                                                                                                         FILED
                                                                                                         Of APPEALZ-)
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                                                                                               2013 N01 13 AM 11: 13

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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

STATE OF WASHINGTON,                                                              No. 42790 -7 -II


                                       Appellant,
                                                                              PUBLISHED OPINION
           0



ROBERTA D. MASHEK,




           WORGEN, J. —     The State appeals the trial court' s dismissal of a felony driving under the
                                                                                                              1
influence      of alcohol ( DUI) charge against      Roberta D. Mashek         under   RCW 46. 61. 502( 6).       The


State argues that ( 1) the trial court erred when it concluded that the State failed to comply with

the 15- minute observation requirement under RCW 46. 61. 506( 4)( a)( ii) and ( iii) before
                                                                          -


administering Mashek'       s   breath   alcohol   test, ( 2) the trial court erred when it concluded that


Mashek' s 1994 DUI        assault conviction under       former RCW 46. 61. 522( 1)( b) ( 1983) was not a


prior vehicular assault DUI conviction for the purposes of RCW 46. 61. 502( 6) and dismissed the


felony DUI charge, and ( 3) the trial court abused its discretion when it granted Mashek' s motion

to prohibit the State' s proposed drug recognition expert from testifying about field sobriety tests.




1 RCW 46.61. 502 has been amended twice since Mashek was charged with felony DUI under the
statute.   LAws of 2013,        ch.   293, § 2; LAws   of   2011,   ch.   293, § 2. However, the changes are not
relevant    to this court' s analysis.    Accordingly,      we cite   the current version of the statute.
No. 42790 - -II
          7



          We hold that the trial court erroneously required continuous visual observation of the

subject of a   breath   alcohol test under   RCW 46. 61. 506( 4)( a)( ii)    and ( iii).   Therefore, we reverse


and remand for the trial court to determine whether the State complied with RCW

46. 61. 506( 4)( a)( ii) and ( iii) in accordance with this opinion. We also reverse the trial court' s


dismissal of the felony DUI charge and remand for further proceedings. Finally, we affirm the

trial court' s exclusion of the State' s proposed drug recognition expert.

                                                     FACTS


          On February 6, 2011, at around 9: 00 Pm, Deputy Sheriff Jason Wecker observed a car

driving toward his patrol vehicle in the middle turn lane down Main Street in Elma, Washington.

The car drove through an intersection without turning and swerved into the lane of oncoming

traffic directly toward Wecker, who had to turn to the right to avoid hitting the car.

          Wecker pulled the car over. He contacted the car' s driver, Mashek, and noticed that her


eyes were red and droopy and he smelled intoxicants coming from her car. Mashek consented to

perform standardized field sobriety tests. After Mashek performed the tests, Wecker concluded
                                                                           Miranda2
that   she was intoxicated,   arrested   her for DUI,   and   read   her              rights. After speaking with

her attorney, Mashek consented to undergo a breath alcohol test.

          In order for a breath alcohol test to be admissible in a prosecution for DUI, the State must


present, among other elements, prima facie evidence that the person being tested did not vomit,

eat, drink, smoke, or have any foreign substances in her mouth for 15 minutes before the test.

RCW 46. 61. 506( 4)( a)( ii), (
                              iii).   During the 15 minutes before the test, Mashek was seated at a

table in the testing room with Wecker, who sat directly across from her for the majority of that


2
    Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
                                                         2
No. 42790 -7 -II



time. Before the 15- minute period began, Wecker asked Mashek if she had any foreign

substances in her mouth, and she replied that she had a tongue ring, which she subsequently

removed. Wecker did not observe Mashek eating, drinking, or smoking and there was no food or

drink in the room during the 15- minute period, but Mashek had an electronic cigarette and some

mints that Wecker did not take from her during his search. The process leading up to Mashek' s

test was videotaped, and the videotape revealed that Wecker did not visually observe Mashek for

a 3- minute period during the 15 minutes leading up to the breath test because his body was

positioned away from her while he was setting up the testing machine.

