Appeal from Walla Walla Superior Court. Docket No: 12-1-00145-3. Date filed: 07/30/2012. Judge signing: Honorable Marshall Scott Wolfram.
Dennis W. Morgan, for appellant.
James L. Nagle, Prosecuting Attorney, and Teresa J. Chen, Deputy, for respondent.
AUTHOR: George B. Fearing, J. WE CONCUR: Laurel H. Siddoway, C.J., John Michael Antosz, J.P.T.
[181 Wn.App. 626] ¶ 1 RCW 70.24.340(1)(c) authorizes a local health department to conduct human immunodeficiency virus (HIV) testing and counseling of a defendant found guilty of a drug offense if the court determines that the " related drug offense is one associated with the use of [181 Wn.App. 627] hypodermic needles." Heather Mercado claims the trial court erred when ordering her to submit to HIV testing because the court did not determine that she used a hypodermic needle to ingest the methamphetamine for which she was convicted of possessing. The State of Washington argues that the trial court need not find that the defendant actually used a hypodermic needle at the time of the crime as long as the drug ingested by the defendant is sometimes ingested by others with a hypodermic needle. Because the statute is ambiguous, we spend time deconstructing and interpreting the language of the statute. We agree with Mercado. We vacate the trial court's order for HIV testing and remand for further proceedings to determine if Heather Mercado's possession of methamphetamine on May 10, 2012, entailed use of a hypodermic needle.
¶ 2 On May 10, 2012, police executed an arrest warrant for Joaquin Jaimes at an apartment in Walla Walla. Through an apartment window, police saw Heather Mercado preparing to smoke methamphetamine from a pipe. Police obtained a second warrant to search the apartment. Inside the apartment, police found Mercado's glass pipe, a " baggie" containing a golf ball sized amount of methamphetamine, and a black leather bag. Inside the black leather bag, police found a handgun, digital scales, and white T-shirts. One of the shirts appeared to have blood thereon.
¶ 3 The State of Washington charged Heather Mercado with possession of a controlled substance and use of drug paraphernalia. Mercado pled guilty to possession of a controlled substance in violation of RCW 69.50.4013(1) in exchange for the State dismissing the drug paraphernalia [181 Wn.App. 628] charge and recommending a sentence of 30 days converted to community service.
¶ 4 Heather Mercado signed a " Statement of Defendant on Plea of Guilty." Clerk's Papers (CP) at 12. The State claims that Mercado's counsel prepared the statement, since the statement contains the name and address of defense counsel in the lower right margin. Someone crossed out most " [n]otification" paragraphs as inapplicable to Mercado but checked paragraph 6(s) as applying. CP at 15. That paragraph reads, " If this crime involves prostitution, or a drug offense associated with hypodermic needles, I will be required to undergo testing for human immunodeficiency (HIV/AIDS) virus." CP at 16. The paragraph repeats language from RCW 70.24.340(1)(c).
¶ 5 At Heather Mercado's change of plea hearing on July 16, 2012, the trial court asked Mercado whether she had read her plea statement before signing it and whether she understood the statement. Mercado answered yes to both questions. The trial court explained:
THE COURT: Because this is a felony offense, a drug offense, you will lose your right to own, use or possess a firearm. You may not exercise that right unless it is restored to you by a court of competent jurisdiction.
You will lose your right to vote.
If you are receiving public assistance and sentenced to jail time, that public assistance may be suspended.
You will be required to provide a biological sample for [deoxyribonucleic acid] DNA identification analysis, and pay a $100 collection fee.
You will be required to be tested for the [acquired immune deficiency syndrome] AIDS virus .
If it is determined this charge is a result of a drug or alcohol problem, you may be required to participate in a treatment program as ...