* Sukhjit Singh, Respondent V. Department Of Licensing, Appellant

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FILED
7/12/2018
Court of Appeals
Division 	I
State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
SUKHJITSINGH 	) 	~
) 	No. 75750-4-I
Respondent, 	)
) 	ORDER GRANTING MOTION 	~
v. 	) 	TO PUBLISH 	,~,
STATE OF WASHINGTON, 	) 	~ ~3ct1
DEPARTMENT OF LICENSING, 	) 	- ~
A~peIIant. 	)
The respondent, Sukhjit Singh, has filed a motion to publish herein. The
appellant, State of Washington, Department of Licensing, has filed a motion for
extension of time to file an answer to the motion until July 2,2018. On June 20, 2018,
the State filed its answer. The court has taken the matters under consideration and has
determined that the appellant’s motion for extension of time to file an answer is granted,
and the respondent’s motion to publish is granted.
Now, therefore, it is hereby
ORDERED that the appellant’s motion for extension of time to file an answer is
granted; and, it is further
ORDERED that the respondent’s motion to publish the opinion filed in the above
entitled matter on April 9, 2018, is granted. The opinion shall be published and printed
in the Washington Appellate Reports.
FORTHECOLIRT:
I)
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flLFD
CDU~(~ OF APPEALS Of
ATE OF WASHINGTO~J
ZOIBAPR—9 	AM 9:08
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SUKHJIT SINGH, 	)
) 	No. 75750-4-I
Respondent, )
) 	DIVISION ONE
v. 	)
) 	UNPUBLISHED OPINION
STATE OF WASHINGTON, )
DEPARTMENT OF LICENSING, )
)
A~eIIant. ) 	FILED: April 9, 2018
TRICKEY, A.C.J. — 	Sukhjit Singh appealed the Washington State
Department of Licensing’s (Department) suspension of his driver’s license
following arrest for driving under the influence of alcohol. The King County
Superior Court overturned the suspension because of insufficient evidence of
compliance with the statutory requirements for blood sample collection and testing.
A commissioner of this court granted discretionary review as an issue of public
interest. We agree that the Department’s evidence failed to prove compliance with
the statutory requirements and affirm the superior court’s decision.
FACTS
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
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No. 75750-4-I /2
test, the officer decided to forego the breath testing and obtained a search warrant
for a blood sample to test for alcohol or drugs.
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.
Wehner’s certification stipulated that she performed all the testing, and
“technically reviewed all relevant pages of testing documentation in the case
record. The tests were administered according to methods approved by the state
toxicologist pursuant to [Washington Administrative Code (WAC)] 448-14-010, -
020, -030 and/or RCW 46.61 .506(3).”l Wehner’s report also identified the lot
numbers of the test tubes used to collect and store Singh’s blood.
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
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.
At Singh’s license revocation hearing, the Department offered as evidence
1 	Certified Appeal Board Record at 3.
2 The legal limit is 0.08 grams per 100 milliliters. RCW 46.20.308(5).
2
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No. 75750-4-1/3
two separate documents: Wehner’s certification of the testing process and a
“CERTIFICATE OF COMPLIANCE.”3 The company that manufactured 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.
Singh argued that the certificate of compliance should be excluded because
the document was notarized rather than signed under penalty of perjury. The
hearing examiner admitted Wehner’s certification of the testing process but
excluded the certificate of compliance. The Department did not submit other
evidence pertaining to Singh’s blood sample and testing.
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.
Singh appealed the hearing examiner’s decision to King County Superior
Court. The superior court ruled that the hearing examiner’s conclusion that the
blood testing met all statutory requirements was not supported by substantial
evidence. The superior court determined that Wehner’s conclusory declaration
failed to prove compliance with all statutory requirements for blood sample
~ Clerk’s Papers at 42.
3
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No. 75750-4-I /4
collection and testing. The superior court stated, “I truly think that she talks about
tests, and 	I just think [that] 	I would be intellectually dishonest to say the testing
includes a finding that the enzyme sample was appropriate and the anticoagulant
was present with the—which really relates to the sample itself.”4 The superior
court concluded that the hearing examiner’s reliance on this evidence to prove
compliance was an error of law and reversed the Department’s suspension of
Singh’s license.
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
ANALYSIS
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
~ Report of Proceedings (Aug. 5, 2016) at 27.
5Singh contends that the Department may not argue that the superior court improperly
reweighed evidence because the commissioner rejected this argument and did not grant
discretionary review on this issue. Singh’s interpretation of the scope of discretionary
review is unsupported. Under RAP 2.3(e), an appellate court may specify the issues and
limit the scope of discretionary review. See City of Bothell v. Barnhart, 156 Wn. App. 531,
538 n.2, 234 P.3d 264 (2010); Johnson v. Recreational Equip., Inc., 159 Wn. App. 939,
959 n.7, 247 P.3d 18 (2011). But Singh has not cited any case that establishes an
appellate court’s discretion to limit the arguments that the parties may raise on review.
See RAP 10.3(a)(6). Therefore, we will consider the Department’s arguments on appeal.
4
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No. 75750-4-I I 5
compliance with the WAC’s analytical testing procedures is not evidence of
compliance with the mandatory sample preservation requirements.
