                                                                          FILED 

                                                                      December 3,2015, 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )        No. 32517-2-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JASON MICHAEL TAIT,                           )        UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. - Jason Tait appeals his conviction for possessing

methamphetamine. He argues that the trial court wrongly denied his motion to suppress

evidence obtained as the result of a traffic stop that Mr. Tait contends was pretextual and

thereby unlawful. He also challenges a sentencing condition imposed by the court

requiring him to undergo outpatient drug treatment at his expense and a finding of

"chemical dependency" that he contends is essential to imposing the condition. We find

no error or abuse of discretion and affirm.

                    FACTSANDPROCEDURALBACKGROlmD

       The State of Washington suspended Jason Tail's driver's license for failure to pay

child support. He was stopped for driving with a suspended license several times,

according to City of Walla Walla Police Officer Jeremy Pellicer, although as the officer
No. 32517-2-II1
State v. Taif


later explained, "sometimes we will cut them a break and just cite and release them."

Report of Proceedings (RP) at 5.

       On January 25, 2013, Officer Pellicer spotted Mr. Tait's car, a gray Mercury

Cougar, parked outside the home of Mr. Tait's friend. He confirmed that Mr. Tait's

license remained suspended and decided to park and wait to see if Mr. Tait returned and

drove. He had learned sometime earlier that Mr. Tait might market or use

methamphetamine and recognized that this may present an opportunity to discover

supporting evidence. He would also later explain that while he had cut Mr. Tait a break

in the past for driving with a suspended license, "it's our-or at least my policy that if

someone continually violates the same violation, that we-there are more consequences

to it." RP at 5.

       Mr. Tait returned to his car shortly after Officer Pellicer parked. When Mr. Tait

began to drive away, Officer Pellicer stopped him.

       When Officer Pellicer approached Mr. Tait and told him he had stopped him for

driving with a suspended license, Mr. Tait admitted to the violation. Before writing the

citation, Officer Pellicer contacted Officer Gunner Fullmer, the city's K-9 officer, and

asked him to bring his dog-his "K-9 partner"-to the location of the stop. Officer

Pellicer knew he was going to take Mr. Tait into custody for the moving violation and

that there should be time for Officer Fulmer to deploy his K-9 partner on the car. Officer

Pellicer later testified at a suppression hearing that he called Officer Fulmer because "I

                                             2

No. 32517-2-II1
State v. Tait


have had numerous contacts with Jason Tait in the past and I have known him to have

drug paraphernalia and drug amounts on him." RP at 6.

       When Officer Fulmer arrived, he spoke briefly with Officer Pellicer and then

spoke with Mr. Tait while Officer Pellicer prepared the citation for the moving violation.

Officer Fulmer identified himself to Mr. Tait, asked ifhe had any illegal substance in his

car or on his person, and when Mr. Tait said no, asked for permission to search the car.

Mr. Tait denied permission. Officer Fulmer then told Mr. Tait that he was going to

deploy his dog to the outside of the car, retrieved his K-9 partner, and walked him around

the outside of the car a couple of times. The dog alerted to the door seams of both the

passenger's and driver's side doors.

       Officer Fulmer told Officer Pellicer of the dog's reaction and Officer Pellicer

decided to arrest Mr. Tait for the suspended license offense. During a search incident to

the arrest, Officer Pellicer found a glass smoking pipe on Mr. Tait which later tested

positive for methamphetamine.

       The officers impounded Mr. Tait's Cougar and obtained a warrant to search it. A

pill bottle with a defaced label that contained 36 pills of hydrocodone, a controlled

substance, was found inside the car. Mr. Tait was charged with four counts: (1)

possession of hydrocodone, (2) possession of methamphetamine, (3) use of drug

paraphernalia, and (4) driving while license suspended or revoked in the third degree.




                                             3

No. 32517-2-111
State v. Taft



       Mr, Tait moved to suppress all of the evidence against him on the ground that

Officer Pellicer's stop of his car was pretextual-that his true motive for the stop was to

search for drugs. After hearing testimony from officers Pellicer and Fulmer, the trial

court denied the motion, later entering the following findings:

               1. The Court finds that Offlicer] Pellicer had a lawful basis to stop
       Mr. TaWs vehicle based [on] Mr. Tail's suspended driving status.
               2. The Court finds that Offlicer] Pellicer would have conducted a
       traffic stop of Mr. Tait's vehicle regardless of having information that Mr.
       Tait might possibly be involved in drugs.
               3. The Court finds that Offlicer] Fulmer's deployment of his K9
       partner did not constitute a search of Mr. Tait's vehicle that exceeded the
       scope of the traffic stop.
               4. The Court finds that Offlicer] Pellicer had probable cause to
       arrest Mr. Tait for the suspended driving [license] offense, and that his
       search of Mr. Tait was a valid search incident to arrest.

