State Of Washington v. Christi L. Kocher , 199 Wash. App. 336 ( 2017 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 74775-4-1
Respondent, DIVISION ONE
0
V.
CHRISTI L. KOCHER, PUBLISHED
Appellant. FILED: June 26, 2017
Cox, J. — At issue is whether a state patrol trooper had reasonable
suspicion of a traffic infraction by Christi Kocher to make a warrantless traffic
stop. Because RCW 46.61.670 provided authority for the stop under the
circumstances of this case, we affirm the decision of the superior court on RALJ
review.
A state patrol trooper drove behind Kocher as she drove in the far right
lane southbound on Interstate 5 during the late evening. As traffic to Kocher's
front and left came to a stop, Kocher drove two wheels of her vehicle over the fog
line for approximately 200 feet. Based on these observations, the trooper
stopped Kocher's vehicle.
No. 74775-4-1/2
Kocher submitted to sobriety tests during the stop. The trooper observed
clues of intoxication and arrested her for driving under the influence, a traffic
infraction under RCW 46.61.502.
The State charged Kocher with driving under the influence, contrary to
RCW 46.61.502 and RCW 46.61.506. She moved to suppress all evidence from
the stop and for dismissal. She argued that the trooper had no reasonable
suspicion to justify the stop. The State disagreed. It argued that Kocher
committed a traffic infraction by driving on the shoulder of the road for
approximately 200 feet, in violation of RCW 46.61.670.
Based on the trooper's testimony and the dash camera footage from his
vehicle, the district court found that the State "only established a 200 foot
incursion over the fog line that occurred only when traffic in front and next to the
defendant came to a stop on Interstate 5." The court concluded that this was
insufficient to establish reasonable suspicion under RCW 46.61.140 and the
cases cited in its written decision. It granted Kocher's motion to suppress all
evidence and dismissed the case.
The State appealed to the superior court, arguing there was reasonable
suspicion under RCW 46.61.670, an argument the district court rejected. The
RALJ court agreed with the State, reversing the district court's decision and
remanding for further proceedings. The RALJ court concluded that RCW
46.61.670, not RCW 46.61.140, controlled under the circumstances of this case.
We granted Kocher's request for discretionary review.
1 Clerk's Papers at 14.
2
No. 74775-4-1/3
r
REASONABLE SUSPICION
Kocher argues that the RALJ court applied the wrong statute to determine
whether the trooper had reasonable suspicion of a traffic infraction to stop her.
Specifically, she contends that RCW 46.61.140, "Driving on roadways laned for
traffic," not RCW 46.61.670, "Driving with wheels off roadway," applies. We hold
that RCW 46.61.670 controls where it is undisputed that Kocher operated the
wheels of her vehicle over the fog line, off of the roadway.
Both the Fourth Amendment to the United States Constitution and article I,
section 7 of Washington's Constitution prohibit unreasonable seizures.2 A traffic
stop constitutes a seizure.3 Warrantless seizures are per se unreasonable,
unless an exception to the warrant requirement applies.4 The State bears the
burden of establishing an exception.5
"Warrantless traffic stops are constitutional ... as investigative stops but
only if based upon at least a reasonable articulable suspicion of either criminal
activity or a traffic infraction, and only if reasonably limited in scope."6 "The
narrow exception to the warrant requirement for investigative stops has been
extended beyond criminal activity to the investigation of traffic infractions."7 This
z State v. McLean, 178 Wash. App. 236, 244, 313 P.3d 1181 (2013).
