* State of Washington v. Jena Dale Brooks

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Petitioner,
v.
JENA DALE BROOKS,
Respondent.
)
)
)
)
)
)
)
)
)
No. 35002-9-III
(consolidated with
No. 35003-7-III)
PUBLISHED OPINION
PENNELL, J. — Washington’s traffic code prohibits operating a vehicle on any part
of a highway that does not meet the statutory definition of a roadway. Jena Brooks’s car
was stopped for violating this provision after it crossed a neutral area separating a
highway onramp from an adjacent lane of travel. Because the neutral area does not meet
the definition of a roadway, the stop was permissible. The superior court’s ruling to the
contrary is therefore reversed.
FILED
FEBRUARY 1, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Nos. 35002-9-III; 35003-7-III
State v. Brooks
2
Figure 1
BACKGROUND
While merging onto westbound U.S. Route 97 from U.S. Route 2 in Chelan
County, Jena Brooks’s car crossed over a portion of
the highway designated as a “neutral area.” A neutral
area is a paved triangular space separating an
entrance or exit ramp from an adjacent lane of
highway. The neutral area between Route 97 and its
merger with westbound Route 2 is marked on each
side by thick white channelizing lines. Figure 1 is a
depiction of a neutral area similar to the one crossed
by Ms. Brooks.1
A Washington State Patrol trooper observed
Ms. Brooks’s vehicular activity and performed a traffic stop. Ms. Brooks was ultimately
arrested for driving on a suspended license and other misdemeanor offenses.
During proceedings in district court, Ms. Brooks filed a motion to suppress,
arguing her vehicle had been stopped without cause. The motion was denied. Pertinent
1 FED . H IGHWAY A DMIN ., U.S. D EP’ T OF T RANSP., MANUAL ON U NIFORM T RAFFIC
CONTROL D EVICES FOR STREETS AND H IGHWAYS fig.3B-9, at 360 (2009 ed., rev. May
2012).
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Nos. 35002-9-III; 35003-7-III
State v. Brooks
3
to this appeal, the district court ruled Ms. Brooks’s merger over the highway’s neutral
area constituted “driving with wheels off roadway,” in violation of RCW 46.61.670. 2
Ms. Brooks was subsequently convicted of several misdemeanor offenses after a jury
trial.
Ms. Brooks successfully appealed the suppression ruling to the superior court.
It found Washington’s definition of a roadway ambiguous in the context of a highway’s
neutral area. The superior court then invoked the rule of lenity and determined Ms.
Brooks should not have been stopped for driving with wheels off the roadway in violation
of RCW 46.61.670.
The State sought discretionary review from this court. Review was granted on two
specific issues: (1) whether the term roadway is ambiguous in the current context, and
(2) if the term is ambiguous, whether the rule of lenity is an available tool of statutory
construction that might benefit a defendant such as Ms. Brooks.
ANALYSIS
Discerning the meaning of the term “roadway,” as used in RCW 46.61.670, is a
2 “Driving with wheels off roadway. It shall be unlawful to operate or
drive any vehicle or combination of vehicles over or along any pavement or gravel
or crushed rock surface on a public highway with one wheel or all of the wheels
off the roadway thereof, except as permitted by RCW 46.61.428 or for the purpose
of stopping off such roadway, or having stopped thereat, for proceeding back onto
the pavement, gravel or crushed rock surface thereof.” RCW 46.61.670.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Nos. 35002-9-III; 35003-7-III
State v. Brooks
4
matter of statutory interpretation. As such, our review is de novo. Dep’t of Ecology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). We focus our statutory
interpretation analysis on the language used by the legislature. In re Marriage of
Schneider, 173 Wn.2d 353, 363, 268 P.3d 215 (2011). Resources such as dictionaries
may be used to decipher a statute’s plain meaning. Cornu-Labat v. Hosp. Dist. No. 2,
177 Wn.2d 221, 231, 298 P.3d 741 (2013). However, we will not resort to aides of
construction such as legislative history and (perhaps) the rule of lenity unless we first find
the legislature’s language truly ambiguous. Timberline Air Serv. Inc. v. Bell Helicopter-
Textron, Inc., 125 Wn.2d 305, 312, 884 P.2d 920 (1994); State v. Conover, 183 Wn.2d
706, 712, 355 P.3d 1093 (2015).
Interpreting the term “roadway” begins with the relevant statutory text. Title 46
RCW defines “roadway” as “that portion of a highway improved, designed, or ordinarily
used for vehicular travel, exclusive of the sidewalk or shoulder even though such
sidewalk or shoulder is used by persons riding bicycles.” RCW 46.04.500.
The statutory definition of a roadway involves a two-part inquiry. First, we ask
whether a given portion of highway meets the triggering definition of a roadway. In other
words, is the area improved, designed, or ordinarily used for vehicular travel? If not, the
inquiry ends. The area is not a roadway. But if at least one of the three triggering
definitions applies, we go on to ask whether the area is excluded from the scope of a
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Nos. 35002-9-III; 35003-7-III
State v. Brooks
5
roadway because the area constitutes a sidewalk or shoulder. If neither exclusion applies,
then the area in question falls under the legislature’s definition of a roadway.
