                                                                                          FILED
                                                                                     CCURT 0F APPEALS


                                                                                 2013 AUP27 ,'; -    35



                                                                                     r




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                        DIVISION II

STATE OF WASHINGTON,                                                No. 42914 4 II
                                                                              - -


                               Respondent,

        V.



TERRY L. JACOB,                                             PUBLISHED IN PART OPINION


                               Appellant.

        HUNT, P. . —
               J    Terry L. Jacob appeals his jury conviction and sentence for felony driving

while under the influence (DUI),
                               former RCW          46. 1.2011). He argues that the trial
                                                   502(
                                                      6
                                                      6 ) (

court ( )
      1 miscalculated his offender score under, CW 9.
                                              R    e);
                                                   525( 4A.2)
                                                      2)( imposed the (
                                                      9     wrongly

statutory maximum confinement term plus a community custody term; and ( )
                                                                      3 wrongly excluded

testimony that he had used an asthma inhaler on the day of his arrest., The State asserts that the

Morales opinion' "force[s]" concede the first sentencing error (miscalculated offender
                         it to
score);
      the       State concedes the second   sentencing         exceeded statutory maximum).
                                                         error (                               We


reject the State's forced concession" of sentencing error based on Morales, adopt most ( ut not
                    "                                                                  b

all) of Division One's rationale in Morales, and accept the State's second concession of




State v. Martinez Morales, 168 Wn. App. 489, 278 P. d 668 (2012).
                                                  3
2
    Br.of   Resp't   at 13.
No. 42914 4 II
          - -



sentencing error based on the Supreme Court's superseding of the Brooks notation. We hold
that the trial court did not err in excluding the inhaler testimony, affirm Jacob's conviction,

vacate his sentence, and remand for recalculation of his offender score and resentencing.

                                            FACTS


        On October 3, 2011, Jacob consumed two or three alcoholic drinks between 5:7 PM and
                                                                                  1

6:2 PM at "Jimmy D' " Belfair and drove away. I Report of Proceedings (RP)at 169. A few
 0                s in

minutes later, three to five miles from Jimmy D' , Mason County Sheriff's Deputy Kelly
                                               s

LaFrance pulled over Jacob's vehicle. LaFrance learned that the vehicle was registered to Jacob,

whose license had been revoked and for whom there       was   an   outstanding   arrest warrant.   As


LaFrance approached, she smelled a strong odor of intoxicants coming from the partially opened

driver's window, asked Jacob to exit the car, and informed him that he had an outstanding arrest

warrant. She observed that his eyes were red and watery, his speech was slurred, and he smelled

of intoxicants.   She placed Jacob in her patrol car and called Deputy Duain Dugan to process

Jacob for a suspected DUI.

        Dugan asked Jacob if he (Jacob)would allow him ( ugan)to conduct field sobriety tests;
                                                       D

Jacob   agreed. Dugan administered a horizontal gaze nystagmus (HGN) test, which indicated

impairment. Dugan administered a finger dexterity test, which Jacob did not pass. Dugan also

administered a finger to nose test: Jacob missed touching the tip of his nose with his finger six
                       - -

out of seven tries.




3 In re Pers. Restraint of Brooks, 166 Wn. d 664, 674, 211 P. d 1023 (2009),
                                         2                  3              superseded by
State v. Boyd, 174 Wn. d 470, 473,275 P. d 321 (2012).
                     2                 3

                                                0)
No. 42914 4 II
          - -



         Dugan placed Jacob under arrest for DUI and gave him the implied consent warning

required   for   administering     a   breath test for the presence of alcohol. Jacob declined to take a


breath test.     After obtaining a blood draw search warrant, Dugan transported Jacob to the

hospital, where a technician drew Jacob's blood at approximately 10: 0 PM.
                                                                   2

         At trial, state toxicologist Justin Knoy testified that ( Jacob's blood had registered .10
                                                                 1)

g100ml blood alcohol concentration and (2)certain "medication[s] muscle relaxants or
 /                                                             like
sleep aids"as well as "different inhalants that some people may use for huffing, like gasoline or

Dust[- ] ' may affect the subject's eyes during the HGN test. I RP at 120. Knoy did not,
     Off


however, testify about the presence of any inhalants in Jacob's blood; nor did Jacob cross-

examine Knoy about this subject.