Clerk's Papers (CP) at 59.

       The State eventually dismissed all charges other than the charge of possession of

methamphetamine and Mr. Tait proceeded to a stipulated facts trial, stipulating that the

residue on the pipe found on his person was methamphetamine. The trial court found

him guilty of possessing methamphetamine.

       The standard range for the charge for an individual with no criminal history (Mr.

Tait had none) was 0 to 6 months. The court sentenced Mr. Tait to 30 days confinement,

gave him credit for 4 days served, and converted his remaining 26 days to 208 hours of

community service. Consistent with conditions of sentencing proposed by the State, the

trial court told Mr. Tait at sentencing that "based upon your plea to possession of

                                             4

No. 32517-2-II1
State v. TaU


methamphetamine, the Court finds you are guilty and that you have a chemical

dependency." RP at 70. The court ordered Mr. Tait to participate in an outpatient drug

program at his expense. Mr. Tait made no objection to the drug program condition in the

trial court.

        Mr. Tait appeals the trial court's suppression decision and the sentencing condition

requiring that he participate in an outpatient drug program.

                                        ANALYSIS

                                      Pre textual Stop

       Jason Tait first contends that the trial court erred in denying his motion to

suppress. In arguing that the real motive for the stop was to search him for drugs, he

emphasizes the immediate summoning, arrival, and deployment of a drug-sniffing dog.

       Mr. Tait does not challenge the trial court's findings of fact entered in denying the

suppression motion, so they are verities on appeal. State v. Brockob, 159 Wn.2d 311,

343, 150 P.3d 59 (2006). The only question presented for our review, then, is whether

the findings of fact support the trial court's conclusion that the glass smoking pipe

containing methamphetamine was admissible for the reason it was found during a lawful

traffic stop. We review conclusions of law in an order pertaining to suppression of

evidence de novo. State v. Chacon Arreola, 176 Wn.2d 284,291,290 P.3d 983 (2012).

       As a general rule, warrantless searches and seizures violate article I, section 7 of

the Washington State Constitution. State v. Duncan, 146 Wn.2d 166,171,43 P.3d 513

                                              5

No. 32517-2-II1
State v. Taif


(2002). A traffic stop is a "seizure" for the purpose of constitutional analysis. State v.

Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999). One of the narrow exceptions to the

warrant requirement recognized by Washington cases is a Terryl investigative stop,

which authorizes police officers "to briefly detain a person for questioning without

grounds for arrest if they reasonably suspect, based on 'specific, objective facts,' that the

person detained is engaged in criminal activity or a traffic violation." State v. Day, 161

Wn.2d 889, 896, 168 P.3d 1265 (2007). Such stops must be justified at their inception

and must be reasonably limited in scope based on whatever reasonable suspicions legally

justified the stop in the first place. Chacon Arreola, 176 Wn.2d at 293-94. The State

bears the burden of demonstrating that a warrantless seizure falls into a narrow exception

to the general rule that a warrant is required. State v. Doughty, 170 Wn.2d 57,61,239

P.3d 573 (2010).

       Purely pretextual traffic stops violate article I, section 7 of the Washington

Constitution. Ladson, 138 Wn.2d at 358. A pretextual traffic stop occurs when a police

officer relies on some legal authorization as a mere pretext to dispense with a warrant

when the true reason for the seizure is not exempt from the warrant requirement. Id. To

determine whether a traffic stop is pretextual, Washington courts evaluate the totality of




       1   Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968).

                                              6

No. 32517-2-111
State v. TaU


the circumstances, including both the subjective intent of the officer as well as the

objective reasonableness of the officer's behavior. Id. at 358-59.

       The trial court found that Officer Pellicer "had a lawful basis to stop Mr. Tait's

vehicle based [on his] suspended driving status" and "would have conducted a traffic stop

of Mr. Tait's vehicle regardless of having information that Mr. Tait might possibly be

involved in drugs." CP at 59. Nevertheless, the fact that Officer Pellicer immediately

summoned Officer Fulmer without encountering any evidence of drug possession during

the stop reveals that there was a second motive for the stop from the outset. It is properly

analyzed as a mixed motivation stop.