Of the three triggering definitions, highway design is the least indicative of
roadway status in the current context. A highway’s neutral area is not a vehicle lane. It is
too short to facilitate meaningful travel. And its triangular shape cannot consistently
accommodate the size of a vehicle. Rather than being designed for vehicular travel, it is
apparent the neutral area is designed as a buffer zone. It keeps vehicles separate so as to
facilitate speed adjustment and, in the context of a highway onramp, safe vehicle
merging.
National standards set by the Manual on Uniform Traffic Control Devices for
Streets and Highways confirm our observations about the apparent design purpose of a
highway’s neutral area. F ED . H IGHWAY A DMIN ., U.S. D EP’ T OF T RANSP., MANUAL ON
U NIFORM T RAFFIC CONTROL D EVICES FOR STREETS AND H IGHWAYS (2009 ed.,
rev. May 2012) (MUTCD).3 The MUTCD refers to the neutral area as an “island.”
MUTCD, § 3I.02, at 430. As such, it is an area intended for vehicle “separation.”
3 The MUTCD is the national standard for traffic control signals on public
highways and has been adopted by Washington’s secretary of transportation.
RCW 47.36.020; WAC 468-95-010. Therefore, it is an appropriate guide to interpreting
the meaning of traffic control devices, such as pavement markings, used on public
highways within our state. The complete MUTCD is available online at
https://mutcd.fhwa.dot.gov/pdfs/2009r1r2/mutcd2009r1r2edition.pdf.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Nos. 35002-9-III; 35003-7-III
State v. Brooks
6
MUTCD, § 1A.13(03)(98), at 15. Although a neutral area may be designated either by
a wide or double solid white channelizing line (MUTCD, §§ 1A.13(03)(29), at
12, 1A.13(03)(124), at 17), the two options carry no substantive significance. Like a
double white line, a solid white line can serve as an indicator that crossing is prohibited.
MUTCD, § 3A.06(01)(B) at 348.4 The whole point of a neutral area is to exclude
vehicles and promote orderly and efficient traffic flow. MUTCD, §§ 3B.05(06), at
370, 3I.02(02), at 430.
Ms. Brooks claims the neutral area meets the first triggering roadway definition—
improvement for vehicular travel—because the area is paved. We disagree. Although the
neutral area is an improved piece of land, it is not improved for purposes of vehicular
travel. As noted, the purpose of the neutral area is to provide a safe space between
vehicles. The MUTCD contemplates using a variety of improvements to alert drivers
to the presence of the neutral area. At the very least, the improvements must include
pavement and solid white lines. MUTCD, §§ 1A.13(03)(29), at 12, 1A.13(03)(124),
at 17. But additional options may also be used, such as internal crosshatching, reflective
4 A solid white line indicates crossing is discouraged, rather than prohibited, when
used as a lane line marking. MUTCD, §§ 3B.04(20), at 362, 3B.05, at 370. However, the
lines demarking a neutral area are channelizing lines, not lane lines. MUTCD,
§ 1A.13(03)(124), at 17. Channelizing lines designate the presence of an island, not a
lane of travel. MUTCD, § 1A.13(03)(29), at 12.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Nos. 35002-9-III; 35003-7-III
State v. Brooks
7
marks, or rumble strips. MUTCD, § 3B.05(10), at 371, ch. 3I, at 430-31. These
improvements do not exist for the purpose of facilitating travel. Quite the opposite. The
purpose of a marked and improved neutral area is to make drivers aware of the buffer
zone and keep vehicles out so traffic can merge or exit safely and efficiently.
Pavement is not, in and of itself, a sufficient indicator that an area has been
improved for vehicular travel. In the context of highway construction, pavement can
serve a variety of purposes. In addition to allowing for heightened visibility of traffic
control markings, pavement can help with drainage and structural integrity. While paving
constitutes an improvement to the natural landscape, it is not necessarily an improvement
for purposes of vehicular travel. Because a highway’s paved neutral area does not
amount to an improvement for purposes of vehicular travel, the mere existence of
pavement does not qualify the area as a roadway.
With respect to the third triggering definition of a roadway—regular use—there is
no evidence vehicles regularly violate the intended purposes of neutral areas and use the
space for vehicular travel. Unlike a highway shoulder, which can provide a safe passage
for small vehicles such as bicycles, the neutral area is not regularly amenable to safe
vehicular travel. See Clerk’s Papers at 59 (noting safety hazards of crossing the neutral
area). Some neutral areas may be used for toll collection or pedestrian refuge. MUTCD,
§ 1A.13(03)(98), at 15. But we find no indication of any regular, acceptable use of
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Nos. 35002-9-111; 35003-7-111
State v. Brooks
neutral areas by vehicles involved in travel.
Because the neutral area is neither designed, improved, nor regularly used for
vehicular travel, it does not meet any of the three triggering definitions of a roadway.
Our inquiry, therefore, ends here. We need not address whether the neutral area should
be excluded as a shoulder or whether the rule of lenity is applicable in the context of
Washington's traffic code.