         Nevertheless, Jacob later sought to testify that, on the day of his arrest, he had used an

inhaler ... for COPD. "          II RP at 214. Jacob claimed that his use of an inhalant device brought

into question the accuracy of the blood test results on the day of his arrest; but (l) made no
                                                                                     he

offer of proof that he had used the type of muscle relaxants, sleep aids, or non -medicinal

inhalants "
          like gasoline or Dust[ Off,"
                                 - ] which Knoy had testified might affect the subject's eyes

during an HGN test; 2) offered no expert testimony about the potential effect on his blood
                    ( he

alcohol level of these substances in general or of his medicinal inhalant in particular, nor did he

seek to recall State expert witness Knoy to explore these issues. I RP at 120. The superior court


4
 A person is guilty of driving while under the influence of alcohol when he has a blood alcohol
concentration of 08 g100ml or higher. Former RCW 46. 1.
                 .    /                                a)
                                                       502(   1)(
                                                              6       2011).          (
5"
     Dust Off' is
          -         an   aerosol
                       product               used to clean computers.   Castaneda v. State, 292 Ga. pp.
                                                                                                  A
390, 392, 664 S. .
              2d 803 (2008).
               E

6 Chronic Obstructive Pulmonary Disease.

                                                         3
No. 42914 4 II
          - -



denied Jacob's request, ruling that his inhalant use was not relevant because there was no

evidence to establish that inhalant use affects a blood alcohol content reading.

         On December 2, 2011, a jury convicted Jacob of felony DUI under former RCW

46. 1.201 1) and first degree driving
502(
   6
   6 ) (   7                                     while license   suspended (DWLS). At   Jacob's


December 8 sentencing, the trial court calculated his offender score as nine under RCW

e),
525( 4A.based on eight of the nine offenses listed in the following criminal history, plus
9. 2)(
   9

one additional point for Jacob's having been on community custody when he committed the

present offense:

                          Conviction             Date of           Date of
                                                  Crime           Sentence
                    Felony DUI                   09
                                                 01/ 3/
                                                   0              09
                                                                  05/ 1/
                                                                    1
                    DWLS 1                       05
                                                 4/8/
                                                  1
                    DUI                          03
                                                 03/ 6/
                                                   0              03
                                                                  07/ 3/
                                                                    0
                    DUI                          01
                                                 01/ 1/
                                                   3              01
                                                                  06/ 5/
                                                                    0
                    DUI                          00
                                                 05/ 7/
                                                   1              01
                                                                  06/ 5/
                                                                    0
                    DUI                          99
                                                 11/ 9/
                                                   2              01
                                                                  06/ 5/
                                                                    0
                    DUI                          97
                                                 01/ 6/
                                                   2              97
                                                                  08/ 1/
                                                                    2
                    Felony Drug Charge           91
                                                 06/ 0/
                                                   1              93
                                                                  01/ 2/
                                                                    2
                     DUI                         88
                                                 08/ 9/
                                                   2              89
                                                                  06/ 5/
                                                                    0


The trial court included two offender score points under RCW 9.
                                                             e)(
                                                             525( 4A.for the
                                                                ii)
                                                                2)(
                                                                9

following two prior convictions, because they had occurred within ten years before Jacob's

present offense ( for which he had been arrested       on   October 3,   2011): one felony DUI,




7
    The pertinent portion of former RCW 46. 1.
                                         502( 6 provides:
                                              6 )
         It is a class C felony punishable under chapter 9. RCW, or chapter 13. 0_
                                                          94A                    4
         RCW if the person is a juvenile, if:
         a)The person has four or more prior offenses within ten years as defined in
         RCW 46. 1.
             5055.
               6



                                                 0
No. 42914 4 II
          - -



committed on January 3, 2009; and one non -felony DUI, committed on March 6, 2003. The
trial court did not, however, include an offender score point for Jacob's prior 2005 DWLS

conviction, denoted by a single asterisk in the above grid.

