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State v. Thibert

Court of Appeals of Washington, Division 3

April 26, 2018

STATE OF WASHINGTON, Respondent,
v.
STEVEN MARTIN THIBERT, Appellant.

          SIDDOWAY, J.

         We granted discretionary review to construe provisions of the rules of the road, chapter 46.61 RCW, to determine when a driver may travel continuously in the left lane of a multilane roadway without thereby committing a traffic infraction.

         The State construes RCW 46.61.100 to provide that driving continuously in the left lane is a traffic infraction except in four circumstances, all transient, identified in RCW 46.61.100(2). Additionally, even when one of the four circumstances exist, the State construes the rules as making it an infraction to travel in the left lane if it will impede the flow of traffic. Steven Thibert argues that traveling continuously in the left lane is a traffic infraction only when it impedes the flow of traffic.

         The State's construction of relevant, unambiguous provisions of chapter 46.61 RCW is correct. Since Mr. Thibert was stopped lawfully for traveling continuously in the left lane, his marijuana DUI[1] conviction following a stipulated facts trial is affirmed.

         FACTS AND PROCEDURAL BACKGROUND

         Deputy Justin Gerry was on routine patrol one morning in July 2013 on westbound Interstate 82 in Benton County. He observed a silver Chevrolet Impala in the left lane pass a vehicle in the right lane, traveling faster than the posted 70 miles per hour speed limit. The Impala continued to travel in the left lane long after passing the vehicle in the right lane, even though no other vehicles were traveling in the unobstructed right lane. The deputy initiated a traffic stop not for the car's speed, but for a violation of RCW 46.61.100(2), captioned "Keep right except when passing, etc."

         On approaching the vehicle, which was being driven by Mr. Thibert, Deputy Gerry smelled the odor of fresh marijuana. What looked like a smoking device was hanging from Mr. Thibert's neck. Mr. Thibert told the deputy he was a medical marijuana patient and used the smoking device to smoke marijuana oil. Deputy Gerry noted that Mr. Thibert had difficulty finishing his sentences and that he "would sometimes stop speaking and just giggle." Clerk's Papers (CP) at 34.

         Mr. Thibert agreed to perform field sobriety tests. Based on Mr. Thibert's performance, Deputy Gerry concluded he was under the influence of marijuana and could not safely operate a motor vehicle. He placed Mr. Thibert under arrest and transported him to the hospital for a blood draw. THC[2] was present in Mr. Thibert's blood at 55 nanograms. He was charged with driving a motor vehicle while under the influence of marijuana.

         Mr. Thibert moved on multiple grounds to suppress evidence obtained as a result of the traffic stop and events that followed. The district court denied the motion. It found among other facts that Mr. Thibert's "remaining in the left lane, when one could lawfully and safely return to the right lane[, ] is an infraction and provided Deputy Gerry [probable cause] to stop." CP at 42. The parties agreed to submit the case to the court for a determination of guilt on stipulated facts. The district court found Mr. Thibert guilty.

          Mr. Thibert appealed to the Benton County Superior Court, which affirmed the judgment, dismissed the appeal, and remanded the matter to the district court for sentencing.

         Mr. Thibert then sought discretionary review from this court. Discretionary review was granted by our commissioner on the issue of whether Mr. Thibert was stopped unlawfully because the fact that he drove in the left lane, without impeding traffic, did not establish reasonable suspicion for the stop. See Comm'r's Ruling, No. 33341-8-III (Wash.Ct.App. Apr. 12, 2017) at 1-2 & n.l.

         ANALYSIS

         A reasonable articulable suspicion of a traffic infraction, like a reasonable articulable suspicion of criminal activity, will support a warrantless traffic stop under article I, section 7 of the Washington Constitution. State v. Arreola, 176 Wn.2d 284, 292-93, 290 P.3d 983 (2012). At issue is whether RCW 46.61.100(2), on which Deputy Gerry relied in stopping Mr. Thibert, creates a traffic infraction. Mr. Thibert's argument proceeds from the theory that RCW 46.61.100 has one subsection, subsection (2), that addresses the "primary use" of the left lane of a multilane roadway and a different subsection, subsection (4), that identifies the only circumstance when traveling in the left lane is an infraction.

         We review statutory interpretation questions de novo. In re Del of Williams,147 Wn.2d 476, 486, 55 P.3d 597 (2002). "The court's paramount duty in statutory interpretation is to give effect to the legislature's intent." In re Pers. Restraint of Nichols, 120 Wn.App. 425, 431, 85 P.3d 955 (2004). The surest indication of legislative intent is the language enacted by the legislature, so if the meaning of a statute is plain on its face, this court " 'give[s] effect to that plain meaning.'" State v. Jacobs,154 Wn.2d 596, 600, 115 P.3d 281 (2005) (quoting Dep 't of Ecology v. Campbell & Gwinn, LLC,146 Wn.2d 1, 9, 43 P.3d 4 (2002)). Only if the statute is susceptible to more than one reasonable interpretation is it deemed ambiguous, in which case this court "may resort to ...


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