3 Id.
4 State v. Snapp, 174 Wash. 2d 177, 187-88, 275 P.3d 289 (2012).
5 Id. at 188.
6 State v. Arreola, 176 Wash. 2d 284, 292-93, 290 P.3d 983 (2012).
7 Id. at 293.
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No. 74775-4-1/4
is due to "'the law enforcement exigency created by the ready mobility of vehicles
and governmental interests in ensuring safe travel, as evidenced in the broad
regulation of most forms of transportation."'$
When reviewing whether an investigative stop was lawful, we evaluate the
totality of the circumstances presented to the officer, including the officer's
training and experience.9
We also interpret statutes to determine and apply the legislature's intent.10
That intent is solely derived "from the statute's plain language ...." We must
read the enactment as a whole and harmonize the provisions "by reading them in
context with related provisions."12
"'[W]here the Legislature uses certain statutory language in one instance,
and different language in another, there is a difference in legislative intent."'13
Courts may not add words where the legislature has chosen to exclude them.14
8 Id. (quoting State v. Day, 161 Wash. 2d 889, 897, 168 P.3d 1265 (2007)).
9 McLean, 178 Wash. App. at 244-45.
10 Segura v. Cabrera, 184 Wash. 2d 587, 591, 362 P.3d 1278 (2015).
11 Id.
12 Id. at 593.
13City of Kent v. Beigh, 145 Wash. 2d 33, 45-46, 32 P.3d 258 (2001) (internal
quotation marks omitted) (quoting State v. Enstone, 137 Wash. 2d 675, 680-81, 974
P.2d 828 (1999)).
14 State v. Arlene's Flowers, Inc., 187 Wash. 2d 804, 829, 389 P.3d 543
(2017).
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No. 74775-4-1/5
When the plain language of a statute is unambiguous, courts will not construe the
statute otherwise.15
We review de novo questions of statutory interpretation.16
Here, Kocher does not challenge the district court's factual determinations.
So they are verities on appeal.77
Notably, the district court found that "the State only established a 200 foot
incursion over the fog line that occurred only when traffic in front and next to the
defendant came to a stop on Interstate 5."18 Thus, there is no dispute that
Kocher operated her vehicle partially over the fog line, which is off the roadway,
for a distance of 200 feet.19
The dispute between the parties centers on which of two statutes controls
the determination whether reasonable suspicion to initiate a traffic stop exists
under these undisputed facts. Kocher argues that RCW 46.61.140 controls. The
State maintains that RCW 46.61.670 controls. We agree with the State.
In relevant part, RCW 41.61.670 provides:
It shall be unlawful to operate or drive any vehicle ... over or along
any pavement ... on a public highway with one wheel or all of the
wheels off the roadway thereof, except ... for the purpose of
15 Id.
16 W. Plaza, LLC v. Tison, 184 Wash. 2d 702, 707, 364 P.3d 76 (2015).
17 Mueller v. Wells, 185 Wash. 2d 1, 9, 367 P.3d 580 (2016).
18 Clerk's Papers at 14.
19 See RCW 46.04.500; Becker v. Tacoma Transit Co., 50 Wash. 2d 688,
697, 314 P.2d 638 (1957).
4-;,
No. 74775-4-1 /6
stopping off such roadway, or having stopped thereat, for
proceeding back onto the pavement ....(201
Under the plain language of this statute, it is a traffic infraction, except in
certain situations not relevant here, to drive a vehicle "on a public highway with
one wheel or all of the wheels off the roadway."21 A"roadway" is the "portion of a
highway improved, designed, or ordinarily used for vehicular travel, exclusive of
the sidewalk or shoulder . . . ."22
Based on the straightforward application of this statute to the undisputed
facts of this case, the state trooper had reasonable suspicion to believe that
Kocher committed a traffic infraction. The warrantless traffic stop was lawful.
State v. Huffman23 is consistent with this result. There, a trooper stopped
Sarah Huffman for weaving while driving a vehicle on a roadway.24 Specifically,
the trooper observed Huffman "jerking back to the right side of the road [three
times]. On the fourth occasion, the vehicle crossed the centerline" of the
roadway.25 After the stop and investigation, the trooper arrested Huffman for
driving under the influence.26
20 (Emphasis added.)
21 RCW 46.61.670.
22 RCW 46.04.500; Becker, 50 Wash. 2d at 697.
23 185 Wash. App. 98, 107, 340 P.3d 903 (2014).
24 Id. at 101.
zs Id.
zs Id.
