Mark Ludvigsen v. City of Seattle

In 2002, Mark Ludvigsen was arrested on
suspicion of driving while intoxicated. At that time, if the city of Seattle
(City) wanted to convict Ludvigsen under the "per se" prong of its former
driving while intoxicated ordinance,1 it had to prove Ludvigsen failed a valid

breath test. The breath testing machine compares the amount of alcohol
vapor in a known sample with the alcohol vapor in a breath sample at a
known temperature. In 2002, to establish that the test was valid, the
government had to prove that the test machine's thermometer had been
certified by a thermometer traceable to National Institute of Standards and
Testing (NIST) standards.2 Because of a 2004 amendment, the government
no longer obligates itself to prove that the test thermometer is certified.3

With respect to the per se prong of the driving under the influence (DUI)
statute, RCW 46.61.502, the change is more than a mere change in what
evidence the jury will or will not hear; it reduces the quantum of evidence
necessary to establish a prima facie case that overcomes the presumption of
innocence. We hold retroactive application of the amendment violates the ex
post facto clause of the U.S. Const. art. I, § 10, and reverse.

I
Ludvigsen submitted to a breath test on February 5, 2002. He
registered a 0.23 reading on the breath test and was charged with driving
while intoxicated (DWI) under former Seattle Municipal Code (SMC)
11.56.020 (2002).4 However, Ludvigsen did not go to trial in 2002.

Ludvigsen skipped his arraignment and did not come to trial until 2005. By
the time of the evidentiary hearing to determine the admissibility of the breath
test, the relevant portions of the SMC and the WAC had changed. The
changes were likely precipitated by this court's decision in City of Seattle v.
Clark-Munoz, 152 Wn.2d 39, 93 P.3d 141 (2004).

In Clark-Munoz, we considered the admissibility of breath tests used in
Washington. In Washington, the state toxicologist promulgates standards for
determining the known temperature of an alcohol vapor sample and, at the
time of the Clark-Munoz decision, those standards required that the
thermometer used in the breath test be certified by using a reference
thermometer traceable to standards maintained by the NIST. See former
WAC 448-13-035 (1991). In the Clark-Munoz cases, the State had not
established at trial that the breath testing machines used on the defendants
were tested on thermometers traceable to standards maintained by NIST and
therefore could not establish that the thermometers were properly certified
under former WAC 448-13-035. Clark-Munoz, 152 Wn.2d at 48. Holding
that the State must abide by its own rules, especially when applied to vital
privileges like driving, we held the breath tests were inadmissible. Id. at 50.

Following our opinion in Clark-Munoz, the state toxicologist repealed
chapter 448-13 WAC and with it the requirement that certifying thermometers
comply with NIST standards. In its place is now chapter 448-16 WAC,
which does not require a certifying thermometer be traceable to NIST
standards.5

When Ludvigsen was arrested in 2002, the municipal code in effect
established that a driver was guilty of a DWI if "the person has . . . an alcohol
concentration of 0.08 or higher, as shown by analysis of the person's breath
or blood made under the provisions of this section." Former SMC
11.56.020(A)(1)(a) (2002) (emphasis added). The "provision," referenced in
subsection A, was found in subsection J, titled "Methods of Analysis." It
read:

Analysis of the person's blood or breath to be considered valid
under the provisions of this section shall have been performed
according to methods approved by the State Toxicologist and by
an individual possessing a valid permit issued by the State
Toxicologist for this purpose.

Former SMC 11.56.020(J) (2002). However, in 2004, paralleling what
happened at the state level, former SMC 11.56.020(A)(1)(a) (2002) was
changed and no longer requires that analysis of breath or blood establishing a
blood alcohol level of 0.08 comply with "the provisions of this section."
Instead, a blood alcohol level of 0.08 must be "shown by analysis of the
person's breath or blood made under RCW 46.61.506." SMC
11.56.020(A)(1)(a).

The amendment to the SMC may be largely illusory. Under both the
prior and amended versions, the relevant authority for purposes of breath test
analysis is the WAC. The amendment to the SMC merely altered the route to
the WAC. Compliance with RCW 46.61.506(3), required under the current
SMC, is the same as compliance with the provisions of the municipal code,
required under the 2002 SMC, to the extent both defer to the regulations
promulgated by the state toxicologist. RCW 46.61.506(3) and SMC
11.56.020(J) use the same language.6 In both cases, the "methods approved
by the State Toxicologist" govern. Compare former SMC
11.56.020(A)(1)(a) (2002) with SMC 11.56.020(A)(1)(a) (2004) and RCW
46.61.506(3). Thus, the relevant change for the purposes of Ludvigsen's
appeal was the state toxicologist's amendments to the WAC.

