IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                         )
                                             )         No. 74208-6-1
                      Respondent,            )
                                             )         DIVISION ONE           C"I

             v.                              )
                                             )         UNPUBLISHED OPINIgN
RICHARD LLEWELLYN DANIELS, JR.,              )
                                             )                                .f-
                      Appellant.             )         FILED: March 6, 2017
                                             )
      APPELWICK, J. — The trial court imposed a $100 DNA fee on Daniels as

part of his LF0s. Daniels argues that the trial court should have inquired into his

ability to pay. He also argues that the fee violates equal protection and due

process. We affirm.

                                      FACTS

      Richard Daniels pleaded guilty to attempted residential burglary. He was

sentenced to 24.75 months of imprisonment. The trial court did not impose

discretionary legal financial obligations (LF0s) due to Daniels's inability to pay.

But, it found that the DNA (deoxyribonucleic acid) fee was mandatory and

imposed it against Daniels. Daniels appeals the imposition of the $100 DNA fee.

                                    DISCUSSION

      RCW 43.43.754(1)(a) requires all persons convicted of a felony to provide

a DNA sample. Relatedly, RCW 43.43.7541 requires that every felony sentence

includes a $100 DNA fee.
No. 74208-6-1/2


       Daniels argues that the trial court should have inquired into his ability to

pay the DNA fee before imposing it. He contends that not inquiring into his ability

to pay violates RCW 10.01.160(3) and the holding in State v. Blazina, 182 Wn.2d

827, 344 P.3d 680 (2015). In Blazina, the Court held that trial court must inquire

into a defendant's ability to pay before imposing LF0s. Id. at 837-38. Similarly,

RCW 10.01.160(3) states that courts "shall not order a defendant to pay costs

unless the defendant is or will be able to pay them."

       But, costs that are required by statute are not subject to the obligation to

inquire into the defendant's ability to pay. State v. Clark, 195 Wn. App. 868, 872,

381 P.3d 198 (2016), review granted in part on other grounds by             Wn.2d   ,

     P.3d      (2017); see also State v. Mathers, 193 Wn. App. 913, 921, 376

P.3d 1163 (2016)("Mathers asserts Blazina clearly implicates that the DNA. . .

statute should be read in conjunction with RCW 10.01.160.             However, this

interpretation is overbroad. . . . Throughout the [Blazina] opinion, the court made

clear that it was reviewing only discretionary LF05."), review denied, 186 Wn.2d

1015, 380 P.3d 482 (2016).           Unlike discretionary LF0s, the legislature

unequivocally requires imposition of the mandatory DNA fee without regard to

finding the ability to pay. State v. Shelton, 194 Wn. App. 660, 673-74, 378 P.3d

230 (2016), review denied, 187 Wn.2d 1002, 386 P.3d 1088 (2017). The trial

court was therefore not required to inquire into Daniels' ability to pay.

       Daniels also makes constitutional arguments. He argues that refusing to

waive mandatory fees on criminal defendants violates equal protection because

civil litigants receive fee waivers in some circumstances. But, Washington courts


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No. 74208-6-1/3


have previously held that waiving court fees for civil litigation, but not waiving the

DNA fee for criminal litigants does not violate equal protection. See Mathews,

193 Wn. App. at 925-26. "[B]ecause there is a rational basis to impose the fee

for every felony sentence for the cost of collection as well as to fund the ongoing

cost to operate and maintain the DNA database, the DNA fee statute does not

violate equal protection." State v. Lewis, 194 Wn. App. 709, 720, 379 P.3d 129,

review denied, 186 Wn.2d 1025 (2016).

       Daniels also argues that, in light of Blazina, imposing the $100 DNA fee

violates substantive due process. But, a due process constitutional challenge to

the DNA fee statute is not ripe for review until the State attempts to enforce

collection of the fee. Shelton, 194 Wn. App. at 672-73. The record merely

shows that the judge imposed this fee on Daniels. Nothing in the record shows

that the State has sought to collect this fee or punish Daniels for nonpayment.

This argument is therefore not ripe for review.

       We affirm.




WE CONCUR:




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