         The trial court then included six more offender points under RCW 9.
                                                                          e)(
                                                                          525( 4A.
                                                                             i)
                                                                             2)(
                                                                             9    for

the following six offenses that Jacob had committed more than ten years before the present

offense, and within five years since the last date of release from confinement or entry of

judgment and sentence: three points for three DUIs committed on January 31, 2001, May 17,

2000, and November 29, 1999; one point for a DUI committed on January 26, 1997; one point

for a drug conviction, committed on June 10, 1991 and one point for a DUI committed on
August 29, 1988.
         The trial court sentenced Jacob to 60 months of confinement for the present felony DUI

conviction and 364 days for the DWLS conviction; it also imposed a community custody term
of 12 months or the period of earned release, whichever was greater, such that Jacob's total


8
  Citing former RCW 46. 1.
                      c)
                      5055( 4)( Division One held: "For the purposes of this
                              1
                              6        2008),              (
statute, w] ten years' means that `the arrest for a prior offense occurred within ten years
         `[ ithin
        the arrest for the current offense. "' Morales, 168 Wn. App. at 495 (alteration in
before ...
original). The record before us on appeal does not include the arrest dates for Jacob's prior
offenses; thus, we use the dates of commission of these offenses instead.
9
    Jacob's January 22, 1993 drug conviction is also denoted by a single asterisk in the above grid.
10
   Whether the trial court properly included Jacob's 1989 DUI conviction (denoted by a double
asterisk in the above grid) in his offender score is in dispute in this appeal. This issue is also
pivotal in our adoption in part and rejection in part of Division One's rationale in Morales, based
on whether Jacob's January 22, 1993 drug conviction judgment and sentence can be used to
establish a timeline for determining whether he had been crime free for the requisite five year-
intervals under RCW 9.
                    e)(
                    525( 4A.
                       i).
                       2)(
                       9
11
     Jacob does not appeal his driving while license suspended conviction and sentence.

                                                   F
No. 42914 4 II
          - -



combined sentence would not exceed the statutory maximum of 60 months. Jacob appeals his

felony DUI conviction and sentence.

                                                  ANALYSIS

                                                                                            12
              FELONY DUI OFFENDER SCORE: MORALES                  AND   RCW   e)
                                                                              525( 4A.
                                                                              9. 2)(
                                                                                 9

         Jacob argues that the superior court erred in including his 1993 drug conviction and his

1989 DUI in calculating his felony DUI offender score, citing Morales. We agree that inclusion

of his 1993 drug and 1989 DUI convictions was improper. We adopt most, but not all, of the

corresponding Morales rationale; and we remand for resentencing.

         In Morales, Division One of our court strictly interpreted RCW 9.
                                                                        e)
                                                                        525( 4A.and held
                                                                           2)(
                                                                           9

that this statute specifies a limited class of prior offenses to be used in offender score calculations

for felony DUI sentences. Morales, 168 Wn. App. at 498. RCW 9.
                                                            e)
                                                            525( 4A.
                                                               2)(
                                                               9    provides:

            If the present conviction is felony driving while under the influence of
            intoxicating liquor or any drug ( RCW 46. 1. 502(   6)) prior
                                                                6                 .              .   .
            convictions offelony driving while under the influence of intoxicating
            liquor or any drug,felony physical control ofa vehicle while under the
            influence of intoxicating liquor or any drug [( CW 46. 1.
                                                          R    504(
                                                                  6))],
                                                                  6 and
            serious   traffic offenses 131
                                       [     shall be included in the offender score if.

                i) prior convictions were committed within five years since
                   The
            the last date of release from confinement ( including full time
                                                                        -
            residential treatment)or entry ofjudgment and sentence; or

12
     Morales cites former RCW 9.
                              525 2008). The legislature amended this statute in 2010
                               94A. (
and 2011. LAWS     OF   2010, ch. 274, § 403; LAWS          OF   2011, ch. 166, § 3. These amendments did
not alter the statute in any way relevant to this case or Morales; accordingly, we cite the current
version of the statute.