To summarize, in 2002, when Ludvigsen was arrested, voluntarily gave
his breath sample, and was charged with DWI,7 the law required that the test

machine be certified with a thermometer traceable to the NIST standards.

See former WAC 448-13-035. Following our opinion in Clark-Munoz, the
NIST traceability requirement was repealed. See chapter 448-16 WAC. In
2004, the law changed and a breath test that would have been invalid for lack
of a test thermometer traceable to the NIST, at least from that point on,
became valid under relevant statutes, regulations, and ordinances.
Both parties agree that Ludvigsen's 2002 breath test was substantially
similar to those considered in Clark-Munoz and that "traceablity to NIST
standards" could not be established. Had Ludvigsen's trial occurred in 2002,
that is to say subject to the regulations in force in 2002, the breath tests
should have been excluded as inadmissible for failing to comply with the
WAC regulations in effect at the time. See Clark-Munoz, 152 Wn.2d at 50.
However, Ludvigsen did not go to trial until 2005, after the statutory and
administrative meaning of a valid test changed.
At his 2005 trial, Ludvigsen moved to suppress the results of the breath
test he took in 2002. He argued the admissibility of the test was governed by
former chapter 448-13 WAC, the regulation in effect at the time of his arrest
and, thus, by Clark-Munoz. The preliminary and ultimately dispositive issue
before the trial judge was whether the 2002 or the current law would govern
the hearing. The answer, the parties argued and the judge agreed, depended
on whether the amendments affected procedural or substantive law.8 The trial
judge found that the amendments were substantive and not procedural and,
thus, not retroactive.

The City appealed to the superior court. The superior court reversed,
concluding that RCW 46.61.506(3) and chapter 448-16 WAC are procedural
in nature and therefore are presumed to apply retroactively. Ludvigsen
successfully moved for discretionary review, and pursuant to RAP 4.4, his
case was transferred to this court.

II

There are two initial questions. We must decide whether the
legislature intended the amendment to have retroactive effect. In re F.D.
Processing, 119 Wn.2d 452, 460, 832 P.2d 1303 (1992). We must also
decide whether retroactivity is even at issue. "'"A statute does not operate
'retrospectively' merely because it is applied in a case arising from conduct
antedating the statute's enactment . . . or upsets expectations based on prior
law."'" State v. T.K., 139 Wn.2d 320, 330, 987 P.2d 63 (1999) (quoting
Landgraf v. USI Film Prods., 511 U.S. 244, 269, 114 S. Ct. 1483, 128 L. Ed.
2d. 229 (1994) (quoting Republic Nat'l Bank v. United States, 506 U.S. 80,
100, 113 S. Ct. 554, 121 L. Ed. 2d 474 (1992))). A statute operates
prospectively "when the precipitating event for its application occurs after the
effective date of the statute." T.K., 139 Wn.2d at 329-30 (citing Aetna Life
Ins. Co. v. Wash. Life & Disability Ins. Guar. Ass'n, 83 Wn.2d 523, 535, 520
P.2d 162 (1974)). Both of these preliminary questions turn on the intent of
the legislature. Id at 329.

Ludvigsen does not challenge the superior court's statutory
interpretation. Instead, Ludvigsen argues the ex post facto clause prohibits
applying the 2004 amendments to a trial of his alleged 2002 crime. We
presume statutes are constitutional and review challenges to them de novo.
State v. Shultz, 138 Wn.2d 638, 642-43, 980 P.2d 1265 (1999) (citing State
ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm., 135 Wn.2d 618,
623, 957 P.2d 691 (1998)).

The United States Constitution declares that "[n]o State shall . . . pass
any . . . ex post facto law." U.S. Const. art. I, § 10. The Washington State
Constitution similarly declares that "[n]o . . . ex post facto law . . . shall ever
be passed." Const. art. I, § 23. These provisions employ the same
framework adopted from the 1798 case of Calder v. Bull, 3 U.S. (3 Dall.)
386, 1 L. Ed. 648 (1798). See State v. Edwards, 104 Wn.2d 63, 70-71, 701
P.2d 508 (1985) (citing Calder, 3 U.S. (3 Dall.) 386); see also State v.
Handran, 113 Wn.2d 11, 14, 775 P.2d 453 (1989). The United States
Ludvigsen (Mark) v. City of Seattle, No. 79974-1

Supreme Court has "repeatedly endorsed" the Calder framework. Carmell v.
Texas, 529 U.S. 513, 525, 120 S. Ct. 1620, 146 L. Ed. 2d 577 (2000)
(collecting cases). The Calder framework divides ex post facto laws into
four categories:

1st. Every law that makes an action done before the passing of
the law, and which was innocent when done, criminal; and
punishes such action. 2d. Every law that aggravates a crime, or
makes it greater than it was, when committed. 3d. Every law that
changes the punishment, and inflicts a greater punishment, than
the law annexed to the crime, when committed. 4th. Every law
that alters the legal rules of evidence, and receives less, or
different, testimony, than the law required at the time of the
commission of the offence, in order to convict the offender.