       Wecker administered two tests. The first showed a blood alcohol level of .118 grams per

milliliter, and the second showed a blood alcohol level of .116 grams per milliliter. The State

                                                               3
charged   Mashek   with
                          felony DUI,   RCW 46. 61. 502( 6),       because she had been convicted of


vehicular assault DUI under former RCW 46. 61. 522( 1)( b) in 1994.




 RCW 46. 61. 502 provides in relevant part:
          1) A person is guilty of driving while under the influence of intoxicating liquor,
       marijuana, or any drug if the person drives a vehicle within this state:
          a)  And the person has, within two hours after driving, an alcohol

       concentration of 0.08 or higher as shown by analysis of the person' s breath or
       blood made under RCW 46. 61. 506.


          5) Except as provided in subsection ( 6) of this section, a violation of this section
       is a gross misdemeanor. .
          6) It is a class C felony punishable under chapter 9. 94A RCW, or chapter 13. 40
       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. 61. 5055; or
             b) The person has ever previously been convicted of:

           ii) Vehicular assault while. under the influence of intoxicating liquor or any
       drug, RCW 46. 61. 522( 1)( b).
                                                     3
No. 42790 - -II
          7



         Mashek moved to suppress the results of the breath alcohol test because Wecker failed to

                                                                                         4
visually   observe   her for   part of   the 15- minute   period   preceding the test.       She argued that she put


her head below the desk where Wecker could not see her and that Wecker failed to subsequently

check her mouth. Mashek also argued that there were multiple occasions on which she put her


hands to her mouth and face and Wecker did not see her. The trial court granted the motion to

suppress the results of the       breath   alcohol   test. Although the trial   court   found that "[   d] uring the

observation period,      Ms. Mashek did        not put   any foreign   substances   into her   mouth,"   it concluded


that Wecker failed to comply with RCW 46. 61. 506(4)( a) because he did not observe Mashek for

a 3- minute span of the 15- minute period, and, thus, the results of the breath alcohol test were not

admissible at trial.



         On October 19, 2011, Mashek moved to ( 1) exclude the results of the breath alcohol tests

because they had previously been           suppressed, (   2) dismiss the charge of felony DUI because the

vehicular assault DUI statute under which Mashek was previously convicted differed from the

vehicular assault DUI statute in effect at the time the Legislature enacted the felony DUI statute,

and ( 3) exclude testimony of the State' s proposed drug recognition expert on field sobriety tests.

The trial court agreed with Mashek and ordered that ( 1) the State could not use the breath alcohol

test results at trial   for any   purpose; (   2) Mashek' s prior conviction for vehicular assault DUI was

not a prior vehicular assault conviction          within the meaning of RCW         46. 61. 502( 6), and, thus,


dismissed the felony DUI charge against Mashek; and ( 3) the State was prohibited from calling a

drug recognition expert to testify regarding the effects of alcohol as it related to field sobriety

4
    Mashek also argued that Wecker did not have reasonable articulable suspicion to make a traffic
stop because Mashek " could not have driven in the manner described by the officer' s report" and
that there was no probable cause for arrest because Wecker did not properly administer the field
sobriety tests. Clerk' s Papers at 10. These issues are not before us on appeal.
                                                            4
No. 42790 -7 -II



tests. The State appeals the trial court' s order excluding the breath alcohol test results,

dismissing the felony DUI charge against Mashek, and excluding the State' s proposed drug

recognition expert testimony

                                                            ANALYSIS


                                                      I. STANDARDS OF REVIEW


        We review a trial court' s order on a suppression motion to determine whether substantial


evidence supports the challenged findings of fact and whether those findings support the trial


court' s conclusions of law. State v. Bliss, 153 Wn. App. 197, 203, 222 P.3d 107 ( 2009).

Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the


finding' s   truth.   State   v.   Hill, 123 Wn. 2d 641, 644, 870 P. 2d 313 ( 1994). "         Credibility

determinations are for the trier of fact and are not subject to appellate review. We must defer to


the [ trier of fact] on issues of conflicting testimony, credibility of witnesses, and persuasiveness

of the evidence."       State      v.   Liden, 138 Wn.      App.   110, 117, 156 P. 3d 259 ( 2007) ( citation   omitted).