13
               9.1)((b) (
     Under former RCW
               a)
               030( 4A.
                    4
                    9       and      LAWS OF 2009, ch. 28, §4, recodified as RCW
44)(
9.a)
  94A030( and (b)), "
                 serious traffic offenses" include nonfelony DUI (former RCW
502 (
46. 1.2008)),
  6        nonfelony actual physical control while under the influence (former RCW
504 (
46. 1. 2008)),
     6          reckless driving ( former RCW 46. 1. 1990)), - run attended
                                               500 (
                                                 6            hit and -
vehicle ( CW 46. 2. comparable out ofstate convictions for these listed offenses.
        R    020(5 and
                 5 );                      - -



                                                        C
No. 42914 4 II
          - -




                   ii)  the prior convictions would be considered "prior offenses
               within ten years"as defined in RCW 46. 1.
                                                   5055.
                                                       6

Emphasis added). These subsection (ii) " offenses,"
                                     prior        however, do not include every crime;

rather, they    are   limited to the   following statutorily specified offenses: nonfelony DUI (RCW

502),
46. 1.nonfelonny physical control of vehicle while under the influence (RCW 46. 1.
  6                                                                         504),
                                                                              6

vehicular homicide (RCW 46. 1.vehicular assault (RCW 46. 1.negligent driving
                        520),
                          6                          522),
                                                       6

RCW 46. 1.reckless driving (RCW 46. 1. and reckless endangerment (RCW
    5249),
      6                         500),
                                  6

050);
9A. 6.these "prior offenses" also include deferred prosecutions and comparable out of-
  3                                                                                -

state convictions for these listed crimes. Former RCW 46. 1.
                                                      a)
                                                      5055( 4)(
                                                          1
                                                          6  2011).                                     (

       A. Subsection ( i) " [ormer RCW 46. 1.(
                     i prior f         5055 2011)]
                                         6       offenses within ten years"

         Division One turned first to subsection (2)( of RCW 9.
                                                  ii)
                                                   e)(       525 to determine (1)
                                                               94A.

which of Morales' prior convictions         qualified   as " prior   offenses ...   as defined in former RCW


5055 (
46. 1.2008)," ( )
  6        and 2 which of those "prior offenses"had occurred within ten years of his

current felony DUI conviction. Morales, 168 Wn. App. at 495. The court then determined that

Morales' offender score should include three points for three prior nonfelony DUI convictions

during this ten year period. Morales, 168 Wn. App. at 495; RCW 9.
                -                                              e)(
                                                               525( 4A.Adopting
                                                                  ii).
                                                                  2)(
                                                                  9

this part of Division One's Morales analysis, we hold that under subsection (ii) trial court
                                                                               the

erred in including Jacob's 1993 drug conviction in his offender score because this conviction did
                                                                                       14
not   occur   within ten years before his present 2011         felony   DUI conviction.




14
   We further note that Jacob's 1993 drug conviction was also not includable in his offender
score under RCW 9. c)
                   525( 4A.because, although it is a class C prior felony, it is not a sex
                           2)(
                           9
offense, an express prerequisite for offender score inclusion under this statutory subsection.

                                                         7
No. 42914 4 II
          - -



    B. Subsection ( ) "
                  i prior convictions"committed within five years " ince"release from
                                                                  s
                           confinement or entry.ofjudgment and sentence

       Turning to subsection (2)( of RCW 9. Division One next determined which
                              i)
                               e)(       525,
                                           94A.

prior offenses had occurred within five year intervals since the last date of release from.
                                        -

confinement or entry of judgment and sentence for a prior offense. Division One identified these

five year intervals as having accumulated during subsection (ii)' tenyear period immediately
     -                                                         s     -

preceding   the current offense. Morales, 168 Wn.      App. at 495 96, 498. Strictly interpreting
                                                                   -


RCW 9.
    e),
    525( 4A.Division One held that (1)only statutorily specified prior convictions
       2)(
       9

occurring during an RCW 9.
                        e)(
                        525( 4A.five year interval can count as offender score
                           i)
                           2)(
                           9         -

points for felony DUI sentences; and (2)the trial court erred in considering Morales' 1996

assault conviction, which occurred within such a fiveyear interval, because assault is not one of
                                                     -

the prior offense that RCW 9.
                           e)
                           525( 4A.includes for felony DUI offender score calculation
                              2)(
                              9

purposes. Morales, 168 Wn.App. at 497 500.
                                      -