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 Wn.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 Wn.2d at 525. Washington’s
implied consent statute also governs judicial review of license suspension
proceedings. RCW 46.20.308.
Under the implied consent statute, evidence is subject to the requirements
of RCW 46.61.506. Cannon v. Dep’t of Licensing, 147 Wn.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.
One element of blood alcohol testing is sample collection and preservation,
which requires:
(a) A chemically clean dry container consistent with the size of the
sample with an inert leak-proof stopper will be used.
(b) Blood samples for alcohol analysis must be preserved with an
anticoagulant and an enzyme poison sufficient in amount to prevent
clotting and stabilize the alcohol concentration. Suitable
preservatives and anticoagulants include the combination of sodium
fluoride and potassium oxalate.
5
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No. 75750-4-1/6
WAC 448-14-020(3)(a), (b). These requirements ensure that the blood sample is
properly preserved for testing. State v. Clark, 62 Wn. 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 Wn. App. 62, 69-70,
184 P.2d 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 Wn. App. 651, 653, 910 P.2d 552 (1996);
Brown, 145 Wn. App. at 71-72.
The Department’s evidence must demonstrate use of anticoagulants and
enzyme poison through certification or testimony. Brown, 145 Wn. App. at 71-72;
Clark, 62 Wn. App. at 271. Washington courts have consistently required clear
evidence of proper blood sample preservation in addition to compliance with the
analytical testing procedures, and have overturned criminal convictions when the
evidence failed to show compliance with WAC 448-14-020(3). See, e.g., State v.
Hultenschmidt, 125 Wn. App. 259, 266, 102 P.3d 192 (2004) (blood analysis was
not valid without evidence that enzyme poison was in the sample tube despite
prima fade evidence that the sample was free from adulteration); State v. Bosio,
lO7Wn. App. 462,468,27 P.3d 636 (2001) (police officer and nurse testified about
the presence of anticoagulant in the bottom of the sample vial but no evidence
established use of enzyme poison); Garrett, 80 Wn. App. at 653 (blood analysis
6
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No. 75750-4-I /7
was not valid where sample vial did not contain anticoagulant despite evidence
that the sample was free from adulteration).6
We review the Department’s administrative decision from the same position
as the superior court and in the same manner as an appeal from a decision of a
court of limited jurisdiction. Clement v. Dep’t of Licensing, 109 Wn. App. 371, 374,
35 P.3d 1171 (2001). Review is limited to a determination of whether the
Department committed any errors of law, whether substantial evidence supports
the superior court’s findings, and whether those findings support the conclusions
of law. RCW 46.20.308(8); Dep’t of Licensing v. Sheeks, 47 Wn. App. 65, 68-69,
734 P.2d 24(1987).
Substantial evidence is sufficient to persuade a fair-minded person of the
truth of the stated premise. Sheeks, 47 Wn. App. at 69. 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 Wn. App. at 374 n.6. A reviewing court
must be “careful to do no more than search for the presence of evidence and not
to weigh it or evaluate credibility.” Sheeks, 47 Wn. App. at 69.
At Singh’s license revocation hearing, the Department offered the certificate
of compliance and Wehner’s report to establish a prima facie case of compliance
6 The Department claims that these criminal cases are inapplicable to administrative
license revocation proceedings with lower evidentiary admission standards and standards
of proof. While civil license proceedings have a lower burden of proof, the factual findings
must be supported by substantial evidence and the law must be applied correctly to the
facts. Ingram, 162 Wn.2d at 517-22. The lower standards of admissibility in the license
revocation proceeding does not relieve the Department of the burden to provide sufficient
evidence of compliance with statutory requirements.
7
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No. 75750-4-I I 8
with WAC 448-14-020. The hearing examiner did not admit the certificate of
compliance describing the blood sample collection tubes. The Department offered
no other evidence to establish that the collection tubes were chemically clean and
contained enzyme poison and anticoagulants as required by WAC 448-14-
020(3)(a), (b). Without evidence that the collection tubes met the WAC
requirements, the Department did not establish a prima facie case that
preservation of Singh’s blood complied with the statutory requirements.
According to the Department, Wehner’s statement that she administered
the tests in accordance with WAC 448-14-010, -020, -030 and RCW 46.61 .506(3)
implies that she ensured that Singh’s blood sample was properly preserved in
compliance with the requirements of WAC 448-14-020(3). But Wehner’s report
refers only to the blood tests that she administered. She cannot certify the
performance of tasks that she did not perform herself. While her report lists the
numbers of the tubes used to collect Singh’s blood, Wehner did not provide
information about the contents of those tubes. Therefore, Wehner’s report lacks
the crucial information about the presence of anticoagulants and enzyme poison
required to prove compliance with WAC 448-14-020(3).
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 Wn.2d
at 59; RCW 46.61.506(3).
8
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No. 75750-4-I I 9
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).
The hearing examiner’s conclusion that the Department produced prima
facie evidence of compliance with the WAC was an error of law. Therefore, we
conclude that the superior court correctly reversed the Department’s suspension
of Singh’s license.
Affirmed.
WE CONCUR:
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