City of Seattle v. Allison , 148 Wash. 2d 75 ( 2002 )

Chambers, J.

(concurring in dissent) — I concur completely with Justice Sanders’ well reasoned dissent. I write separately only to more fully express my concern at the potential sweep of the lax approach the State would have us take to foundational requirements we have repeatedly instructed are strict and mandatory. When trial is effectively by machine, due process requires at the least assurances that the machine is accurate. Here, the State established by regulations promulgated by the State’s own toxicologist procedures to assure the accuracy of the machine. It failed to follow these procedures. The core of the majority’s reasoning is a belief some of these procedures are less equal than others and that a machine may confidently self-certify its own accuracy. The majority’s reasoning is circular because it is the very ability of the machine to accurately measure its own accuracy which is in question. I concur with the courts below and would hew to our prior holdings and rule that when the State establishes procedures to assure the accuracy of the BAC Verifer DataMaster II (DataMaster), the public is entitled to expect that the government will follow those procedures. Cf. State v. Ford, 110 Wn.2d 827, 833, 755 P.2d 806 (1988).

Guilt or innocence of the offenses here charged is often determined by a machine. By statute, the State has been relieved of the burden of showing intent, including knowledge. Further, the State does not always need to show intoxication. The government must merely show that within two hours of operating a motor vehicle, the accused had a blood alcohol reading on the DataMaster II machine of .08 or greater.⁶ Effectively, loss of liberty and property is determined by the measurement by a machine. Both our state and federal constitutions require that a person may not be deprived of liberty or property without due process of law. While a carefully managed and tended machine may be a useful tool for guarding due process, the credibility of the machine must be carefully monitored. In order for the government to impose strict liability based upon the measurement by a machine, the machine must be accurate. When the State seeks to impose strict liability based upon the measurement by a machine, properly promulgated regulations must be carefully followed. Ford, 110 Wn.2d 827; cf. State v. Baker, 56 Wn.2d 846, 852, 355 P.2d 806 (1960).

Compliance with former WAC 448-13-060 (1999) is an absolute foundational requirement for admissibility of test results. See State v. Cannon, 147 Wn.2d 41, 58, 50 P.3d 627 (2002); cf. State v. Straka, 116 Wn.2d 859, 810 P.2d 888 (1991). Fawn Allison challenges the foundational requirements were not met because the State did not establish that a “valid” test was performed under former WAC 448-13-040 (1999). She should prevail. A valid test requires a temperature reading within a certain range, and it is undisputed that many thermometers used to measure the temperature in BAC DataMasters were inaccurate at the time. As Justice Sanders aptly notes, temperature is critical because the DataMaster II relies on the known properties of solutions at specific temperatures. If the temperature does not actually fall within the appropriate range, at the very least the accuracy of the machine’s own certification is put into question.

I recognize that the majority’s holding is limited, and under the rule announced today, the DataMaster’s self-certification constitutes only prima facie rebuttable evidence of compliance with the admissibility requirements of former WAC 448-13-040. But effectively, the DataMaster’s evidence is the only evidence. Where the measurement by a machine effectively creates a mandatory and conclusive finding of guilt, we should not be satisfied by shifting the burden to the accused to prove the inaccuracy of the machine. The machine is owned, controlled, maintained, and certified by the State. It should be the duty of the State to affirmatively prove the accuracy of the machine, and the State’s affirmative duty should include satisfying its burden to prove that all procedural requirements to establish the accuracy of the machine have been satisfied. See, e.g., Ford, 110 Wn.2d 827.

I concur with the dissent on all points, and would affirm the municipal court’s suppression of the breath tests in all three cases.

Reconsideration denied January 31, 2003.

6 While the accused have the right to have a blood alcohol test drawn at a hospital at their own expense, very few avail themselves of this right. As a practical matter, the DataMaster II determines guilt or innocence in the vast majority of cases.