                     1. Prior convictions that count as offender score points

       We find persuasive Division One's reasoning in determining the type of "prior

convictions" that are includable under subsection (i) felony DUI offender score purposes.
                                                    for

Thus, we adopt the first part of its Morales holding that under subsection (i)
                                                      —                      only RCW

525-
9. specified prior convictions count as offender score points for purposes of sentencing a
  94A.

defendant convicted of former RCW 46. 1.2008) felony DUI. Accordingly, we agree
                                  502(
                                     6
                                     6 ) (

with Jacob and hold that, like the improper inclusion of Morales' prior assault conviction in his

offender score, the trial court here similarly erred in including Jacob's 1993 drug conviction in

his offender score because drug convictions are not among the statutorily specified prior

convictions for offender   score   inclusion under subsection ( of RCW
                                                              i)         c).
                                                                         525( 4A.
                                                                         9. 2)(
                                                                            9
No. 42914 4 II
          - -



               2. Prior convictions that begin the running of the five year intervals
                                                                       -

       But we decline to adopt the second part of Division One's Morales rationale and holding,

which use these same statutorily specified prior convictions also to define the five- ear intervals
                                                                                    y

during which commission of these prior offenses are includable in a felony DUI offender score

under RCW 9.
          e)(
          525( 4A. Division One (1)focused on the legislature's use of the term
             i).
             2)(
             9

any crime" in RCW 9. )
                  525( 4A.subsections (b), and (d); (2)
                     2
                     9                   c),
                                           (      and  reasoned that, because

subsection (e)( of RCW 9. ) not similarly use the phrase "any crime,"
             i)        525( 4A. does
                          2
                          9                                         the

legislature must have intended that only the crimes specified in RCW 9.
                                                                     e)
                                                                     525( 4A.could
                                                                        2)(
                                                                        9

underlie "release from confinement" or "entry of judgment and sentence." Morales,.168 Wn.

App. at 493. Respectfully disagreeing with Division One on this point, we do not adopt that part

of its Morales rationale to define the type of offenses that circumscribe subsection (i) year
                                                                                       five -

statutory intervals. Instead, we hold that, in determining whether a defendant has been crime-

free for five year intervals under RCW 9.
              -                        e)(
                                       525( 4A.the sentencing court must decide
                                          i),
                                          2)(
                                          9

whether one of the listed prior offenses occurred within a five year period measured from the last
                                                                -

preceding judgment and sentence or the last preceding release from custody for any crime.

       To support our holding, and our departure from Division One's Morales holding on this

point,we   first look to the statute's   plain language. Dep't ofEcology   v.   Campbell & Gwinn,LLC,

146 Wn. d 1, 9 10, 43 P. d 4 (2002) citing State v. J. .,144 Wn. d 472, 480, 28 P. d 720
      2        -       3            (                M         2                 3

2001)).
      Where different language is used in the same connection in different parts of a statute,




                                                     9
No. 42914 4 II
          - -


                                                                  15
it is   presumed   that   a   different   meaning   was   intended.    State v. Roggenkamp, 153 Wn. d 614,
                                                                                                  2

625, 106 P. d 196 (2005) citing State v. Beaver, 148 Wn. d 338, 343, 60 P. d 586 (2002)).
          3              (                             2                 3

Courts will not read into a statute that which the legislature left out. Seattle Ass'n of Credit Men

v. Gen. Motors Acceptance Corp.,188 Wash. 635, 639, 63 P. d 359 (1936). Applying these
                                                        2

statutory construction principles here, we hold that the lack of the phrase "any crime" in RCW

e)(
525( 4A.
9. i) nor limits the parameters of the five year statutory intervals to
   2)(
   9    neither defines                     -

which the sentencing court may look for commission of additional "prior convictions" outside

subsection ( i)' ten year period immediately preceding the present conviction.
           i s       -

