*1 2, 1988.] En 54009-8. Banc. June [No. Petitioner, v. Bret Washington, State Ford, Respondent. Moore, E. Attorney, Stephen Prosecuting Maleng,
Norm Spoor, and Carol Noonan Susan J. *2 Deputy, Senior and petitioner. for Deputies, and Paul E. Lobsenz Cullen, James by Lobsenz &
Wolfe, Cullen, respondent. for A. Douglas B. Attorney, Jewett, City
Douglas N. Assistant, petitioner. Whalley, amici curiae for Seattle-King Cohan of Molly Miller Catherine Cowan, L. Association; Douglas Public County Defender for Fox, curiae Scott amici Hayne, and Jon Stephen W. respondent. of the validity
Brachtenbach, concerns the J. This case to measure device of a by the state approval as is known device measuring That alcohol cоntent. breath (DataMaster). This BAC Verifier DataMaster machine intoxicated, along defendant, driving with while charged cases, pending in similarly other charged defendants with indicated which results, of the each suppress moved to test A 46.61.502. RCWof alcohol content violative a breath sup- hearing on consolidated; a cases number of were in the was held results to challenge pression Rindal. A.C. Judge District Court of Joel Bellevue Defendant suppress. to motion Judge Rindal denied the Appeal Rules to the superior pursuant court appealed Supe- The Limited Jurisdiction. Decisions of Courts of of discretionary review and granted Court reversed. We rior Superior Court. reverse in use of the case has great significance
While enforcement by law devices use testing alcohol breath state, upon which legal principles throughout well established. rests are decision follows: as are summarized involved legal principles The tox- the state delegated to First, Legislature validly has analysis of a approve methods of authority icologist content. alcohol to determine blood or breath person's review the Second, power have inherent the courts his of del- that his exercise to assure toxicologist's approval arbitrary caрri- an authority is not exercised egated in the Third, appeal, here and manner. the review on cious court, con- RALJ standards governed by superior in RALJ 9.1. tained detail, starting with review in more principles these
We
authority.
delegation
driving
crime
under
has defined the
Legislature
per-
while a
intoxicating liquor
driving
as
influence
specifically
or blood alcohol con-
has a
stated breath
son
46.61.502(1),
(2).
The determination
RCW
tent.
analysis
or blood authorized
an
breath
content
analysis
valid
of breath or blood
46.61.506. To be
RCW
according
approved
been
to methods
performed
have
"shall
46.61.506(3). The whole
toxicologist".
state
RCW
by the
*3
of the
has with-
сrime of
while intoxicated
driving
scheme
816,
Franco,
v.
challenges.
numerous
State
96 Wn.2d
stood
846,
(1982);
Baker,
P.2d 1320
State v.
56
355
Wn.2d
639
(1960);
Erdman,
286,
State v.
391 P.2d
P.2d 806
(1964);
808,
State v.
P.2d 1185
Canaday, 90 Wn.2d
585
518
(1978). Particularly
challenge
instructive on a constitutional
(1982).
Melcher,
357,
v.
State
33 Wn.
Finally, on review of the decision district has commit- court determinеs whether court superior 9.1(a). any with law. Consistent any error of RALJ ted 830
appellate court, review of factual of a trial findings how- ever, the reviewing court accept
shall factual those determinations the district [of supported substantial in evidence the record court] (1) which were made expressly by the court of limited (2) that jurisdiction, may reasonably or be inferred from the judgment of the court of limited jurisdiction. 9.1(b).
RALJ key
The
issue
whether
the state toxicologist's
approval by regulation of
arbitrary
the DataMaster was
and
capricious. We
first need some
which
standard
to deter
mine whether
this action is
arbitrary
capricious.
аnd
oft-repeated
definition is
unreasoning
""'willful and
action
disregard
UPS,
of
and
facts
circumstances.""'
Inc. v.
Rev.,
365,
Department
Wn.2d
even is that in judgment. arbitrary erred action. These But this is not or capricious
terms, when connection, used must mean wilful action, action unreasoning without con- sideration and in facts disregard and circum- stances Action is arbitrary case. not or capricious when honestly exercised due upon consideration where there is opinions, room two however much may be that an conclusion was believed erroneous reached.
