Court of Appeals of Washington
Singh v. State
No. 75750-4-I·Judge: Mann·Attorney: Jacob William Dishion, Washington Attorney General's Office, Licensing & Administrative Law Attorney General, Attorney at Law, 800 Fifth Ave., Suite 2000, Ms-tb-14, Seattle, WA, 98104-3188, for Petitioner., Diana Lundin, Lundin Law PLLC, 13300 Bothell Everett Hwy., Ste. 303, #655, Mill Creek, WA, 98012-5312, for Respondent., ¶ 2 In November 2015, Singh hit another vehicle while driving his car. The responding police officer attempted to administer a preliminary alcohol breath test. Singh did not speak English and the implied consent warnings for breath testing Were not immediately available in his primary language. When Singh struggled to comply with the responding police officer's directions for the preliminary breath test, the officer decided to forego the breath testing and obtained a search warrant for a blood sample to test for alcohol or drugs., ¶ 3 Singh was taken to Valley Medical Center, where a phlebotomy technician drew a sample of his blood and sent the sample to the Washington State Toxicology Laboratory. Forensic scientist Elizabeth Wehner tested Singh's blood sample for the presence of alcohol. She prepared a report that included her signed certification that the testing procedures complied with the methods approved by the state toxicologist., ¶ 5 The test showed that Singh's blood alcohol content was 0.20 grams per 100 milliliters, which exceeds the legal limit for driving in Washington.2, ¶ 6 After receiving Singh's arrest report and test results, the Department notified Singh that it intended to suspend his license for 90 days. Singh requested an administrative hearing before a Department hearing examiner to contest the suspension., ¶ 7 At Singh's license revocation hearing, the Department offered as evidence two separate documents: Wehner's certification of the testing process and a "CERTIFICATE OF COMPLIANCE."3 The company that *507manufactured the tubes created the certificate of compliance. It described the technical specifications for the lot number of the tubes used to collect Singh's blood for testing. The certificate of compliance specified that the tubes were manufactured for blood alcohol determination and certified that the tubes were compliant with the requirements for sterility and additives., ¶ 9 Even without the certificate of compliance, the hearing examiner determined that there was prima facie evidence that the analysis of Singh's blood sample complied with the statutory requirements for blood draws and testing. The hearing examiner sustained the Department's suspension of Singh's driver's license., ¶ 11 The Department petitioned this court for discretionary review as an issue of public interest and because the superior court's decision conflicted with precedent that reviewing courts should not reweigh evidence. A commissioner of this court determined that the Department failed to demonstrate that the superior court's decision was inconsistent with Washington precedent. But the commissioner granted review because the issue involved sufficient public interest.5, ¶ 12 The Department argues that the forensic scientist's sworn statement certifying compliance with the approved methods for blood alcohol testing establishes a prima facie case of compliance with the statutory requirements for preservation of blood alcohol test evidence. We disagree, as evidence of compliance with the WAC's analytical testing procedures is not evidence of compliance with the mandatory sample preservation requirements., ¶ 13 The implied consent statute provides an informal and streamlined administrative process for hearings in order to avoid lengthy litigation of license suspension and revocation proceedings. Ingram v. Dep't of Licensing, 162 Wash.2d 514, 525, 173 P.3d 259 (2007) ; RCW 46.20.308. This streamlined procedure allows for the admission of relevant evidence without adherence to the highly technical foundation and hearsay rules. Ingram, 162 Wash.2d at 525, 173 P.3d 259. Washington's implied consent statute also governs judicial review of license suspension proceedings. RCW 46.20.308., *508¶ 14 Under the implied consent statute, evidence is subject to the requirements of RCW 46.61.506. Cannon v. Dep't of Licensing, 147 Wash.2d 41, 52, 50 P.3d 627 (2002). The statute stipulates that blood alcohol tests must be "performed according to methods approved by the state toxicologist." RCW 46.61.506(3). The state toxicologist's established techniques for blood alcohol analysis are delineated in the WAC.Ch. 448-14 WAC., WAC 448-14-020(3)(a), (b). These requirements ensure that the blood sample is properly preserved for testing. State v. Clark, 62 Wash. App. 263, 270, 814 P.2d 222 (1991). The Department has the initial burden of establishing a prima facie case that blood preservation and testing were correctly performed and, therefore, free of adulteration that could produce error. State v. Brown, 145 Wash. App. 62, 69-70, 184 P.3d 1284 (2008). Satisfaction of WAC 448-14-020(3)(b) is mandatory, notwithstanding the Department establishing a prima facie case that the sample was unadulterated. State v. Garrett, 80 Wash. App. 651, 653, 910 P.2d 552 (1996) ; Brown, 145 Wash. App. at 71-72, 184 P.3d 1284., ¶ 18 Substantial evidence is sufficient to persuade a fair-minded person of the truth of the stated premise. Sheeks, 47 Wash. App. at 69, 734 P.2d 24. We must accept factual determinations made by the Department or reasonably inferred from the Department's final order that are supported by substantial evidence. RCW 46.20.308(9) ; RALJ 9.1(a) ; Clement, 109 Wash. App. at 374 n.6, 35 P.3d 1171. A reviewing court must be *509"careful to do no more than search for the presence of evidence and not to weigh it or evaluate credibility." Sheeks, 47 Wash. App. at 69, 734 P.2d 24., ¶ 21 The Department argues that Wehner's certification was properly admitted and proved compliance under the lower evidentiary standards of the implied consent statute. While the implied consent statute has a lower threshold for admitting evidence, the Department still has the burden of proving a valid blood test based on compliance with the WAC requirements. See Cannon, 147 Wash.2d at 59, 50 P.3d 627 ; RCW 46.61.506(3)., ¶ 22 Wehner's report was the only evidence offered by the Department to show that the preservation and testing of Singh's blood samples complied with all WAC requirements. But her certification only establishes a prima facie case for her compliance in administering the analytical tests of Singh's blood, not the specifics of sample preservation. Thus, even drawing all inferences in favor of the Department, Wehner's report does not establish compliance with WAC 448-14-020(3).0 citations·
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Opinions
Mann, J. Becker, J.