          Subsections (b), and (d) RCW 9. )
                        c),(      of   525( 4A.specify only which prior convictions
                                          2
                                          9

shall not be included"in offender score calculations when " he offender spends five years in the
                                                          t
                                                                                   16 (
community     without         committing    any crime." RCW           525( 4A. emphasis added).
                                                                      d)
                                                                      9. 2)(
                                                                         9                             In




is
   For example, we presume that the legislature intended different meanings for the following
different RCW 9.  525( 4A. terms: exclusion from an offender score specific " prior
                        2)
                        9
convictions" listed in subsections (b), ( (d)outside specified crime free intervals, and
                                        c), and                            -
inclusion in an offender score other specific subsection (e)( prior convictions would be
                                                             ii) "
considered `prior offenses within ten years' as defined in RCW 46. 1. In our view, the
                                                                5055."
                                                                     6
different terms used throughout the felony DUI offender score statute show that the legislature
used "inclusion" and "exclusion" of prior offenses when it so intended and that it did not use
these terms when it was not so referring, such as when it expressed the parameters of subsection
i)' year intervals. See RCW 9.
  s five -                         e)(
                                   525( 4A.  i).
                                             2)(
                                             9
16
     RCW 9. )
         525( 4A.provides in pertinent part:
            2
            9
          b)Class B prior felony convictions other than sex offenses shall not be included
          in the offender score, if since the last date of release from confinement (ncluding
                                                                                    i
          full time residential treatment)pursuant to a felony conviction, if any, or entry of
                -
          judgment and sentence, the offender had spent ten consecutive years in the
          community without committing any crime that subsequently results in a
          conviction.
          c)Except as provided in ( of this subsection, class C prior felony convictions
                                  e)
          other than sex offenses shall not be included in the offender score if,since the last
          date of release from confinement ( including full time residential treatment)
                                                             -
          pursuant to a felony conviction, if any, or entry of judgment and sentence, the

                                                            10
No. 42914 4 II
          - -



contrast, subsection (e)( of RCW 9. )
                       i)        525( 4A.expressly requires offender score inclusion of
                                    2
                                    9

qualifying "prior convictions" that were "committed within five years since the last date of

release from confinement (including full time residential treatment) or entry of judgment and
                                          -

sentence."Nothing in the pertinent statutory language extends the definition of includable " rior
                                                                                           p

convictions" to the type of crimes underlying a release from confinement or a judgment and

sentence that begins the five year intervals during which conviction for these specified crimes
                              -

counts in offender score calculations. Again, in our view, the statute's plain language does not

support Division One's analysis.

       Moreover, no express language in the statute suggests a contrary notion that the

legislature intended to so limit the crimes used to determine the parameters of the five year
                                                                                         -

intervals. We will not read into the statute a limitation that the legislature did not establish and

does not exist. Seattle Ass'n of Credit Men, 188 Wash. at 639 We further note that ( ) plain
                                                                                   1 the

meanings of the subsection (i)
                             phrases "release from confinement" or "entry of judgment and

sentence" include confinement or sentence for any type of crime, RCW 9.
                                                                     e)(
                                                                     525( 4A.
                                                                        i);
                                                                        2)(
                                                                        9    and

2) the legislature had intended to restrict these parameter -defining crimes to a limited class, as
  if




       offender had spent five consecutive years in the community without committing
       any crime that subsequently results in a'  conviction.
       d)Except as provided in ( )of this subsection, serious traffic convictions shall
                               e
       not be included in the offender score if, since the last date of release from
       confinement ( including full time residential treatment) pursuant to a felony
                                     -
       conviction, if any, or entry of judgment and sentence, the offender spent five
       years in the community without committing any crime that subsequently results in
       a conviction.




                                                 11
No. 42914 4 II
          - -


                                                                                                            17
it did   expressly   for offender   score    inclusion purposes, it would also have   expressly   done   so.