CONCLUSION
In crossing over the neutral area between Route 97 and Route 2, Ms. Brooks failed
to maintain her vehicle wheels on an area of the highway meeting the statutory definition
of a roadway. A vehicle stop was therefore permitted under Washington's wheels off
roadway statute, RCW 46.61.670.
The superior court's order on appeal from the district court is reversed.
Pennell, J. ·@
I CONCUR:
Siddoway, J.
8
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35002-9-III
(consolidated with
No. 35003-7-III
L AWRENCE -B ERREY , A.C.J. (concurring) — I agree with the majority that the
trooper had reasonable suspicion to stop Ms. Brooks. But I disagree with the majority
that driving in the middle of the roadway amounts to “driving with wheels off roadway.”
I therefore concur.
A. 	O UR GRANT OF REVIEW INCLUDES WHETHER CROSSING THE NEUTRAL AREA
VIOLATES RCW 46.61.050
The majority asserts that we granted discretionary review of only two issues. I
disagree.
The State sought discretionary review of five issues. The first was, “Did the
superior court err as a matter of law when it decided that crossing [the neutral area] does
not violate RCW 46.61.050 (failure to obey traffic control device)?” Mot. for Discr.
Review at 1.
Our commissioner issued a written ruling. The ruling notes that the superior court
determined that Ms. Brooks did not violate either RCW 46.61.050 (failure to obey traffic
control devices) or RCW 46.61.670 (driving with wheels off roadway). The ruling then
discusses the ambiguity of whether the neutral area is a shoulder and, therefore, excluded
from the definition of “roadway,” and whether the rule of lenity applies to resolve this
ambiguity in favor of Ms. Brooks. After concluding that the ambiguity and the
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35002-9-III; No. 35003-7-III
State v. Brooks - concurring
2
application of the rule of lenity are issues of public importance, the ruling states:
“Accordingly, IT IS ORDERED . . . the State’s motion for discretionary review is
granted.” Commissioner’s Ruling, State v. Brooks, No. 35002-9-III, at 4 (Wash. Ct. App.
Mar. 7, 2017). There is no language within the order that limits the scope of review to
only two issues.
The State briefed all five issues contained within its motion for discretionary
review. Ms. Brooks took the position in her responsive brief that discretionary review
was limited to two issues. Nevertheless, she responded to each of the five issues. During
oral argument, this panel asked questions concerning RCW 46.61.050, and both parties
answered our questions. There is no reason to limit our review to only two issues when
our commissioner’s order did not. It is therefore appropriate to review whether crossing
the neutral area violates RCW 46.61.050.
B. 	C ROSSING THE WIDE SOLID LINES THAT BORDER THE NEUTRAL AREA VIOLATES
RCW 46.61.050
The superior court analyzed the 2009 Manual on Uniform Traffic Control Devices
for Streets and Highways (MUTCD) and concluded that crossing the wide solid lines was
discouraged rather than prohibited. I disagree.
RCW 46.61.050(1) requires drivers, bicyclists, and pedestrians to obey traffic
control devices. RCW 46.04.611 defines “traffic-control devices” as “all signs, signals,
markings and devices . . . placed or erected . . . for the purpose of regulating, warning or
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35002-9-III; No. 35003-7-III
State v. Brooks - concurring
3
guiding traffic.” Here, the white channelizing lines crossed by Ms. Brooks were wide
solid lines. Such markings constitute traffic control devices.
The MUTCD sets forth the functions of longitudinal markings. F ED . H IGHWAY
A DMIN ., U.S. D EP ’T OF T RANSP ., MANUAL ON U NIFORM T RAFFIC CONTROL D EVICES FOR
STREETS AND H IGHWAYS (2009 ed., rev. May 2012). According to section 3A.06.01(B)
of the MUTCD, “A solid line discourages or prohibits crossing (depending on the
specific application).” Just below that section, section 3A.06.03 clarifies, “The width of
the line indicates the degree of emphasis.” For this reason, crossing a wide solid line is
prohibited.
C. 	D RIVING THROUGH THE NEUTRAL AREA IS NOT DRIVING WITH WHEELS OFF
ROADWAY
RCW 46.04.500 defines “roadway” as “that portion of a highway improved,
designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder
even though such sidewalk or shoulder is used by persons riding bicycles.” The majority
acknowledges that the paved neutral area is an improved area of the highway, but
concludes that the area is not improved for vehicular travel. The majority concludes that
the neutral area is not improved for vehicular travel because the purpose of the neutral
area “is to make drivers aware of the buffer zone and keep vehicles out . . . .” Majority at
7.
Drivers are made aware of the buffer zone and to keep vehicles out because the
buffer zone is bounded by wide solid lines instead of, for instance, narrow broken lines.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 35002-9-III; No. 35003-7-III
State v. Brooks - concurring
Narrow broken lines would permit vehicles to cross through the neutral area. Because it
is the longitudinal markings that tell drivers to keep out of the buffer zone, the statute that
controls our analysis is RCW 46.61.050(1) (failure to obey traffic control devices), not
RCW 46.61.670 (driving with wheels off roadway).
But because the majority reaches the correct result, I concur.
Lawrence-Berre y, A.C.J.
4
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.