Unchallenged findings of fact are verities on appeal. State v. O' Neill, 148 Wn.2d 564, 571, 62


P. 3d 489 ( 2003).


        Whether RCW 46. 61. 506( 4)( x) requires continuous visual observation and whether a


vehicular assault DUI conviction under former RCW 46. 61. 522( 1)( b) is a prior vehicular assault


DUI conviction for the purposes of RCW 46.61. 502(6) are matters of statutory interpretation,

questions of law that we review de novo. State v. Haddock, 141 Wn.2d 103, 110, 3 P. 3d 733

 2000). "    In interpreting a statute, our fundamental objective is to ascertain and carry out the

legislature'   s   intent." State        v.   Gray,   174 Wn. 2d 920, 926, 280 P. 3d 1110 ( 2012). If the plain


language of the statute is unambiguous, we enforce the statute according to its plain meaning.


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No. 42790 - -II
          7



State v. Armendariz, 160 Wn.2d 106, 110, 156 P. 3d 201 ( 2007).       The plain meaning of an

undefined statutory term can be discerned from the dictionary definition of the term. Estate of

Haselwood    v.   Bremerton Ice Arena, Inc., 166 Wn.2d 489, 498, 210 P. 3d 308 ( 2009). We also


determine the plain meaning of a statutory provision from the general context of the statute,

related provisions, and the statutory scheme as a whole. State v. Jacobs, 154 Wn.2d 596, 600,

115 P. 3d 281 ( 2005).


        Because it is an evidentiary ruling, we review a trial court' s decision to admit or exclude

drug recognition expert testimony for abuse of discretion. State v. Baity, 140 Wn.2d 1, 9, 991

P. 2d 1151 ( 2000).    Thus, we reverse only if the trial court' s exercise of discretion was manifestly

unreasonable or based on untenable grounds or reasons. State v. Lormor, 172 Wn.2d 85, 94, 257


P. 3d 624 ( 2011).


                     II. OBSERVATION REQUIREMENT UNDER RCW 46. 61. 506( 4)( a)


        The State argues that the trial court erred when it concluded that Wecker failed to comply

with the observation requirements of RCW 46. 61. 506(4)( a)( ii) and ( iii) when he failed to


visually observe Mashek for 3 minutes of the 15- minute observation period. The State contends

that the officer' s observation was adequate because such observation need not be strictly visual,

but, rather, can be a combination of other senses, and because the video recording was prima

facie evidence that Mashek did not vomit, eat, drink, or smoke for 15 minutes before the test.


Mashek responds that the officer' s failure to visually observe her for 3 minutes of the

observation period constituted noncompliance with the statutory observation requirement and

that a video recording cannot be substituted for direct, visual observation of the defendant.




                                                     on
No. 42790 - -II
          7



Mashek also contends that substantial evidence does not support the trial court' s finding that she

did not put any foreign substances into her mouth. The State is correct.

         RCW 46.61. 506 governs the validity and admissibility of breath alcohol test results in

DUI   prosecutions.     Under RCW 46. 61. 506( 4)( a), a breath test performed with an instrument


approved by the state toxicologist is admissible at trial if the State " produces prima facie

evidence" of eight testing requirements. Two of those requirements are:

                     ii) The person being tested did not vomit or have anything to eat, drink, or
         smoke   for   at   least fifteen   minutes      prior to administration        of   the test; [ and]

                 iii) The person being tested did not have any foreign substances, not to
         include dental work, fixed or removable, in his or her mouth at the beginning of
         the fifteen -
                     minute observation period.


RCW 46. 61. 506( 4)( a).       For the   purposes of       RCW 46. 61. 506( 4)( a), " prima facie evidence" is


 evidence of sufficient circumstances that. would support a logical and reasonable inference of


the facts   sought   to be   proved."    RCW 46. 61. 506( 4)( b).