          We apply a similar plain language analysis to the legislature's use of the word "
                                                                                          since,"

which     means "  after," mark the beginning of
                         to                                  a   subsection (i) year interval. See RCW
                                                                              five -


e)(
525( 4A. Under this approach, prior convictions for specified offenses count toward a
9. i).
   2)(
   9

felony DUI offender score only if they occurred within five years after another prior conviction
                                                       18
or   release from confinement for any crime.                Here, the trial court included Jacob's 1989 DUI

conviction in his offender           score   for his current     felony   DUI.   But although this 1989 DUI ,

conviction occurred within five years of Jacob's 1993 drug conviction, his 1989 DUI conviction

occurred before, not after, his 1993 drug conviction. Therefore, as the State conceded at oral
             19
argument,         under the statute's plain language, Jacob's 1989 DUI conviction should not have

been included in his current offender score.




17 In our view, the legislature's parenthetical note that "confinement" also "includ[es]full time
                                                                                              -
residential treatment"       simply explains        its intent for the    meaning   of "confinement." RCW
e)(
525. 4A. It does not lead us to Division One's conclusion that the legislature thereby
9.       i).
         2(
         9
intended to limit the crimes defining the five year interval boundaries to those crimes susceptible
                                               -
to full time residential treatment.
         -

18
   Contrast with former RCW 46. 1.
                               c)
                               5055( 4)( which provides that "[ ithin ten years"
                                        1
                                        6        2011),               (      w]
means that the arrest for a prior offense occurred within ten years before or after the arrest for
the current offense. ( mphasis added).
                     E
19
  Although the State conceded that Jacob's 1993 violation of the Uniform Controlled Substance
Act ( UCSA)is not an offense includable in his offender score for the current offense, the State
    V
argued,     and   we           Jacob's 1993 VUCSA is properly used as a time -
                       agree, that                                                 boundary for
marking statutory prior five year crime free intervals. The State did not also concede, however,
                             -           -
that "since"means "after"and not "before."Instead, the State asserted that (1) "
                                                                               since"means
within"five years of the stated last event, which includes "before"and "after"the last date of
release from confinement or judgment and sentence; and (2)thus, Jacob's 1989 DUI conviction
could be counted as an offender score point, not relegated merely to setting a boundary to
circumscribe a statutory five year period.
                              -

                                                            12
No. 42914 4 II
          - -



       We hold, therefore, 1)
                           ( that the trial court improperly included Jacob's 1989 DUI in his

offender score; but ( ) trial court did not err in using Jacob's 1993 drug conviction to begin a
                    2 the

five year interval "since" Jacob's release from confinement or last judgment and sentence.
     -

Accordingly, we vacate Jacob's sentence and remand for recalculation of Jacob's offender score

and resentencing consistent with our analysis.

       A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2.6.it is so ordered.
                              040,
                               0

                              EXCLUSION OF INHALANT DEVICE TESTIMONY


       Jacob argues that his proposed testimony about his COPD inhaler use on the day of his

DUI arrest was relevant and that the trial court erred in excluding it because Knoy indicated that

inhalants affect blood alcohol levels. This argument fails.

                                       A. Standard of Review


       We review a trial court's evidentiary rulings for abuse of discretion. State v. Finch, 137

Wn. d 792, 810, 975 P. d 967, cent. denied, 528 U. . 922 (1999).A court abuses its discretion
  2                  2                           S

when its evidentiary ruling is "`
                                manifestly unreasonable, or exercised on untenable grounds, or

for untenable   reasons. "'   State v. Downing, 151 Wn. d 265, 272, 87 P. d 1169 (2004)quoting
                                                      2                 3               (

State ex rel. Carroll v. Junker, 79 Wn. d 12, 26, 482 P. d 775 (1971)). may uphold a trial
                                      2                2              We

court's evidentiary ruling on the grounds that the trial court used or on other proper grounds the

record supports. State v. Powell, 126 Wn. d 244, 259, 893 P. d 615 (1995).
                                        2                  2

        Evidence is relevant if it has "`
                                        any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be



                                                 13
No. 42914 4 II
          - -



without the evidence. "'           State v. Gregory, 158 Wn. d 759, 835, 147 P. d 1201 (2006) quoting
                                                           2                  3                (

ER    401). The threshold for admitting relevant evidence is low; even minimally relevant

evidence is admissible.            Gregory, 158 Wn. d at 835 (citing State v. Darden, 145 Wn. d 612,
                                                  2                                         2