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No. 74775-4-1/7
In the prosecution that followed, Huffman moved to suppress all evidence
obtained from the stop.?' She argued there was no reasonable suspicion of a
traffic infraction under RCW 46.61.140 to justify the stop.28 The district court
agreed and granted her motion.
On RALJ review, the superior court reversed. The court concluded that
Huffman had committed a traffic infraction under RCW 46.61.100.29
This court granted Huffman's request for discretionary review. The
question was "whether the 'as nearly as practicable' language of RCW 46.61.140
applie[d] to RCW 46.61.100.1130 We held that this qualifying language of RCW
46.61.140 does not apply to RCW 46.61.100.31 We further concluded that our
2' Id.
28 See id.
29 Id. at 101-02. This statute provides, in relevant part, as follows: "(1)
Upon all roadways of sufficient width a vehicle shall be driven upon the right half
of the roadway, except as follows: (a) When overtaking and passing another
vehicle proceeding in the same direction under the rules governing such
movement; (b) When an obstruction exists making it necessary to drive to the left
of the center of the highway; provided, any person so doing shall yield the right-
of-way to all vehicles traveling in the proper direction upon the unobstructed
portion of the highway within such distance as to constitute an immediate hazard;
(c) Upon a roadway divided into three marked lanes and providing for two-way
movement traffic under the rules applicable thereon; (d) Upon a street or highway
restricted to one-way traffic; or (e) Upon a highway having three lanes or less,
when approaching a stationary authorized emergency vehicle, tow truck or other
vehicle providing roadside assistance while operating warning lights with three
hundred sixty degree visibility, or police vehicle as described under RCW
46.61.212(2)."
30 Huffman, 185 Wash. App. at 102.
31 Id. at 107.
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No. 74775-4-1/8
decision in State v. Prad032 was limited the facts in that case, which involved only
a violation of RCW 46.61.140, not RCW 46.61.100.33
Similar logic applies here. RCW 46.61.670 is explicit that it is unlawful to
drive any vehicle:
over or along any pavement ... on a public highway with one
wheel or all of the wheels off the roadway thereof, except ...
for the purpose of stopping off such roadway, or having stopped
thereat, for proceeding back onto the pavement .., [34]
Thus, driving over the fog line is a traffic infraction unless one of the
enumerated exceptions in this statute applies.
Here, Kocher did not squarely raise below the argument that she satisfied
the stopping exception.35, Thus, we need not consider this argument.36 In any
event, she properly concedes she did not stop.37
In contrast, RCW 46.61.140 addresses the safe changing of lanes and the
use of a centerline. Specifically, it states:
Whenever any roadway has been divided into two or more clearly
marked lanes for traffic the following rules in addition to all others
consistent herewith shall apply:
32 145 Wash. App. 646, 186 P.3d 1186 (2008).
33 Huffman, 185 Wn. App at 107.
34 (Emphasis added.)
35 See Clerk's Papers at 107-08.
36 See RAP 2.5(a).
37 Clerk's Papers at 86, 89, 98; Appellant's Reply Brief at 7; Wash. Court
of Appeals oral argument, State v. Kocher, No. 74775-4-1 (June 2, 2017), at 37
min., 56 sec. through 37 min., 59 sec. (on file with court).
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No. 74775-4-1/9
(1) A vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane until the
driver has first ascertained that such movement can be made with
safety.
[38]
Notably, this statute contains the qualifier "as nearly as practicable" that
RCW 46.61.670 does not. Moreover, there is no mention of driving off the
roadway as stated in RCW 46.61.670.
Accordingly, the RALJ court properly applied RCW 46.61.670 and
concluded that the trooper lawfully stopped Kocher.
Similarly to Huffman, Kocher unpersuasively argues that harmonizing
RCW 46.61.140 with RCW 46.61.670 requires reading into the latter statute the
former's "as nearly as practicable" language. The Huffman court rejected this
argument.39 And we hold likewise. We will not, in the guise of construing the
statute, add language to RCW 46.61.670 that the legislature chose not to put
there.40 Such an interpretation would be inconsistent with the plain language of
RCW 46.61.670.