         In determining whether the State' s evidence is sufficient, we assume its truth and all

reasonable    inferences from it in         a   light   most   favorable to the State. RCW 46. 61. 506( 4)( b). Once


the State makes this prima facie showing, all other challenges to the breath alcohol test go to its

weight, not    its admissibility. RCW 46. 6L506( 4)( c);                     City of Seattle v. Holifield, 150 Wn. App.

213, 221, 208 P. 3d 24 ( 2009),         rev'    d   on other grounds,          170 Wn. 2d 230, 240 P. 3d 1162 ( 2010). In


addition, in order for the breath alcohol test results to be valid, the analysis must have been

 performed     according to      methods approved              by the   state toxicologist."     RCW 46. 61. 506( 3).


A. . "      Prima Facie Evidence" under RCW 46. 61. 506( 4)( a)

         Although RCW 46. 61. 506( 4)( a)( iii)                refers   to   an " observation period,"    none of the


requirements in RCW 46.61. 506( 4)( a) mandate unbroken visual observation as a prerequisite to



                                                                   W
No. 42790 - -II
          7



admissibility of breath test results at trial. Rather, the statute requires that the State present

 prima facie evidence" that the person being tested did not vomit, eat, drink, smoke, or have

foreign   substances   in her   mouth   for 15   minutes   before the test. RCW 46.61. 506( 4)( a)( ii), (
                                                                                                         iii).


          Wecker testified that Mashek did not eat, drink, or smoke during the 15- minute period .

before the breath test and that there was no food or drink in the room. The videotape of the 15


minutes preceding the breath alcohol test shows that even when Wecker was not looking at

Mashek, she did not eat, drink, smoke, or put any foreign substances in her mouth.

          Mashek nevertheless contends that substantial evidence does not support the trial court' s


finding that she did not have foreign substances in her mouth, because when she dropped her

tongue ring on the floor and momentarily ducked below the table, Wecker failed to perform a

second mouth check. Mashek, however, failed to indicate what, if anything, she put in her

mouth to invalidate the test while she was momentarily out of Wecker' s sight. She also contends

that substantial evidence does not support the trial court' s finding because she put her hands on

or near her mouth many times during the observation period. Although Mashek correctly notes

that the video recording of the observation period reveals that she touched her face and mouth

multiple times during that period, the video does not show that she put anything in her mouth.

Finally, she argues that she put a mint in her mouth before the observation period began.

However, she did not mention the mint when Wecker asked her just before the 15- minute period


began whether she had any foreign substances in her mouth. If accepted as true, Mashek' s

contention shows at most that she had a mint in her mouth at some point before the 15- minute


period    began,   a period not regulated   by   the statute.   Her   own response   to Wecker' s question
No. 42790 -7 -II



provides prima facie evidence that during the 15- minute period, she did not have a mint in her

mouth.




         The testimony in the record and the videotape of the 15- minute observation period

constituted prima facie evidence that Mashek did not vomit, eat, drink, smoke, or have foreign


substances in her mouth for 15 minutes before the test was carried out, as required by RCW

46. 61. 506( 4)( a)( ii)   and ( iii).   No more is required for admissibility of breath alcohol tests under

RCW 46. 61. 506( 4)( a).


B.       No Observation Requirements in Title 448 WAC


         Despite the absence of any specific observation requirements in RCW 46. 61. 506( 4)( a),

Mashek contends that the regulations in Title 448 WAC explicitly require a 15- minute visual

observation period by the test operator before a test will be deemed valid. Thus, Mashek argues,

the State failed to perform the test according to methods approved by the state toxicologist as

required by RCW 46. 61. 506( 3) when Wecker failed to visually observe her for 3 of the 15

minutes preceding the test. We disagree.