Calder, 3 U.S. (3 Dall.) at 390. The fourth category, Ludvigsen
argues, is at issue in this case. The United States Supreme Court in
Carmell explored this category in depth. There Justice Stevens
explained that the paradigmatic example of the fourth category was the
case of Sir John Fenwick. Carmell, 529 U.S. at 526. The case was
cited by Justice Chase, author of Calder, and by a leading scholar on
the English common law Richard Wooddeson, whose treatise Chase
relied on. Id. at 526, 522.

Sir John Fenwick conspired with a group of Jacobin loyalists who
sought to overthrow King William III of England. Id. at 526 (citing 9 Thomas
Macaulay, History of England 31-32 (1899)). Several members of this
conspiracy revealed the plan to King William who had the alleged plotters,
including Fenwick, arrested. Id. (citing 9 Macaulay, supra, at 122-25). Only
two witnesses had sufficient knowledge of Fenwick's involvement to testify
against him. Id. (citing 9 Macaulay, supra, at 170-71). At the time, by law a
British subject could not be convicted of high treason without two witnesses.
Id. at 526-27 (citing An Act for Regulateing of Tryals in Cases of Treason
and Misprision of Treason, 7 & 8 Will. III, ch. 3, § 2 (1695-1696), in 7
Statutes of the Realm 6 (reprint 1963)). Fenwick, or rather the blade of
Fenwick's agent, convinced one of the witnesses to flee to France and thus he
was not available to testify. Id. at 528 n.16 (citing 9 Macaulay, supra, at 194-
95).

The Crown was left with only one prosecution witness. The House of
Commons passed a law repealing the two-witness rule. Fenwick was
convicted and beheaded. Id. at 529 (citing 9 Macaulay, supra, at 214-27; An
Act to Attaint Sir John Fenwick Baronet of High Treason, 8 Will. III., ch. 4
(1696)). The new law, Chase and Wooddeson observed, exemplified the
fourth category of ex post facto laws. Id. at 526. The amended law altered
the required evidence necessary to convict Fenwick. The law did not invent
a new crime, nor enhance the punishment for an existing crime, but was
nevertheless an ex post facto law because it reduced the quantum of evidence
the State needed to present to sustain a conviction.

The United States Supreme Court found a modern example of the
fourth category in Carmell. Carmell sexually abused his stepdaughter for
many years. Carmell, 529 U.S. at 516. Carmell's criminal conduct occurred
when under Texas law a defendant could not be convicted of sexual assault
based solely on the victim's testimony, unless the victim reported the crime
within six months. Id. at 517 (quoting Tex. Crim. Proc. Code Ann., art.
38.07 (Vernon 1983)). However, a conviction could be based solely on such
a victim's testimony if the victim was under 14 years of age. In 4 of the 15
separate counts, the victim was both over 14 and silent for more than the
statutory six months. Id. at 519.

Between the offense and trial, the Texas legislature amended the
exception to the six month outcry rule, extending it to all victims under the
age of 18. Id. at 518. The only evidence against Carmell was the testimony
of the victim. Id. at 519. The trial court applied the more recent law
permitting Carmell's conviction based solely on the victim's testimony. Had
the court applied the former law, Carmell could not have been convicted
because the victim's testimony was legally insufficient to support a conviction
under the statute. Id. The Supreme Court held that the amendments could
not be applied to offenses committed before their effective date without
violating the ex post facto clause. Id. at 552. The Court observed that "the
circumstances of petitioner's case parallel those of Fenwick's case 300 years
earlier . . . Texas' retrospective application of the amendment . . . permitted
petitioner to be convicted with less than the previously required quantum of
evidence." Id. at 530-31.

In Ludvigsen's case, whether applying the post Clark-Munoz change to
the law violates the ex post facto clause depends largely on how the change
to the law is characterized. If it is characterized as a procedural change in the
admissibility of evidence, it does not violate the ex post facto clause. If it is
characterized as a substantive change in the amount of evidence necessary to
support a conviction, then it violates the ex post facto clause.

Ordinary rules of evidence are procedural and neutral. Though in some
cases the State may benefit from a change in evidence law, such changes are
not inherently beneficial to the State. But rules reducing the evidence
required to make a prima facie case are substantive and inherently
disadvantage the defendant by permitting a conviction based on less evidence
than was previously required. Carmell, 529 U.S. at 533 n.23 ("We do not
mean to say that every rule that has an effect on whether a defendant can be
convicted implicates the Ex Post Facto Clause. Ordinary rules of evidence,
for example, do not violate the Clause.").

