308 P.3d 800
Wash. Ct. App.2013Background
- Jacob was convicted of felony DUI under former RCW 46.61.502(6) with a prior criminal history affecting his offender score.
- Trial court used RCW 9.94A.525(2)(e) to calculate an offender score, including some prior offenses over time.
- Jacob sought to introduce inhaler testimony claiming COPD inhaler usage could affect blood alcohol results; the court excluded it.
- State toxicology indicated 0.10 BAC and discussed inhalants that could affect HGN, but no inhalants were proven in Jacob’s blood.
- Jacob was sentenced to 60 months confinement and 364 days DWLS, plus a community custody term, with total not to exceed the statutory maximum; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the offender score properly included prior offenses. | Jacob argues Morales requires excluding 1989 DUI and 1993 drug. | State contends those offenses fit RCW 9.94A.525(2)(e) through continued intervals. | Partial victory; 1989 DUI excluded; 1993 drug allowed to begin a five-year interval; remand for recalculation. |
| Whether the sentence exceeded statutory maximum by combining confinement with community custody. | Jacob contends the term exceeded the maximum. | State concedes the error under current law. | Sentence vacated and remanded for resentencing after offender-score recalculation. |
| Whether inhaler testimony was erroneously excluded. | Jacob sought to admit inhaler use to challenge BAC readings. | State argues no evidence links inhaler to BAC results; inhaler testimony irrelevant. | Exclusion upheld; conviction affirmed pending resentencing. |
Key Cases Cited
- State v. Morales, 168 Wn. App. 489 (2012) (limits on which prior offenses count for offender score; ten-year/five-year windows; five-year intervals defined)
- In re Pers. Restraint of Brooks, 166 Wn.2d 664 (2009) (superseded by statute as recognized in Boyd; relevance to offender-score standards)
- Seattle Ass’n of Credit Men v. Gen. Motors Acceptance Corp., 188 Wn.2d 635 (2002) (statutory interpretation—avoid reading into statute what it does not say)