       Our Supreme Court addressed a mixed motivation stop in Chacon Arreola. In that

case, a Mattawa police officer responding to a report of a possible DUI (driving under the

influence) in progress followed a car meeting the description provided for a considerable

distance without seeing any signs of impaired driving. He eventually stopped the driver

to cite him for the car's illegally altered exhaust system, although he "was relatively more

interested in the potential DUI." 176 Wn.2d at 289. Upon approaching the car, the

officer smelled alcohol and saw open containers in the vehicle.

       The Supreme Court reversed this court's decision that a mixed motivation stop

was unlawful and affirmed the trial court's ruling upholding the traffic stop, explaining

that "[a] mixed-motive stop does not violate article I, section 7 so long as the police




                                              7

No. 32517-2-111
State v. Tait


officer making the stop exercises discretion appropriately." Id. at 298. It explained what

it meant by an "appropriate" exercise of discretion:

        [I]f a police officer makes an independent and conscious determination that
       a traffic stop to address a suspected traffic infraction is reasonably
       necessary in furtherance of traffic safety and the general welfare, the stop is
       not pretextual. That remains true even if the legitimate reason for the stop
       is secondary and the officer is motivated primarily by a hunch or some
       other reason that is insufficient to justifY a stop. In such a case, the
       legitimate ground is an independent cause of the stop and privacy is
       justifiably disturbed due to the need to enforce traffic regulations, as
       determined by an appropriate exercise of police discretion.

Id. at 298-99.

       The court said that a trial court "should consider the presence of an illegitimate

reason or motivation" when determining the critical issue of "whether the officer really

stopped the vehicle for a legitimate and independent reason (and thus would have

conducted the traffic stop regardless)." Id. at 299. But it reasoned that "a police officer

cannot and should not be expected to simply ignore the fact that an appropriate and

reasonably necessary traffic stop might also advance a related and more important police

investigation." Id.

       Mr. Tait attempts to distinguish Chacon Arreola in two ways: he argues that

Officer Pellicer did not treat the stop like any other stop, as evidenced by the drug sniff;2



        2 In Chacon Arreola, the Supreme Court observed that "[u]p to [the point of the
pulling over and approaching Chacon], Officer Valdivia had 'treated the stop just like any
other traffic stop.'" 176 Wn.2d at 290.

                                              8

No. 32517-2-III
State v. Tait


and, unlike the officer in Chacon Arreola who smelled alcohol and saw open containers

during the lawful detention, the lawful detention of Mr. Tait did not lead to corroborating

observations that confirmed Officer Pellicer's suspicions of drug possession. But facts of

this sort, while recounted in Chacon Arreola, were not the Supreme Court's key concern.

       Rather, critical to the court in Chacon Arreola was the unchallenged trial court

finding that the officer would have stopped Mr. Chacon's car even ifhe had not

suspected that he was the reported drunk driver. As the court explained:

               A trial court's consideration of a challenge to an allegedly pretextual
       traffic stop should remain direct and straightforward. The trial court should
       consider both subjective intent and objective circumstances in order to
       determine whether the police officer actually exercised discretion
       appropriately. The trial court's inquiry should be limited to whether
       investigation ofcriminal activity or a traffic infraction (or multiple
       infractions), for which the officer had a reasonable articulable suspicion,
       was an actual, conscious, and independent cause ofthe traffic stop.

176 Wn.2d at 299-300 (emphasis added). In this case, the trial court's finding that

"Officer Pellicer would have conducted a traffic stop of Mr. Tait's vehicle regardless of

having information that Mr. Tait might possibly be involved in drugs" is not challenged.

CP at 59.

       Finally, the court in Chacon Arreola stated that "an officer's motivation to remain

observant and potentially advance a related investigation does not taint the legitimate

basis for the stop so long as discretion is appropriately exercised and the scope ofthe stop

remains reasonably limited based on its lawful justification." ld. at 299 (emphasis


                                             9

No. 32517-2-II1
State v. Tait


added). Mr. Tait argues that the scope of the traffic stop in his case ceased to be

reasonably limited when Officer Pellicer asked Officer Fullmer to come to the scene.