         WAC 448 -16 -0405          sets forth the requirements for determining whether the test subject

has a foreign substance in his or her mouth:


         Foreign substances, interference, and invalid samples.
           1) A determination as to whether a subject has a foreign substance in his or her
         mouth will be made by either an examination of the mouth or a denial by the
         person that he or she has any foreign substances in their mouth....
          2) If a subject is wearing jewelry or ornamentation pierced through their tongue,
         lips, cheek, or other soft tissues in the oral cavity, they will be required to remove
         this   prior   to conducting the breath test.          If the subject declines to remove the




5
    Mashek relies on former WAC 448 -13 -040 ( 1999) in support of her argument, but this version
of the state toxicologist' s breath alcohol test protocol was repealed in 2004. WASH. ST. REG. 04-
19 -144 ( effective Oct. 23, 2004).           Accordingly, we address the current WACs.
                                                            9
No. 42790 - -II
          7



       jewelry or ornamentation, they will be deemed to have a physical limitation
       rendering them incapable of providing a valid breath sample.

Emphasis    omitted.)   Here, before the 15- minute period began, Wecker asked Mashek if she had


any foreign substances in her mouth, and she replied that she had a tongue ring, which she

subsequently removed. Thus, Wecker complied with WAC 448 -16 -040 to determine whether

Mashek had foreign substances in her mouth before the test.


        The current regulations in chapter 448 -16 WAC do not provide protocols for ensuring

that the test subject did not vomit, eat, drink, or smoke for the 15 minutes preceding the test, and

they make no reference to an observation period. Thus, the relevant WACs provide no basis for

suppressing the breath test results.

C. "     Observation Period"


        The only reference to an observation period in the relevant statutes and regulations is the

requirement of RCW 46. 61. 506( 4)( a)( iii) that:


         t]he person being tested did not have any foreign substances, not to include
        dental work, fixed or removable, in his or her mouth at the beginning of the
        fifteen -
                minute observation period.


Nothing in this provision, however, whether read in isolation or together with the rest of RCW

46. 61. 506( 4)( a), requires continuous, unbroken visual observation of the test subject for the 15-


minute period.




        Neitber the   statutes nor   the regulations define the term " observation "; thus, we give the



term its plain meaning. Haselwood, 166 Wn.2d at 498. Armendariz, 160 Wn.2d at 110.

 Observe" means " to see or sense esp[ ecially] through directed, careful, analytic attention" and

the term " observation"   as " an act or   the   faculty   of   observing   or   taking   notice."   WEBSTER' s


THIRD NEW INTERNATIONAL DICTIONARY 1558 ( 2002).                     Thus, under its plain meaning, an

                                                           10
No. 42790 - -II
          7



individual can " observe" by seeing or other sensing. Interpreting the term to require exclusively

unbroken visual observation is contrary to its ordinary meaning.

            This conclusion is riveted more securely into place by the statute' s requirement that the

State show compliance by prima facie evidence. As noted, prima facie evidence is " evidence of

sufficient circumstances that would support a logical and reasonable inference of the facts sought


to be   proved."       RCW 46. 61. 506( 4)( b). To read the statute to require the officer to stare without


interruption at the subject would read the notion of prima facie evidence out of the statute.


            Mashek argues that the decision in Walk v. Department of Licensing, 95 Wn. App. 653,

976 P.2d 185 ( 1999),           requires a different result. In Walk, 95 Wn. App. at 658 -59, Division Three

of our court held that the purpose of former WAC 448 -13 -040 was satisfied where an officer.


other than the one operating the breath alcohol test machine observed the defendant, as long as

the observing officer communicated his findings to the testing officer. Mashek argues that Walk

requires that the observing officer visually observe the person taking the test for the entirety of

the observation period. Walk, however, merely stands for the proposition that the officer

conducting the breath alcohol test need not be the officer observing the person to be tested so

long as the requisite communication is made. Walk, 95 Wn. App. at 658 -59. Although the Walk

court      interpreted the term " observe,"      it did not discuss or hold that the term means only unbroken

visual observation. Walk, 95 Wn. App. at 657 -58. To the contrary, decisions in other

jurisdictions reaching similar issues have held that the officer is not required to stare at the

defendant for the entire observation period.6



6
    See,   e. g.,   Peterson   v. Wyoming Dep' t of Transp., Drivers' License Div., 158 P. 3d 706, 711
    Wyo. 2007) ( " The         fact that the officer may not have stared at [ the defendant] the entire time
does    not render      his   compliance with   the   mandatory   observation period   invalid. "); Bennett v.
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No. 42790 - -II
          7