Sweitzer, at 401. First,
From this several are distilled. language principles capricious. error in A judgment arbitrary judicial conclusion that the administrative decision was *4 Second, erroneous is not action essentially sufficient. must be of disregard the facts and circumstances
831 facts Third, necessarily to the court looks involved. agency. the administrative before our we must determine whether generalities From these of or a question law question examination a review is an fact, is duty our reviewing question If we are a of fact. trial accept factual determinations made simply to RALJ are substantial evidence. supported court which 9.1(b). of a appellate
The
review is
defendant
contends
disagree.
de novo.
Judi-
of law and therefore
We
question
indeed
may
pose
of administrative
action
cial review
rule
stem
example,
agency
of law. For
must
question
statutory
express
necessarily implied
grant
from an
or
i.e.,
authority,
delegation. The court reviews such rules
consistency
statutory authority and a reasonable
ascertain
implemented.
Comm'ty
Grеen River
being
with the statute
Bd.,
112,
College Higher
108,
v.
Educ. Personnel
95 Wn.2d
modified,
962,
P.2d
adhered
(1980). Generally,
be matter
questions
P.2d 1324
such
will
law.
Here, however,
are
we
concerned with
actions of
We
he
toxicologist.
determining
the state
are not
whether
his
he
beyond
authority,
acted
rather whether
acted
but
him.
disregard of
facts
circumstances before
did,
what
very
inquiry
toxicologist
nature of the
what
any
upon,
facts he relied
whether he acted without
rational
relation to the
before him. Conclusions about
facts
are
he
did
toxicologist
upon
action of the
based
what
did or
events, occurrences,
realities as to what
not do. These аre
University
Grimwood v.
They
took
are facts.
place.
(1988).
Sound,
Puget
Inc., 110 Wn.2d
rule is
the one
it has the
attacking
burden
of overcoming that
Co.
presumption. Weyerhaeuser
v.
Department
310, 314,
Ecology, 86 Wn.2d
In review, approaching favorably impressed we are by Coun., the in remarks Natural Inc. v. Resources Defense SEC, 1979): (D.C. 606 F.2d 1050 Cir. short,
In the concept "arbitrary capricious" of and review generalized demands, instead, defies application and close attention to the particular problem nature of the review, faced the agency. The of our in stringency case, given depends factors, a number of upon analysis of including the intent in expressed of as the rel- Congress, statutes, evant statute; particularly agency's enabling the needs, expertise, impartiality and of the as agency regards presented; issue ability and the of the court effectively to evaluate questions posed. Only through such a approach flexible can we review the multifarious types agency of actions in responsible participants as enterprise practical of governance. (Footnotes omitted.)
Thus, as we turn here, to the record we are mindful it is not our function to substitute our judgment for that of state toxicologist, nor was such the function of the trial An unwise judge. or even erroneous decision arrived at pur- suant to the legislative duty delegated, upon facts which motivated a decision, rational arbitrary capri- and That cious. toxicologist might have methodology used a precise more or might have used a procedure different of upon evaluation reflects his administrative but judgment, does not make his action arbitrary capricious. and upon
Before embarking a review of the record to deter- mine whether substantial supports evidence the stated or inferred reasonably factual determinations of District
833 He Rindal. Court, Judge context the decision of put we days, for 2 the last testimony full arguments heard and 33-page issued a p.m. at 10:15 He day's hearing ending understanding opinion thorough which demonstrates design opera- involved principles scientific Judge Rindal tion the DataMaster. The evidence before testimony pages exhibits. comprises grounds six opinion accurately rejects summarizes and suppress. the defendants' motion raised scope applying our narrow limited review Court, of the District we must remember the decision analysis mandated Legislature has *6 performed "according is if it is to breath or blood valid toxicologist”. the state RCW approved by methods 46.61- .506(3). of is judiciary The ultimate concern the that the test, in an approved competently methods result accurate administered, so a defendant test assured the do in fact reflect a reliable and accurate measure of results his her breath We are or content. satisfied ulti as goal by Judge mate reached here reflected Rindal's conclusion: case,
In although the instant there was substantial and rules, time of persuasive tion were without that accurate and adop- evidence that the at the basis, scientific no witness testified in the DataMasters the field were not producing precise contrary, results and the Sergeant testified that the results the evaluation Gullberg and tests on each performed certification instrument before field, in placed was him that the test convinced precise. from those instruments results were accurate Court, Opinion Rindal, Bellevue District Judge 30-31 (June 1986). helpful it is reviewing record summarize DataMaster: approval taken which led to
