                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                           November 15, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                  No. 47942-7-II

                                 Respondent,

         v.

 DENISE LORRAINE WEISS,                                         UNPUBLISHED OPINION

                                 Appellant.

        JOHANSON, J. — Following a bench trial on a stipulated record, the trial court found Denise

Lorraine Weiss guilty of unlawful possession of a controlled substance. At sentencing, the trial

court waived discretionary legal financial obligations (LFOs), but imposed mandatory LFOs,

including a mandatory $100 deoxyribonucleic acid (DNA) collection fee. Weiss appeals from the

imposition of the mandatory $100 DNA collection fee, asserting that the DNA collection fee

statute violates her substantive due process rights in light of her inability to pay the fee. We affirm.

                                               FACTS

        On September 2, 2014, the State charged Weiss with unlawful possession of a controlled

substance. The matter proceeded to a bench trial on a stipulated record, after which the trial court

found Weiss guilty of the charged crime. At sentencing, defense counsel requested that the

sentencing court waive discretionary LFOs, asserting that Weiss lacked the ability to pay the LFOs.

The sentencing court inquired about Weiss’s financial resources. Weiss told the sentencing court
No. 47942-7-II


that she (1) was not employed, (2) had not worked at a full-time job for six years, (3) was in the

process of appealing the denial of social security disability benefits, and (4) had previously worked

as a house painter but could not continue that work due to her disabilities. The sentencing court

found that Weiss did not have the present or likely future ability to pay discretionary LFOs and,

thus, declined to impose any discretionary LFOs.         The sentencing court imposed $800 in

mandatory LFOs, including $100 in DNA collection fees. Weiss appeals from the imposition of

the mandatory DNA collection fee.

                                            ANALYSIS

       RCW 43.43.75411 provides in relevant part that “[e]very sentence imposed for a crime

specified in RCW 43.43.754 must include a fee of one hundred dollars” for the collection of the

offender’s DNA sample. (Emphasis added.) Sentencing courts lack discretion to waive this DNA

collection fee. State v. Mathers, 193 Wn. App. 913, 920-21, 376 P.3d 1163 (2016), review denied,

No. 93262-0 (Wash. Sept. 28, 2016); State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).

Weiss contends that the mandatory nature of this DNA collection fee, without any consideration

of her ability to pay the fee, violates her substantive due process rights. We disagree.

       We review constitutional challenges de novo. State v. Schmeling, 191 Wn. App. 795, 798,

365 P.3d 202 (2015). We presume that a statute is constitutionally sound, and Weiss bears the

heavy burden of showing that there is no reasonable doubt that the challenged statute is

unconstitutional. Schmeling, 191 Wn. App. at 798.




1The legislature amended RCW 43.43.7541 in 2015. LAWS OF 2015, ch. 265 § 31. Because this
amendment is not relevant to the issue in this case, we cite to the current version of the statute.
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No. 47942-7-II


       Our state and federal constitutions prohibit the deprivation of life, liberty, or property

without due process of law. U.S. CONST., amends. V, XIV, § 1; WASH. CONST., art. I, § 3. “‘The

due process clause of the Fourteenth Amendment confers both procedural and substantive

protections.’” Nielsen v. Dep’t of Licensing, 177 Wn. App. 45, 52, 309 P.3d 1221 (2013) (quoting

Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006)). “Substantive due process

protects against arbitrary and capricious government action.” Amunrud, 158 Wn.2d at 218-19.

Government action violates substantive due process if the resulting deprivation of life, liberty, or

property is substantively unreasonable or is unsupported by a legitimate justification. Nielsen, 177

Wn. App. at 53.

       Weiss concedes that the mandatory DNA collection statute does not concern a fundamental

right and that our review of her constitutional challenge to the statute is under the rational basis

standard. Under the rational basis standard, we determine whether a rational relationship exists

between the challenged law and a legitimate state interest. Amunrud, 158 Wn.2d at 222. This

standard is highly deferential to the challenged law. Nielsen, 177 Wn. App. at 56.

       Weiss acknowledges the legislature’s legitimate interest in funding the collection, analysis,

and retention of convicted offenders’ DNA profiles to facilitate criminal investigations and

prosecutions, but contends that the interest is not rationally served by imposing a mandatory fee

on offenders unable to pay it. We recently rejected an argument identical to Weiss’s: that the

mandatory nature of the DNA collection fee, without any consideration of her ability to pay the

fee, violates her substantive due process rights.

       In State v. Seward, we held,

       [T]hat the DNA collection fee, the [victim penalty assessment], and the filing fee
       are rationally related to the legitimate state interests described above in two ways.

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No. 47942-7-II


        First, imposing these fees and the assessment on all felony offenders without first
        considering their ability to pay is rationally related to legitimate state interests
        because even though some offenders may be unable to pay, some will. So the
        imposition of these fees and assessments on all offenders creates funding sources
        for these purposes.
                 Second, imposing these fees and the assessment on offenders who may be
        indigent at the time of sentencing is also rationally related to funding these purposes
        because the defendant’s indigency may not always exist. We can conceive of
        situations in which an offender who is indigent at the time of sentencing will be
        able to pay the fees and assessments in the future. So it is not unreasonable to
        believe that imposing these fees and assessments on all indigent offenders would
        result in some funding for these purposes.

No. 47581-2, slip op. at 5-6 (Wash. Ct. App. Nov. 1, 2016).

        Accordingly, we affirm the imposition of the DNA collection fee.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                      JOHANSON, J.
 I concur:



 LEE, J.




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No. 47942-7-II


       BJORGEN, C.J. (concurring) — I disagreed with the majority’s substantive due process

analysis in State v. Seward, No. 47581-2, slip op. (Wash. Ct. App. Nov. 1, 2016), for the reasons

set out in my dissent in that appeal. My disagreement with that analysis continues, but, because

Seward is a published decision of this court, concur with applying it in this appeal.



                                      ______________________________________
                                      BJORGEN, C.J.




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