       In State v. Boursaw, 94 Wn. App. 629, 634-35, 976 P.2d 130 (1999), this court

found that a K-9 search of a vehicle incident to a driver's arrest, even after the driver's

removal from the vehicle, was constitutional. The Boursaw court emphasized that the

deployment of the dog only took ten minutes. Cf Illinois v. Caballes, 543 U.S. 405, 409­

10, 125 S. Ct. 834, 838, 160 L. Ed. 2d 842 (2005) (a dog sniff conducted during a lawful

traffic stop that reveals no information other than the location of a substance that no

individual has any right to possess does not violate the Fourth Amendment). Mr. Tait's

own declaration in support of his motion to dismiss acknowledged (relying on time

information included on video filmed from Officer Pellicer's car) that the officer pulled

him over at 4: 17 p.m., that Officer Fulmer arrived five minutes later, that Officer Fulmer

spent "over three and one-half minutes trying to convince me to let him search my car,"

and, when Mr. Tait would not consent, that Officer Fulmer completed deploying the dog

by 4:30 p.m. CP at 20-21. This evidence of a short detention is sufficient to support the

trial court's finding that summoning Officer Fulmer did not cause the scope of the stop to

exceed its lawful justification as a traffic stop.

       The trial court's findings support its conclusion that Officer Pellicer's stop, while

a mixed motivation stop, was lawful. The suppression motion was properly denied.




                                               10 

No. 32517-2-III
State v. Tail


                                   Chemical Dependency

       The trial court ordered Jason Tait to participate in an outpatient drug program at

his expense. Relying on RCW 9.94A.607, Mr. Tait argues that the sentencing court was

not authorized to impose the condition without making a finding that he was chemically

dependent. He argues that a finding of chemical dependency must be based on an

"examination or evaluation" sufficient to establish that the defendant is a "persistent and

pathological" user of drugs. Appellant's Br. at 10.

                                     Error Preservation

       A threshold issue is whether Mr. Tait may complain about the drug program

condition for the first time on appeal. RAP 2.5(a) states the general rule for appellate

disposition of issues not raised in the trial court: appellate courts will not entertain them.

State v. Guzman Nunez, 160 Wn. App. 150, 157,248 P.3d 103 (2011) (citing State v.

Scott, 110 Wn.2d 682,685, 757 P.2d 492 (1988)), ajJ'd, 174 Wn.2d 707, 285 P.3d 21

(2012). We may decline to address an issue under RAP 2.5(a) sua sponte. State v.

Kirkpatrick, 160 Wn.2d 873, 880 n.10, 161 P.3d 990 (2007), overruled on other grounds

by State v. Jasper, 174 Wn.2d 96,271 P.3d 876 (2012).

       In State v. Armstrong, 91 Wn. App. 635, 959 P.2d 1128 (1998), Division One of

our court concluded that a defendant could challenge sentencing conditions for the first

time on appeal despite RAP 2.5(a). It relied on a series of decisions, the then-most recent

being State v. Moen, 129 Wn.2d 535, 919 P.2d 69 (1996), in which our Supreme Court

                                              11 

No. 32517-2-III
State v. Tait


held that a challenge to a sentence on the basis that it is contrary to law may be raised for

the first time on appeal. Armstrong nonetheless held that where a sentence condition is

not challenged in the trial court, any limitations of the record are properly construed

against the defendant on appeal:

       If [the defendant] had raised his objections in the trial court, the State could
       have made a more complete record in support of them. Similarly, the trial
       court could have either modified the conditions or made a more thorough
       statement on the record in explaining its reasoning for imposing the
       challenged conditions .... For these reasons, we adhere to the usual rule
       that the party seeking review has the burden of perfecting the record so that
       this court has all relevant evidence.

91 Wn. App. at 638-39.

       More recent decisions of our Supreme Court, and particularly State v. Blazina, 182

Wn.2d 827,834,344 P.3d 680 (2015) have clarified that Moen and similar cases

represent what is a "narrow category" of cases in which sentencing error need not be

preserved: cases presenting, e.g., "inconsistent sentences for the same crime" or "unjust

punishment." Id. Holding that sentencing error in imposing legal financial obligations

(LFOs) is subject to the preservation requirement of RAP 2.5(a), the court explained:

      [A]llowing challenges to discretionary LFO orders would not promote
      sentencing uniformity in the same way. The trial court must decide to
      impose LFOs and must consider the defendant's current or future ability to
      pay those LFOs based on the particular facts of the defendant's case ....
      The legislature did not intend LFO orders to be uniform among cases of
      similar crimes. Rather, it intended each judge to conduct a case-by-case
      analysis and arrive at an LFO order appropriate to the individual
      defendant's circumstances. Though the statute mandates that a trial judge
      consider the defendant's ability to pay and, here, the trial judges erred by

                                             12 

No. 32517-2-111
State v. Tail


       failing to consider, this error will not taint sentencing for similar crimes in
       the future. The error is unique to these defendants' circumstances, and the
       Court of Appeals properly exercised its discretion to decline review.