steps ad formed to evaluate 1. In 1983 an hoc committee was testing replacing an method breath use of infrared many years. in use State "Breathalyzer" previously (1960). The commit- Baker, P.2d 806 v. Gullberg, toxicologist Sergeant tee included state program, Patrol administrator of the breath test the State qualified expert. and a by submitted four Ultimately,
2. infrared devices were Verifier, the manufacturer including manufacturers a BAC the DataMaster. eventually produced of which by The various machines were tested the State Patrol 3. September April from 1983 to 1984. to meet prepared
4. In were specifications June 1984 bid and State Patrol. toxicologist criteria set produced to manufacturer which 5. Contract awarded Verifier, ultimately called DataMaster. 26, 1985, adopted WAC toxicologist 6. On March 448-12-210, which the BAC Verifier DataMaster approved through test instrument. WAC 448-12-220 infrared breath used, methodology, to be 448-12-340 defined the test operator's qualifications. from DataMaster was tested the State Patrol
7. The January It was not then use April 1985 to 1986. field, at until December 1985. least rule on De- adopted emergency
8. The toxicologist 16, 1985, provide which was to purpose the main cember 448- sample. test of the breath WAC for a more accurate 448-12-340. through 12-210 rules nonemergency adopted
9. rules, approving the again amend March 1985 definition, etc. device, procedures, test establishing *7 8,1986. March 10. Defendant was cited on challenge is that The main thrust of the defendant's defendant, field, in use in the and used on DataMaster approval WAC was not exist when the March 1985 did from the Second, points changes to 17 made. the defendant Superior in use. The machine and the DataMaster test the District to reverse upon points Court relied these two attraction, but superficial have chаllenges Court. These their employed dispels procedures examination of the close appeal. upon spectroscopy infrared principles scientific
The accepted. are established and operate machines which these the BAC testing, including devices submitted The four Verifier, principles. upon based those were to be testing protocol written created the toxicologist
The machines. of the four and evaluation testing used testing and upon reviewed and relied toxicologist The the DataMaster. approving before evaluation data Blood/ The approval. to prior were done correlations breath produced that all four machines opinion was toxicologist's results. satisfactory machines, bid of the four
Following testing substantial reviewed the toxicolo- prepared were specifications have met of the tested machines would While none gist. set specifications the bid perfectly specifications, the bid furnished, all to an relating the criteria for machines be scientific analysis performance upon based same the DataMaster principles. toxicologist The considered in com- type despite the same machine some differences be sрecifications. met the The differ- ponents, but which bid were not of ences between the Verifier and were still mea- toxicologist to the because both importance way. in the same suring alcohol toxicologist's is the compelling Highly significant "any instrument instruction that before [DataMaster] use], they the field for actual into the service placed [in reevaluated, correla- certified and have to be blood/breath Further, Transcript Proceedings, at 184. repeated.'' tions placed it's "every instrument before [DataMaster] accuracy preci- precision, should be evaluated for field —for at 186. accurаcy." Transcript Proceedings, sion and DataMaster, approval December 1985 WAC Before comparable with results additional tests were done concluded, before BAC Verifier. original use, that the instru- put was ever to actual Transcript Proceedings, precise. ments were accurate and 216. *8 836 Gullberg supervised conducted or most of the
Sergeant testi the initial machines and the DataMaster. He tests on in fied that addition to tests conducted at the direction of toxicologist, Highway Safety National Traffic Administration, in tested July the DataMaster. The results published. nature of the tests and the were met the standards on placed DataMaster federal and was upоn was relied approved products list. That evaluation in in his of the part Sergeant evaluation Data- by Gullberg Sergeant Gullberg opinion s Data- Master. It was reliable, precise instrument for Master was accurate purpose. Report Proceedings, its at 528. intended placed is emphasis upon changes Much between test signifi- machine and the one in use. Such could be changes cant, significance no testimonial record was made of the but *9 and Callow, C.J., Utter,
Pearson, Dolliver, Dore, Tern., JJ., J. Pro concur. Cunningham, and Durham, court, 14 SAR has been By order of the Pearson, C.J. — to this and the dissent suspended purposes appeal later this will be filed аt a date. opinion 30, Banc. June 1988.] [En its J. bases decision (dissenting) majority Goodloe, —The Sergeant Gullberg's toxicologist's on the state solely produces that an accurate assertion is evidence to result. Since there not substantial reliable support produces such a finding that DataMaster result, I dissent.
