as the gatekeeper and [5] make sure that the evidence that does get to the trier of fact at the end, that the jury does hear, does at least satisfy some minimum modicum of reliability as required by due process, and in so... JUSTICE JOHNSON: And I do understand that. MR. VOSK: Okay. JUSTICE JOHNSON: We have a two part question. MR. VOSK: Okay. JUSTICE JOHNSON: Question one, did your client have such a challenge to the evidence? Are you saying that you did not make it? MR. VOSK: And that’s correct Your Honor. It was not made, and for the reason that counsel did not believe she, under the statute... JUSTICE JOHNSON: Was there’ evidence offered at the trial, if you will, that should or could have been applied to attack the admissibility of the evidence? MR. VOSK: I believe that is the case Your Honor with respect to a tongue ring. JUSTICE JOHNSON: What was - oh, it was a tongue ring? M5 MR. VOSK: Yes. JUSTICE JOHNSON: Okay. Now on the second half? Do we cure your — my question, do we cure your problem by construing [6] this statute as we did in Lord, or I believe Judge Bridges earlier suggested, it doesn’t say admitted it says admissibility. Problem solved? MR. VOSK: If the court were to determine that this was permissive, yes, but what I think you have to — have to remember is that while the court should read and harmonize the provisions in the statute in such a way as to make them constitutional, it cannot bend and contort the meaning of words and the meaning of a statute to do so. If the clear meaning of the statute is... JUSTICE JOHNSON: But we have Lord as precedent here to construe (inaudible). It doesn’t mean admitted. The legislature could have said shall be admit- ted. Didn’t say that. MR. VOSK: That is correct and that’s why Your Honor with respect to that point I say you’ve got to read the provision as a whole. You’ve got shall be admissible and then shall not preclude admissibility. So you... JUSTICE JOHNSON: Then you've got subsec- tion C, which you’ve called my attention to... MR. VOSK: That is correct. JUSTICE JOHNSON: ... (inaudible) part of the argument. MR. VOSK: Okay, and I won’t belabor that point Your Honor. JUSTICE JOHNSON: Okay. M6 (7) JUSTICE MADSEN: Counsel could you - could you take it out of the context of the statute for a moment and assume that you have a D — DNA test and Frye is met, DNA testing is accepted in the scientific community, and you're really down to the question of well this lab, and the defendant produces some evidence that says, you know. this lab has a history of using dirty in- struments and having results that are not corrected. And then the State comes in and says well, you know, maybe they have had in the past, you know. We think that be- cause we’ve had this double checked or because they’ve cleaned up their act that this is reliable. Now do you think under our current evidence rules that the judge weighs the evidence as the whether or not the lab uses dirty instru- ments, or does the judge say well, you know, that kind of goes to the weight of the evidence and so, you know, I’m going to send it to the jury because that is really a jury call. Do you agree with that or... MR. VOSK: I think there is a distinction be- cause the DNA and the DUI and the distinction is this. Under 506(3), the citizens long ago said that there will be certain foundational requirements set out which will establish a valid test, those satisfactory techniques or methods. So we’ve got a statute. And we also have a State Toxicologist that has recognized certain things as being necessary for a valid and accurate test. So it is not the defense coming in and saying hey look, this is wrong, that’s wrong, we found all this stuff that the State doesn’t know or whatever. We’re saying hey look, this is what the State told us. [8] JUSTICE MADSEN: Well except if we - if the State is correct that we’ve taken, that this legislature has no longer delegated that authority to the Toxicologist, M7 it would — don’t we come down to the same place as my DNA? MR. VOSK: Well no, and because of this, 506(3), as the State indicated, never gave the State Toxicologist any power to determine admissibility. The requirement in 506(3) for a valid test has to do with whether or not the statutes relying on it could ever be applied in the first place. You’ve got validity, which once that’s been satisfied, you've got a statute you can prosecute under and then admissibility which comes secondarily. The reason I think ~ and that’s from Melcher which is cited in our brief. And the reason I think that it’s become confused is because we don’t have a prior restraint mechanism with respect to charging in a criminal case. We can’t jump up there and say no valid test before they've ever brought the charges. And so while — while admissibility is half the question here, and it goes to — it goes to, part of the concern is with respect to separation of powers, the other half is we have statutorily mandated foundational requirements for a valid test and the requirements for the valid test are supposed to be put out by the State Toxicologist and the court is supposed to find that before it ever gets to a jury because if you can’t apply the law, if you can’t prosecute under the law, what’s the jury got to consider? The jury only comes in if we’ve got a prosecution. [9] I certify under penalty of perjury under the laws of the State of Washing- ton that the foregoing is true and correct to the best of my skill and ability. M8 DATED this _ 26th day of December, 2006 in Bonney Lake, Washington. /s/ Christine P. Killien Christine P. Killien --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_2038%3A1. Public record. Not legal advice.