Id.

       In light of Blazina, we conclude that RAP 2.5(a) probably applies, with the result

that we need not consider the alleged sentencing error. Nonetheless, because the decision

in Blazina postdated the briefing in this case and Mr. Tait has not had the opportunity to

try to persuade us otherwise, we will review his challenge to the sentence condition.

Given his failure to object to the condition in the trial court, we will apply Armstrong's

holding that the limitations in the record are properly construed against Mr. Tait.

                       No Showing ofManifest Abuse ofDiscretion

       Trial courts may only impose conditions of community custody that are authorized

by the legislature. State v. Kolesnik, 146 Wn. App. 790, 806, 192 P.3d 937 (2008).

Under RCW 9.94A.505(8), a sentencing court "may impose and enforce crime-related

prohibitions and affirmative conditions as provided in this chapter." Applying the last

antecedent rule to the phrase "as provided in this chapter," the statute has been construed

as constituting an independent grant of authority under which courts may impose crime-

related prohibitions, but as requiring that any affirmative condition imposed have a

statutory basis elsewhere in the Sentencing Reform Act of 1981, ch. 9.94A RCW (SRA).

State v. Acrey, 135 Wn. App. 938, 943-44, 146 P.3d 1215 (2006). The "as provided in

this chapter" phrase "is meant to refer to an overarching distinction between crime­

                                             13 

No. 32517-2-III
State v. Tail


related prohibitions and affirmative conduct conditions present throughout the SRA."

Statev.Armendariz, 160Wn.2d 106,114, 156P.3d201 (2007) (citing Acrey, 135 Wn.

App. at 944-45). The distinction between crime-related prohibitions and affirmative

conditions is reflected in the definition of "crime-related prohibition" as meaning "an

order of a court prohibiting conduct that directly relates to the circumstances of the crime

for which the offender has been convicted, and shall not be construed to mean orders

directing an offender affirmatively to participate in rehabilitative programs or to

otherwise perform affirmative conduct." RCW 9.94A.030(10).

       The trial court's order that Mr. Tait "will participate in an outpatient []drug

program at his expense" imposes an affirmative condition. See State v. Parramore, 53

Wn. App. 527, 532, 768 P.2d 530 (1989) ("Although 'affirmative conduct' is not defined

... the context in which it is used suggests active involvement in pursuit of a goal").

Two provisions of the SRA, arguably provide a statutory basis for the court's drug

treatment sentencing condition.

       One is former RCW 9.94A.607(l)(1999), which Mr. Tait assumes is the basis for

the condition. It provides in relevant part that

       Where the court finds that the offender has a chemical dependency that has
       contributed to his or her offense, the court may, as a condition of the
       sentence and subject to available resources, order the offender to participate
       in rehabilitative programs or otherwise to perform affirmative conduct
       reasonably related to the circumstances of the crime for which the offender
       has been convicted and reasonably necessary or beneficial to the offender
       and the community in rehabilitating the offender.

                                              14 

No. 32517-2-III
State v. Taif



       Another is RCW 9.94A.703(3), which authorizes courts to order as conditions of

community custody (among others) that an offender "[p]articipate in crime-related

treatment or counseling services" or "[p]arti cip ate in rehabilitative programs or otherwise

perform affirmative conduct reasonably related to the circumstances of the offense, the

offender's risk ofreoffending, or the safety of the community." RCW 9.94A.703(3)(c)

and (d).

       The record is not clear which statutory basis was intended by the State, which

proposed the condition, or which was relied on by the sentencing court. We conclude

that it does not matter, as either is sufficient. 3

       We review a sentence condition for an abuse of discretion. State v. Riley, 121

Wn.2d 22, 37, 846 P.2d 1365 (1993). In the context of determining whether a sentence

condition was reasonably crime-related, our Supreme Court has observed that sentence



       3 Weighing in support ofRCW 9.94A.607 as the basis are the court's statement at
sentencing that "based upon your plea to possession of methamphetamine, the Court
finds you are guilty and that you have a chemical dependency," RP at 70, and its making
the preprinted finding on the felony judgment and sentence form that "The court finds
that the defendant has a chemical dependency that has contributed to the offense(s)" (but
even that finding is followed by an unparticularized reference to "RCW 9.94A._"). CP
at 66.
        Weighing in favor ofRCW 9.94A.703 as the basis for the condition is the fact that
it appears in an appendix to the judgment and sentence, presented by the State, that
consists largely of community custody conditions imposed incident to Mr. Tait's sentence
to 12 months' community custody.