The difference between "ordinary" rules of evidence and the alterations
in the rules of evidence that Justice Chase spoke of in his "4th category" is
their impact on the sufficiency of evidence necessary to convict. Justice
Stevens explained that "ordinary" rules of evidence do not implicate ex post
facto concerns because "they do not concern whether the admissible evidence
is sufficient to overcome the presumption [of innocence]." Id. Thus, the
issue is whether the WAC amendments changed ordinary rules of evidence or
changed the evidence necessary to convict Ludvigsen of a DWI.

In Clark-Munoz, we explained that a violation of RCW 46.61.5029
may be proved in two different ways: through the per se method, which
requires the State to show the defendant's blood alcohol level was at least
0.08 based upon a valid breath test within two hours after driving, or through
"other evidence," (typically testimony) that requires the State to prove that
the defendant was impaired by alcohol or drugs. Clark-Munoz, 152 Wn.2d at
44 (citing RCW 46.61.502; 13A Seth A. Fine & Douglas J. Ende,
Washington Practice: Criminal Law § 804, at 148 (2d ed. 1998)). The
general crime is DWI, but driving with a specified alcohol level, as proved by
a breath test, is per se under the influence. If the question before us was the
admissibility of some other evidence under the "other evidence" prong, it
would likely be procedural. But under the per se prong, the validity of the
breath test is a part of the prima facie case the government must prove.10 The
City redefined the meaning of a valid test and thereby changed the meaning of
the crime itself.11 In 2002, a person driving in the city of Seattle was guilty of
DWI if the person had "within two (2) hours after driving, an alcohol
concentration of 0.08 or higher, as shown by analysis of the person's breath
or blood made under the provisions of this section." Former SMC
11.56.020(A)(1)(a) (emphasis added). The "provisions of this section" lead
us directly to "methods approved by the state toxicologist." SMC
11.56.020(J). Those approved methods required that every breath testing
machine be tested with a thermometer traceable to NIST standards. See
former WAC 448-13-035.

In 2002, to prove a violation under subsection (A)(1)(a), the City was
required to show that the defendant drove a vehicle and, within two hours,
took a breath test showing a 0.08 alcohol level. To do this, the City had to
prove the test was on a valid breath testing machine. See Clark-Munoz, 152
Wn.2d at 44. To prove the test was valid, the City had to prove compliance
with "the provisions of this section," i.e., the methods approved by the state
toxicologist in the WAC. Former SMC 11.56.020(A)(1)(a), (J) (2002). The
subsequent change reduced the quantum of evidence to establish a prima facie
case and to overcome the presumption of innocence.

The City responds that even if applying amended procedures violates
the ex post facto clause, the breath test evidence is not conclusive, and that
the City and Ludvigsen may still debate before the jury the reliability of the
uncertified breath test. That is hardly solace to Ludvigsen and does not
remedy the ex post facto violation. Ludvigsen may argue to the jury that
breath tests are more reliable if certified, but such a case under the 2002 laws
would not have even gone to trial. He was entitled to a dismissal. Sir
Fenwick may have been able to argue that two witnesses are more reliable
than one, but the offense to the ex post facto clause derives from denying
Fenwick the dismissal the law demanded before the law was amended.
Ludvigsen was entitled to a dismissal because the City failed to overcome its
own requirement for evidence sufficient to convict. The City may not, after
the fact, change the requirement.

The City also responds that the amendments did no more than expand
the scope of admissible evidence. Relying on Hopt v. Territory of Utah, 110
U.S. 574, 589, 4 S. Ct. 202, 28 L. Ed. 262 (1884), the City suggests the
amendments are, quoting Hopt, akin to statutes that "simply enlarge the class
of persons who may be competent to testify in criminal cases." We disagree
with this characterization. While it is true the amendments govern the
admissibility of evidence, of greater significance is what they take away. See
City of Fircrest v. Jensen, 158 Wn.2d 384, 396-97, 143 P.3d 776 (2006)
(describing the effect of the amendments on the admissions procedure).
Before the amendments, defendants could not be prosecuted, as a matter of
law, based solely on evidence from a breath test that was not certified. Now
they can. See id. This is not a mere change in evidence law. The
amendments do not simply let more evidence in to trial; they change the
quantum of evidence necessary to support a conviction.

We conclude the application of the 2004 DWI amendments, redefining
a "valid" test, to Ludvigsen's 2002 criminal conduct violates the ex post facto
clause. The 2002 definition, found in former chapter 448-13 WAC, governs.
See Clark-Munoz, 152 Wn.2d at 48 (explaining operative effect of the
definition).12 Having reached this conclusion, we find it unnecessary to reach
the remainder of Ludvigsen's arguments.

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