Kocher relies on two cases from this court to support her argument that
the trooper did not have reasonable suspicion to conduct the stop. She argues
that courts must look at the totality of the circumstances to make this
determination. Those cases are distinguishable.
38 RCW 46.61:140 (emphasis added).
39 Huffman, 185 Wn. App at 104-05.
See In re Estate of Mower, 193 Wash. App. 706, 713, 374 P.3d 180,
40
review denied sub nom., 186 Wash. 2d 1031 (2016).
No. 74775-4-1/10
In Prado, a police officer observed Benjamin Tonelli Prado's vehicle cross
the white line dividing the exit lane from the adjacent lane.41 In State v. Jones, a
police officer observed Donald Jones's vehicle cross the fog line three times.42 In
those cases, the State relied on RCW 46.61.140 to justify the traffic stop.43 Thus,
this court applied a"totality of the circumstances" analysis to determine whether
the officers had reasonable suspicion to conduct the stops.aa
Here, the State relied on RCW 41.61.670. As we explained earlier in this
opinion, this statute is not modified by,the language in RCW 46.61.140.
Accordingly, Kocher's reliance on these cases is misplaced.
Kocher also relies on an out-of-state case and federal cases to support
her argument.45 But our task here is to decide the legislative intent of legislators
in Washington, not the intent of legislatures elsewhere. We have done so by
reading the plain words of RCW 41.61.670.
Kocher argues that the State's interpretation of RCW 41.61.670 "would
result in absurdity." She specifically argues that "even the most minor deviation
across a fog line ... could result in warrantless seizures, whereas identical
41 145 Wash. App. at 647.
42 186 Wash. App. 786, 788, 347 P.3d 483 (2015).
43 See Jones, 186 Wash. App. at 790; Prado, 145 Wash. App. 646, 648-49.
aa See Jones, 186 Wash. App. at 791-94; Prado, 145 Wash. App. 646, 647-49.
45 See United States v. Delgado-Hernandez, 283 F. App'x. 493 (9th Cir.
2008); United States v. Colin, 314 F.3d 439 (9th Cir. 2002); State v. Livingston,
206 Ariz. 145, 75 P.3d 1103 (Ariz. Ct. App. 2003).
10
No. 74775-4-1/11
conduct across a[non-solid boundary] line would not."46 She similarly argues
that public policy would disfavor such a result.
These arguments are better directed to the legislature, not this court. The
legislative intent of RCW 46.61.670, under its plain words, is to define a traffic
infraction under circumstances like those in this case. We need not decide any
other questions.
Kocher relies on Raybell v. State47 to argue that RCW 46.61.670 does not
apply to every fog lane incursion. But in that wrongful death case, the road
lacked a shoulder.48 Thus, Division Two of this court determined that the
legislature did not intend for the statute to apply to a roadway without a
shoulder.49 The roadway in this case has a shoulder. That case has no bearing
here.
Kocher also argues that we should apply the rule of lenity and interpret
RCW 46.61.670 in her favor. The rule of lenity applies to ambiguous statutes in
criminal cases.50 RCW 46.61.670 is not ambiguous. Thus, the lenity rule has no
application here.
Lastly, Kocher argues that the trooper lacked experience to recognize
impaired driving and that the State failed to present evidence of his reasonable
as Appellant's Amended Brief at 11.
476 Wash. App. 795, 796, 496 P.2d 559 (1972).
48 Id. at 797-98.
49 Id. at 806.
50 State v. Conover, 183 Wash. 2d 706, 712, 355 P.3d 1093 (2015).
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No. 74775-4-1/12
suspicion of criminal behavior. The district court did not address this question
because of the posture of the case when it granted the motion to suppress and
dismiss. Thus, we need not address this argument.
We affirm the RALJ court's decision and remand to the district court for
further proceedings.
WE CONCUR:
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