                                                 15 

No. 32517-2-III
State v. Taif


conditions "are usually upheld." State v. Warren, 165 Wn.2d 17,32, 195 PJd 940

(2008). Sentence conditions will be reversed only if manifestly unreasonable such that

no reasonable man would take the view adopted by the trial court. Riley, 121 Wn.2d at

37.

       The facts stipulated for purposes of trial included the fact that Officer Pellicer

called dispatch for backup on the day ofthe arrest "because he had learned information

that Mr. Tait might be involved in dealing and using methamphetamine." CP at 61.

They included the fact that Mr. Tait denied having anything illegal in the car and refused

to consent to a search. ld. at 61-62. They included the fact that during a search incident

to arrest, Mr. Tait was found to be carrying a small pipe that contained

methamphetamine.

      Although some charges were later dropped by the State, Mr. Tait's possession of

the pipe, the methamphetamine, and hydrocodone tablets found in his car subjected him

to two counts of violating RCW 69.50.4013, a class C felony punishable by 5 years'

incarceration or $10,000, or both; and one count of violating RCW 69.50.412(1), a

misdemeanor punishable by 90-days incarceration, a fine of not more than $1,000, or

both. Unlike alcohol or marijuana, which can be consumed legally, Mr. Tail's use of

methamphetamine subjected him to this risk of prosecution and punishment. While it

may be minimal evidence ofa chemical dependency, Mr. Tait's willingness to expose

himself to substantial criminal penalties in order to smoke methamphetamine is some

                                             16 

No. 32517-2-II1
State v. Tail


evidence of a chemical dependency. As was the case in Armstrong, absent a better-

developed record of why the State suggested the drug treatment condition and why the

court imposed it, we cannot conclude that the trial court committed a manifest abuse of

discretion in making the chemical dependency finding and imposing the treatment

condition.

       We also note that the history ofRCW 9.94A.607, enacted in 1999 with the

passage of Engrossed Second Substitute H.B. 1006 (E2SHB), indicates that the

legislature had a low threshold in mind for the chemical dependency finding, viewing

drug treatment as something from which a large number of offenders would benefit. The

final bill report for E2SHB 1006 states, by way of "background," that 44[t]he Department

of Corrections reports that 80 percent of offenders that are sentenced are arrested for a

drug offense or a crime that is a result of a chemical dependency.,,4

       Affirmed.




       4 While not applicable to Mr. Tait's case, we also observe that following a recent
amendment, RCW 9.94A.607 now provides that 4'[a] rehabilitative program may include
a directive that the offender obtain an evaluation as to the need for chemical dependency
treatment related to the use of alcohol or controlled substances, regardless of the
particular substance that contributed to the commission of the offense." LAWS OF 2015,
ch. 81, § 2. The statute thus explicitly recognizes that a sentencing court's finding of
chemical dependency and ordering of drug treatment may precede an evaluation as to
whether chemical dependency treatment is needed.

                                             17
No. 32517-2-II1
State v. Tail


       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




I CONCUR: 





                                            18 

                                      No. 32517-2-II1

       FEARING, 1. (concurring in part; dissenting in part) -   I agree with the majority's

ruling affirming the trial court's denial of Jason Tail's motion to suppress and affirming

the conviction of Tait for possession of methamphetamine. I disagree with and dissent

from the majority's affirmation of the sentencing condition imposed by the trial court

requiring Tait to undergo outpatient drug treatment. The trial court merely stated: "Mr.

Tait, based upon your plea to possession of methamphetamine, the Court finds you are

guilty and that you have a chemical dependency." Report of Proceedings (RP) at 70. I

agree with Jason Tait that the evidence does not support a finding of "chemical

dependency," let alone a finding that a chemical dependency contributed to the crime. I

conclude the sentencing condition was error.

      The controlling statute is RCW 9.94A.607, a section of Washington's Sentencing

Reform Act of 1981, ch. 9.94A RCW (SRA). The statute reads:

              Where the court finds that the offender has a chemical dependency
      that has contributed to his or her offense, the court may, as a condition of
      the sentence and subject to available resources, order the offender to
      participate in rehabilitative programs or otherwise to perform affirmative
      conduct reasonably related to the circumstances of the crime for which the
No. 32517-2-III
State v. TaU - concurring in part and dissenting in part


       offender has been convicted and reasonably necessary or beneficial to the
       offender and the community in rehabilitating the offender.