621, 41 P. d 1189 (2002)).
         3

                                   B. Mischaracterization of Knoy's Testimony

         First, we note that Jacob mischaracterizes Knoy's testimony. Knoy testified only that the

HGN test measures "the involuntary jerking of the eyes,"
                                                       which is "
                                                                brought on by alcohol, and]
                                                                                       [

other central nervous system depressants,"
                                         which could be "prescription medication like muscle

relaxants or sleep aids that may be categorized as a depressant" or " ifferent inhalants that some
                                                                    d

people      may    use    for    huffing, like gasoline or Dust Off for instance, and also PCP

phencyclidine]"in          the     person's system.    I RP at 119 20.
                                                                   -      Knoy did not testify on direct

examination about the effect of any medications or other substances that did or might have an

effect on blood alcohol level; nor did Jacob . attempt to elicit such testimony on cross-

examination. Thus, contrary to Jacob's argument to the trial court in support of his proffered

testimony, Knoy did not testify "about medications that may have an effect on blood alcohol

level content."II RP at 213 14 ( mphasis added). In the absence of any evidence that medicinal
                            - e

inhaler use affects blood alcohol levels, Jacob's proposed testimony that he had used an inhaler

the   day    he   was   arrested    was   irrelevant. Thus, we hold that the trial court did not abuse its


discretion in excluding this testimony.

                                    COMMUNITY CUSTODY AND INCARCERATION


            Jacob argues that the trial court erred in imposing the statutory maximum term of

confinement plus a term of community custody that together exceed the statutory maximum and,



                                                          14
No. 429144- I
          I



therefore, we must remand for resentencing. The State concedes this error, acknowledging that

the trial court's notation about not exceeding the statutory maximum term no longer operates to

ensure the sentence's validity in light of our Supreme Court's recent decision in State v. Boyd,

174 Wn. d 470, 473, 275 P. d 321 (
      2                  3                 2012). Agreeing with Jacob, we accept the State's

concession of error.


       Under RCW 9. ),
                 701( 4A.the combined terms of confinement and community custody
                    9
                    9

cannot exceed the statutory maximum sentence for the crime. Here, the trial court imposed the

statutory maximum sentence of 60 months of confinement under RCW 9A. 0.
                                                                 c)
                                                                 021(
                                                                    1)(
                                                                    2  and a
                                                                              20
community custody      term that would be the   greater of either 12 months        or the period of any

earned release, such that Jacob's total combined sentence would not exceed 60 months. In Boyd,

the Supreme Court held that the trial court cannot impose a sentence in excess of the statutory

maximum and that the         called
                           so-        "Brooks notation " (   which the trial court used here in -an

attempt to keep Jacob's sentence from exceeding the statutory maximum) no longer complies

with statutory requirements of RCW 9. ), the legislature amended in 2010.
                                   701( 4A. which
                                      9
                                      9

Boyd, 174 Wn. d at 472. Instead, the trial court must reduce the term of community custody
            2

whenever the standard range confinement in combination with the community custody term




2°RCW 9. )
      701( 4A.authorizes a one year period of community custody.
         3
         9                     -

21 The "Brooks notation"was a hand -written addition to the judgment and sentence stating that
the total combined term of confinement and community custody actually served may not exceed
the statutory maximum. Brooks, 166 Wn. d at 674, superseded by Boyd.
                                       2

                                                  15
    No. 42914 4 II
              - -



    exceeds the statutory maximum. RCW 9. ); 174 Wn. d at 472. Accepting the
                                       701( 4A.Boyd,
                                          9
                                          9          2

    State's concession of error, we hold that Jacob's sentence was improper under Boyd. --

             We affirm Jacob's felony DUI conviction, vacate his sentence, and remand for offender

    score recalculation and resentencing.

             A majority of the panel having determined that this part of the opinion will not be printed in

    the   Washington Appellate Reports, but will be filed for public record in accordance with RCW




0




    22
          Although RCW 9. )
                       701( 4A. became effective on June 10, 2010, before the trial court
                          9
                          9
    sentenced Jacob for the current offense, this sentencing occurred before the Supreme Court held
    in Boyd that such a " rooks notation"sentence was improper.
                        B

                                                       16