I that the standard of review of majority The correct 9.1, by which governed district court decision RALJ in part: states
(a) shall superior of Law. The court review Errors of limited deter- jurisdiction decision of the court has committed errors of law. any mine whether that court (b) superior The court Determinations. Factual supported detеrminations accept those shall factual (1) the record which were evidence substantial (2) jurisdiction, of limited or made the court expressly from the may reasonably judgment be inferred that the court of limited jurisdiction. mine.) 9.1(b)
(Italics with the substantial comports RALJ Appeals applies when rule that the Court of evidence Orland, 4A L. Wash. judgment. court reviewing superior 1983). (3d 7731, at ed. "Sub- Prac., Rules Practice 541 § contains evidence evidence exists if the record stantial 838 persuade fair-minded, quantity
sufficient per rational Share, of the truth premise." Bering son of the declared v. 212, 220, (1986), dismissed, P.2d 918 cert. (1987). 479 U.S. 93 L. Ed. 2d 107 Ct. S. case, In the present the District made express Court nо Thus, findings of fact. this court only accept is bound findings may reasonably those of fact that be inferred from district judgment. court majority concludes that the District Court made the finding inferred DataMaster an produces accurate result, and reliable asserts finding is based on However, only substantial evidence. one needs to read the to realize there is record not substantial evidence to such an support finding. inferred Interestingly, majority never the evidence discusses position it contends its that the supports which produces except accurate and reliable for the result state toxicologist's and assertion that Sergeant Gullberg's does. *10 Rather, the this majority improperly evidentiary turns around question by asserting that "there the nothing that the suggest produced record DataMaster an inaccu- when, administered result test rate its was to defendant at Majority opinion, simply Ford." 836. This statement not correct.
Sergeant testimony alone raises Gullberg's concerns produces whether DataMaster an accurate and reliable Sergeant Gullberg result. testified: Some testing, 1. DataMasters detected acetone during although simply solution simulator was alcohol and The cause never misreading water. for this was discovered. acetaldehyde 2. The DataMastеr fails to detect as a com- other pound ethyl although specifica- than alcohol the bid require (Acetaldehyde tions to detect interferents. is used make perfumes drugs.) The State concluded rather using pump 3. Patrol that having than the individual blow into the instrument was DataMaster, despite method to calibrate the proper Verax fact manufacturer recommended the latter different gave the DataMaster run on Test results method. The rea- used. method on the calibration depending results testified Gullberg found. was never disparity this son for scientifically more method was which he did not know accurate. with readings interferent false gave DataMaster
4. The was calibrated the machine when acetone solution an (Verax recommended originally acetone exclusion .10 level). tests were No at this he calibrated Instead, problem. this the cause of run to determine ever machine with decided to calibrate the State Patrol level exclusion, this because .03 approximately readings. interferent not false give machine did in one sam- cases, were detected interferents In some 5. (two run on samples are identical not the other ple but other). The source each against as a check each individual However, thе state discovered. was never problem of this the inter- by ordering that problem toxicologist solved This .005 to .01. raised from threshold level be ferent trigger .0 and .009 will any interferent between means device. the interferent detection with included difficulties problems DataMaster 6. Other Also, calibration factor. pump, simulator printer, mode, and the in the review up locked microprocessor not zero. system would Patrol, with the state time the State again,
Time and because away problems approval, adjusted toxicologist's determine nor Verax could the State Patrol neither methodology raises doubts Such problems. sourcе of those reliable an accurate and produces whether the result. concerned about apparently was
The State Patrol Data- testing the it encountered while problems numerous *11 1985, Patrol considered May In the State about Master. A met committee contract. terminating Patrol the State Interestingly, such a termination. discuss later until sometime the state inform did the contract. terminating it had considered toxicologist's state testimony raises further concerns about whether the DataMaster produces an accurate and reliable result. He testified that he approved the Data- Master becausе he Verifier, believed the predecessor, its was reliable based on the initial tests run on it. Neverthe- less, the state toxicologist admitted the following during his testimony:
1. He acknowledged that prior to the time the committee was formed to discuss adopting an infrared testing device, neither he nor the State Patrol had any familiarity with infrared breath alcohol testing.