(Emphasis added.) This statute authorizes the trial court to order an offender to obtain a

chemical dependency evaluation and to comply with recommended treatment only if it

finds that the offender has a chemical dependency that contributed to his or her offense.

State v. Warnock, 174 Wn. App. 608,612,299 P.3d 1173 (2013). The trial court may

order the treatment only if the defendant is subject to community custody. In re

Postsentence Review o/Childers, 135 Wn. App. 37,41,143 P.3d 831 (2006).

       Jason Tait challenges the trial court's finding of a chemical dependency for

insufficient evidence. This court reviews challenged findings of fact for substantial

evidence. State v. Mann, 157 Wn. App. 428, 441, 237 P.3d 966 (2010). Substantial

evidence is evidence sufficient to persuade a rational, fair-minded person that the fact is

true. Mann, 157 Wn. App. at 441.

       To resolve Jason Tait's contention we must first determine what constitutes a

chemical dependency within the meaning ofRCW 9.94A.607. If there is no chemical

dependency, no dependency could have contributed to the crime. RCW 9.94A.607 does

not define "chemical dependency." Nor does RCW 9.94A.030, the definitional section of

the Sentencing Reform Act, establish a meaning for the term.

       In State v. Hutsell, 120 Wn.2d 913,917,845 P.2d 1325 (1993), our Supreme

Court defined "dependence" upon a psychoactive substance in a case addressing whether

the defendant was entitled to a sentence below the standard sentencing range. Allen

                                                 2

No. 32517-2-111
State v. TaU - concurring in part and dissenting in part


Hutsell argued that his dependence on illicit drugs diminished his ability to appreciate the

wrongfulness of his conduct and thus the dependency constituted a mitigating factor

under the SRA. "Chemical dependency" was not a term used in a statute addressed in the

decision. The Supreme Court wrote:

              Dependence is a mental disorder, distinct from the direct
       physiological effects of psychoactive substance use, Le., intoxication and
       withdrawal. American Psychiatric Ass'n, Diagnostic and Statistical
       Manual o/Mental Disorders 165 (3d rev. ed. 1987) (DSM-III-R).
       Dependence has nine characteristic symptoms, three of which are necessary
       for diagnosis. DSM-III-R, at 166-67. Some of these symptoms include:
       unintended excessive substance use (e.g., intending to take only one drink,
       but nevertheless drinking until severely intoxicated), unsuccessful efforts to
       reduce or control substance use, preoccupation with activities necessary to
       obtain and pay for the substance (e.g., theft), and persistent use despite
       recognition of the resulting physical, psychological, and social problems.
       DSM-III-R, at 166-68.

State v. Hutsell, 120 Wn.2d at 917.

       The state Supreme Court, in State v. Hutsell, ruled that sufficient evidence

supported the trial court's finding that Allen Hutsell was chemically dependent, but the

court did not share the evidence that supported the finding. The finding did not help

Hutsell anyway because the court ruled that chemical dependence was not a mitigating

factor for sentencing.

       RCW 70.96A.020 defines "chemical dependency" in the setting of public health

law. The statute reads, in relevant part:

             (5) "Chemical dependency" means:
             (a) Alcoholism; (b) drug addiction; or (c) dependence on alcohol
       and one or more other psychoactive chemicals, as the context requires.

                                                 3
No. 32517-2-III
State v. Tait - concurring in part and dissenting in part



             (10) "Drug addiction" means a disease characterized by a
       dependency on psychoactive chemicals, loss of control over the amount and
       circumstances of use, symptoms of tolerance, physiological or
       psychological withdrawal, or both, if use is reduced or discontinued, and
       impairment of health or disruption of social or economic functioning.

       In State v. Warnock, 174 Wn. App. 608 (2013), this court refused to rely on RCW

70.96A.020 when determining if a defendant was chemically dependent for purposes of

RCW 9 .94A.607. The principal reason for rejecting the definition under RCW

70.96A.020 was that the defendant was intoxicated at the time of the offense, not high on

controlled substances.

       In State v. Powell, 139 Wn. App. 808, 162 P.3d 1180 (2007), rev'd on other

grounds, 166 Wn.2d 73, 206 P.3d 321 (2009), this court affirmed a trial court sentence

that included substance abuse treatment under RCW 9.94A.607. Nevertheless, both the

State and the defendant sought imposition of the treatment. This court affirmed the

sentence condition despite the trial court's failure to "check the box" indicating Powell

had a chemical dependency. State v. Powell, 139 Wn. App. at 820. This court concluded

that the record amply supported the trial court decision. The only fact mentioned by this

court, however, was Powell's consumption of methamphetamine before committing the

charged crime of burglary.

