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State v. Crediford

December 12, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
GREGORY CREDIFORD, PETITIONER.



Appeal from Superior Court, Whatcom County; 94-1-00506-8. Honorable Michael F. Moynihan, Judge. Judgment Date: 7-21-94.

Authored by Gerry L. Alexander. Concurring: James M. Dolliver, Charles Z. Smith, Richard P. Guy, Richard B. Sanders, Charles W. Johnson, Barbara A. Madsen. Dissenting: Barbara Durham, Philip A. Talmadge

The opinion of the court was delivered by: Alexander

En Banc

ALEXANDER, J. -- Gregory K. Crediford appeals his conviction on a charge of driving under the influence of intoxicating liquor. He challenges the constitutionality of the version of the driving under the influence statute that was in effect at the time he was cited. We reverse his conviction, holding that section (3) of that statute, which effectively imposes upon a defendant the burden of disproving an element of the offense by a preponderance of the evidence, violates Crediford's right to due process.

In the fall of 1993, Crediford was charged in Whatcom County District Court with driving a motor vehicle while under the influence of intoxicants, in violation of RCW 46.61.502. Before trial, Crediford challenged the constitutionality of the statute and moved to dismiss the charge, or in the alternative, to suppress the results of an alcohol concentration test that had been administered to Crediford by a Washington State Patrol trooper. The trial court denied his motions. The case then proceeded to a bench trial on stipulated facts, which are set forth in full, as follows:

(1) On October 21, 1993, defendant Gregory Crediford operated a motor vehicle in Whatcom County, Washington.

(2) Washington State Patrol Trooper Kenneth VanKooten had probable cause to arrest Crediford for driving while under the influence of alcohol.

(3) At 5:15 a.m., within two hours of the defendant's operation of a motor vehicle, the defendant had .16 percent by weight of alcohol in his blood as accurately analyzed in compliance with the laws of the State of Washington. Br. of Resp't at App. B. Based solely on these facts, the trial court found Crediford guilty of the charged offense.

Crediford appealed his conviction to the Whatcom County Superior Court, which affirmed. He then filed a motion in the Court of Appeals, Division One, for discretionary review of the superior court's decision. The Court of Appeals certified the case to this court, and we accepted review.

I

Crediford first contends that the Legislature exceeded the police power of the State in enacting RCW 46.61.502. In that regard, he cites article I, section 1 of the Washington Constitution, which provides that "all political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights." We have previously held that, "pursuant to [this provision,] the State Legislature may prescribe laws to promote the health, peace, safety, and general welfare of the people of Washington." State v. Brayman, 110 Wash. 2d 183, 192-93, 751 P.2d 294 (1988).

"A legislative enactment is presumed constitutional and the party challenging it bears the burden of proving it unconstitutional beyond a reasonable doubt." Brayman, 110 Wash. 2d at 193. A party asserting that a statute exceeds the State's police power must overcome the presumption that "it (1) tends to correct some evil or promote some interest of the State, and (2) bears a reasonable and substantial relationship to accomplishing its purpose." Brayman, 110 Wash. 2d at 193 (citing State v. Conifer Enters., Inc., 82 Wash. 2d 94, 96-97, 508 P.2d 149 (1973)).

At the time of Crediford's conviction, the challenged statute read, in relevant part, as follows:

(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state:

(a) And the person has 0.10 grams or more of alcohol per two hundred ten liters of breath within two hours after driving, as shown by analysis of the person's breath made under RCW

46.61.506; or (b) And the person has 0.10 percent or more by weight of alcohol in the person's blood within two hours after driving, as shown by analysis of the person's blood made under RCW

46.61.506[.] Former RCW 46.61.502 (effective July 25, 1993 through June 30, 1994). *fn1 In Crediford's view, RCW 46.61.502(1)(b) "does not bear a reasonable and substantial relationship to accomplishing its legitimate purpose because it punishes otherwise lawful behavior." Appellant's Opening Br. at 17.

As he did on appeal to the Whatcom County Superior Court, Crediford points to four scientific writings that discuss factors that may, according to the authors, inhibit the accurate measurement of the amount of alcohol in a person's blood. *fn2 He contends that because of these inherent difficulties, it is improbable that an alcohol concentration test administered within two hours after a person has been driving an automobile accurately indicates the amount of alcohol the driver had in his or her blood at the time of driving. Consequently, Crediford asserts that the challenged statute may punish persons whose blood alcohol concentration was less than 0.10 percent when they were driving. Such a law, he argues, "casts so wide a net in its attempt to criminalize driving while under the influence" that it "goes far beyond the means necessary to protect our streets . . . drawing in innocent persons and criminalizing behavior not generally deemed criminal." Appellant's Opening Br. at 18, 17; see Appellant's Reply Br. at 9.

Crediford concedes, however, that it is well-recognized that the consumption of alcohol has an effect on a driver's ability to drive, and that the Legislature has a "substantial state interest in reducing the risk posed by intoxicated drivers." He notes also that this court has previously held that "laws which limit the consumption of alcohol by operators of motor vehicles are clearly within the province of the Legislature." Appellant's Opening Br. at 17 (citing State v. Franco, 96 Wash. 2d 816, 824, 639 P.2d 1320 (1982)).

With the aforementioned principles and Crediford's concession in mind, it seems clear to us that the "evil" that the Legislature was intending to correct by enacting RCW 46.61.502(1) is "driving while under the influence of intoxicating liquor or any drug." (Emphasis added). Our Conclusion that this was the Legislature's intent is buttressed by the fact that the statute containing the so-called "two-hour rule" is part of the motor vehicle code, is entitled "Driving under the influence," and contains a provision, which will be discussed at length below, providing an affirmative defense to a defendant who shows that he or she consumed a sufficient quantity of alcohol after driving so as to cause the alcohol concentration test to register 0.10 percent or greater. That being its intent, and because the Legislature is vested with "'broad discretion . . . to determine what the public interest demands under particular circumstances, and what measures are necessary to secure and protect the same,'" Brayman, 110 Wash. 2d at 193 (quoting Reesman v. State, 74 Wash. 2d 646, 650, 445 P.2d 1004 (1968)), it was not irrational for the Legislature to attempt to accomplish its purpose by penalizing the excessive consumption of intoxicants associated with the operation of a motor vehicle. We are satisfied, therefore, that it was the Legislature's prerogative to determine that there is a relevant relationship between a driver's alcohol concentration of 0.10 percent or greater, as detected by an analysis of that person's breath or blood within two hours of driving, and the ability of that driver to have safely operated a motor vehicle within the ...


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