2. He knew that the Verifier percent failed 55 of test lev- els in the evaluation procedures accuracy for both pre- cision. He also knew that the Verifier failed the initial evaluation tests and its performance would have failed to pass bid specifications at 18 out of 20 levels for both accu- racy precision. Further, provided evaluation tests no information on the Verifier's ability to detect interfer- ents isopropanol and methanol because of instrument fail- ure.
3. He did not consider Sergeant Gullberg's opinion when selecting the device. Sergeant Gullberg recommended that the State choose the Intoxilyzer 5000 over the Verifier and other instruments.
4. He considered the Verifier and the DataMaster virtu- ally identical, although Sergeant Gullberg considered the an entirely new instrument. He reached this conclusion because he felt that "the was still [DataMaster] alcohol measuring thе same way." Report of Proceedings, However, 164. he then conceded that no data existed to support this conclusion.
Decisionmaking
arbitrary
capricious
if it is willful
and unreasoning
action
ignoring
facts and circum-
stances. Micone v. Steilacoom
Comm'n,
Civil Serv.
44 Wn.
App. 636,
722 P.2d
denied,
review
toxicologist's actions make no sense. It is apparent that he made his questionable selection of the Verifier and then stayed with that choice no matter what happened. In other words, he arbitrarily acted and capriciously.
Furthermore, the DataMaster was fully not tested under the bid specification requirements, so there is a lack of data to study to ascertain whether the DataMaster produces precise accurate and results.
Sergeant Gullberg admits that the bid specifications were prepared with the intention that the infrared device used in the state would conform to each specification. Nevertheless, the DataMaster was never tested to determine if it met all specifications. the bid Sergeant Gullberg's testimony regarding specification bid included the following:
1. specifications The bid required the machine to detect interferents. The DataMaster acetaldehyde reads as alco- hol.
2. The bid specifications required the machine to have the capability for mouth detecting alcohol. Although Ser- geant Gullberg thinks that the DataMaster was tested for detection, mouth alcohol no such results were recorded. 3. The specifications bid required that oper- machine ate despite "power spikes", sudden surges of electrical power. The DataMaster was never tested to see what effect "power spike" would have on it.
4. The specifications bid required that oper- machine ate varying under environmental conditions: humidity —0 percent; ambient temperature to 120 degrees —20 Fahrenheit; pressure baromеtric to 32 inches of mer- —21 cury; 6,000 and altitude —0 to feet. Tests were never run on the DataMaster to see whether it operated within these parameters. specifications bid designed were purpose. this,
Despite many bid specifications ignored were and the State Patrol did not if determine the DataMaster met them.
g42 support the inferred in the record to is
There no evidence and reli- produces an accurate finding evi- Thus, asserts that substantial able the majority result. specifically out exists, point does dence but reality, conclusion proper refers. evidence to which it an accu- produce does not probably rate and reliable result.
II
it fails
majority
with the
My other disagreement
determining if DataMaster
results
key
address a
issue
*13
stan
this court follows the
Normally,
be
should
admissible.
(D.C.
States,
v. United
F.
Frye
293
1013
in
dard set out
testimony
of
1923),
ruling
admissibility
on the
Cir.
when
See State v.
or theories.
procedures
based on scientific
(1987)
336,
("rape
12
trauma
Black, 109 Wn.2d
745 P.2d
Martin,
v.
inadmissible);
State
101
syndrome"
evidence
(1984)
inad
evidence
713,
(hypnosis
P.2d 651
Wn.2d
684
312
591,
101
682 P.2d
Allery,
State v.
missible);
Wn.2d
admissible);
(1984) ("battered
syndrome" evidence
woman
(1978)
808,
v.