      Assuming we correctly define "chemical dependency," we must next determine if

evidence supported the trial court's finding that Jason Tait was chemically dependent.

The evidence upon which the trial court convicted showed that, upon a traffic stop, Tait

                                                  4

No. 32517-2-II1
State v. Taif - concurring in part and dissenting in part



possessed a glass smoking pipe that tested positive for methamphetamine. A pill bottle

with a defaced label that contained hydrocodone, a schedule II controlled substance, lay

in his car. The record does not show that Jason Tait imbibed the methamphetamine

before driving. He was not under the influence of a controlled substance when stopped in

his car.

       One could argue that Tait must be chemically dependent because he drove with his

driver's license suspended while in the possession of methamphetamine and

hydrocodone. He was subject to easy arrest and thus must have labored under a

compulsion to commit the imprudent act. At the same time, Tait might not have reflected

on his behavior and drove the car without a care or sense of caution. Offenders routinely

perform unwise acts without the conduct being caused by a chemical dependency.

       The State asks this court to rely on Taifs reputation with police to support the

finding of chemical dependency. The State writes: "From numerous contacts, police

knew [Tait] to have been in possession of illegal drugs and the paraphernalia to

personally consume them." Resp't's Br. at 9-10. Nevertheless, the details surrounding

these contacts are not in the record. And, at most, Tait's reputation with police shows

use, not dependence.

       A finding of chemical dependency should not rest on one's reputation. Also, use

alone does not establish dependency. Otherwise, the statute would read that the court

may impose chemical dependency treatment merely upon use of a controlled substance,


                                                  5

No. 32517-2-III
State v. Tait - concurring in part and dissenting in part


rather than chemical dependency. Under the trial court's reasoning, the statute would

read that, upon conviction for possession of a controlled substance, the trial court may

order attendance at a drug treatment program.

       The State presented no evidence of unintended excessive substance use,

unsuccessful efforts to reduce or control substance use, preoccupation with activities

necessary to obtain and pay for the substance, persistent use despite recognition of the

resulting physical, psychological, and social problems, or withdrawal symptoms. Thus,

substantial evidence does not support the finding of chemical dependency.

       Two foreign cases address the boundaries of chemical dependency in other

settings. These cases support my conclusion, as both distinguish use and dependency.

       In Kim v. Gen-X Clothing, Inc., 287 Neb. 927, 845 N.W.2d 265 (2014), a worker

compensation case, the reviewing court addressed whether the trial court correctly

ordered the employer to pay for chemical dependency treatment undergone by the

worker. The employee argued that the treatment was needed as a result of reliance on

drugs because he suffered posttraumatic stress disorder. The worker sustained stress as a

result of a robbery at work. The employer emphasized that the employee consumed

illegal drugs most of his life and thus the robbery did not cause any chemical

dependency. The reviewing court upheld the trial court because past recreational use of

drugs did not meet the employee's expert's definition of chemical dependency.

      In Peterson v. Northwest Airlines Inc., 753 N.W.2d 771 (Minn. Ct. App. 2008),


                                                  6
No. 32517-2-III
State v. Tait - concurring in part and dissenting in part


Gregory Peterson sought unemployment compensation after his employer, Northwest

Airlines, fired him for consuming alcohol while on flight reserve status. A Minnesota

statute denied compensation if the employee was fired for "misconduct." An exception

read: "conduct that was a direct result of the applicant's chemical dependency is not

employment misconduct." Peterson v. Northwest Airlines, Inc., 735 N.W.2d at 774.

(Emphasis added). The reviewing court affirmed the denial of unemployment benefits.

The employee had difficulty consuming alcohol in a responsible manner, but it did not

follow that he was chemically dependent. Peterson provided no formal diagnosis, or

other evidence, that established that he was chemically dependent. The Minnesota court

wrote:

                While there is no statutory definition of chemical dependency, [the
         employee's] conception of chemical dependency is over-inclusive. As [the
         employer] points out, an individual can make mistakes with alcohol or
         abuse alcohol without being chemically dependent. . .. [T]wo chemical­
         dependency evaluations, one three months before the incident and one six
         months after the incident, concluded that [the employee] was not
         chemically dependent.

Peterson v. Northwest Airlines, Inc., 753 N.W.2d at 777.




                                                            Fearing, 1.




                                                  7