Canaday,
State
90
entific test are as the relevant accepted test reliable generally has been Peterson, Furthermore, the community. at 527. scientific court, 527, held that Peterson page as to the itself. inquiry reliability machine [t]he If validity principle prerequisite of a scientific evidence, into requires its admission then consistency ability that evidence machine to that employ principle reliably рrecede must also admission scientific results machine's into evidence. (Italics mine.) The Peterson holding finds with support scholarly opinion many other jurisdictions. expert One commented that many
in jurisdictions subscribing Frye, proponent instrument, prove must gained general acceptance like theory, has relevant scientific circles. jurisdictions Frye These apply both the instrument the theory. (Footnote omitted). E. Imwinkelried, Expert Scientific (2d 1981). Evidence 49 ed. case, present parties agree all the the scien- principle tific technology infrared upon which the Data- operates has Master been accepted by established and community. However, scientific nowhere in the district opinion DataMaster, court does address whether the itself, accepted machine been has as reliable in the scien- Rather, tific community. District Court his Judge, opinion, states:
It seems to this writer on Canady reliance its [sic] [and *14 Frye] may only because, be significant here on the narrow issue before that court as govern- to whether the required ment should be to ampoules" retain the "test for later the retesting, state was silent. Opinion Rindal, of Judge Court, Bellevue District June 1986, at 27. It is Judge clear that did grasp Rindal not the standard; significance Frye otherwise, of the he would have applied the test the present to situation.
Similarly, majority Frye the fails to discuss the test. I can Why? only assume the majority that did not address Frye the not majority because then could have come out with result. its on expert
The sole infrared who testified was technology Jensen, Dr. Richard E. a Ph.D. from University Iowa chemistry. He was analytical in the involved field of infrared breath test and evaluation Minnesota's selection devices.
Dr. had reviewed state testified that he Jensen Gullberg's listened to deposition, Sergeant toxicologist's referred all the documents testimony, and reviewed Gullberg. was no basis to draw
Dr. that there Jensen then testified accuracy as to DataMaster's any conclusion scientific that, even reliability. by stating He concluded at time, support did find- present the evidence a scientific reliable DataMaster was an accurate ing that He his purpose device intended. reached conclusion for the following: based in on part (the Verifier)
1. run on a device initial tests were The DataMaster) (the from the device significantly differed field; therefore, from a in the scientific proposed to be used on the Verifier have no viewpoint, measurements made field. bearing what was used on pro- 2. most of the tests that were The Verifier failed posed to used as criteria. be indicating lack of data
3. There is marked and reliable result. produces DataMaster an accurate data, Gullberg testified unrecorded Although Sergeant that data be recorded so that theory requires scientific can be evaluated.
4. in the two methods of cali- gross There is a difference blow) high used on The (pump bration or the DataMaster. disparity in results between the two methods indicates accurately." "you Report Proceedings, can't measure 609. ignore Dr. Jensen's why
It is chose majority clear accepted by has not been testimony. results. There- as reliable community producing scientific met; not been fore, admissibility has Frye standard run on should not be admis- test results sible.
III any despite the DataMaster approved has majority result. accurate and reliable produces evidence that worked can be with Perhaps problems indi- are, no that an guaranty there is they out. But unless will an accurate get on the DataMaster vidual a test given Therefore, I dissent. reading. and reliable 20, 1988. July denied Reconsideration 53627-9, July 7, 1988.] En 54295-3. Banc. [Nos. Guardian, Respondents, as E. al, Wagenblast, et John 105-157-166J, v. Odessa School District No. Appellants. al, et Appellants, Arthur R. v. Seattle Vulliet, al, et al, Public School District No. et Respondents. notеs changes. Defendant the existence 17 those Rindal, no evi- Judge did but defendant offers changes, as example, For significance changes. dence of the of those is a difference in and a difference radio circuitry there These do not frequency changes interference antennas. the accurate positive expert opinions overcome the as to performance of the DataMaster which tested precise defendant. may premature It well have been to before ultimate machine approval issue his March However, applied was hand. the DataMaster was beforе Ford, tested, certi- to retested and defendant had been device toxicologist, fied. The to whose satisfaction the must mandate, perform issued new according legislative approving the DataMaster. This occurred more again WAC was than 3 months before defendant cited. suggest there summary, nothing the record when produced an inaccurate result its There was no test was administered to defendant Ford. use, in actual who testified that the DataMasters witness toxicologist, approval producing after final were precise accurate and results. support the factual evidence There was substantial Court; the judge District made determinations Therefore, Superior Court no of law. committed error reversed.