         For these reasons, we hold that the observation requirement imposed by RCW

46. 61. 506( 4)( a)( ii) and ( iii) does not requite fixed, visual observation of the person to be tested


for the entire 15- minute observation period. Rather, the observation requirement may be

satisfied where the officer uses all of his senses, not just sight, to determine that the person to be


tested does not vomit, eat, drink, smoke, or have any foreign substances in her mouth for 15

minutes before the test. Accordingly, we reverse and remand to the trial court to determine

whether the State met its burden to make a prima facie showing that Mashek did not vomit, eat,

drink, smoke or have any substances in her mouth for 15 minutes before the test in accordance

with RCW 46. 61. 506( 4)( a)( ii) and ( iii).


                   III. DISMISSAL OF FELONY DUI CHARGE UNDER RCW 46. 61. 502( 6)


          The State argues that the trial court erred when it dismissed Mashek' s felony DUI charge

under    RCW 46. 61. 502( 6). For the           following    reasons,   the   State is   correct.   Generally, a violation

of   RCW 46. 61. 502( 1), prohibiting DUI,           is   a gross misdemeanor.           RCW 46. 61. 502( 5).   Its


violation is a class C felony, however, if:

           a) The person has four or more prior offenses within ten years as defined in
          RCW 46. 61. 5055; or
           b) The person has ever previously been convicted of:


Dep' t   of Transp., 147 Idaho 141, 144, 206 P. 3d 505 ( Ct.  App. 2009) ( Observation requirement
satisfied "[s] o long as the officer is continually in position to use his senses, not just sight, to
determine that the defendant did not belch, burp or vomit during the observation period....
 T] he officer need not ` stare fixedly' at the subject for the entire observation period. "); State v.
Vialpando, 89 P.3d 209, 214 ( Utah Ct. App. 2004) ( observation period does not require " the
undivided attention of           the observing officer "; thus, observation period satisfied where defendant
sat next   to   officer   in   patrol car   for 15- minute   observation period);        State v. Smith, 16 Conn. App.
156, 164 -65, 547 A. 2d 69 ( 1988) ( "[ W] e do not interpret [ the observation requirement statute] to
require that an officer fix his unswerving gaze upon a subject during each fifteen minute interval
prior to administration of a breath test. Such ari interpretation would not only be practically
impossible to perform but would allow a subject to thwart compliance with the regulation simply
by turning his head away from the observing officer. ").
                                                               12
No. 42790 - -II
          7



             i) Vehicular homicide while under the influence of intoxicating liquor or any
         drug, RCW 46.61. 520( 1)( a);
             ii) Vehicular assault while under the influence of intoxicating liquor or any
         drug, RCW 46. 61. 522( 1)( b);
               iii) An out - - tate offense comparable to the offense specified in (b)( i) or (ii)
                           of s
         of this subsection; or

               iv) A violation of this subsection ( 6) or RCW 46. 61. 504( 6).

RCW 46. 61. 502( 6).     Subsection ( 6) of RCW 46.61. 502 was effective July 1, 2007. Laws of

2006,   ch.   73, § 1.


         The State charged Mashek with felony DUI under RCW 46. 61. 502( 6) because she. was

convicted of vehicular assault DUI in 1994 under former RCW 46. 61. 522. As a preliminary

matter, Mashek argues that her 1994 conviction could not count as a " prior offense" for the


purposes of RCW 46. 61. 502( 6) because the State failed to prove that she committed the crime


while under the influence. In support of her argument, Mashek relies on the judgment and


sentence for that conviction, which states that she was convicted of vehicular assault under


former RCW 41. 61. 522 but does not specifically state that she was under the influence or cite the

specific statute for vehicular assault DUI. Although Mashek argued below that her 1994


conviction was not a " prior offense" because of amendments made to the statute after she was

convicted, she did not argue that the State failed to prove that she committed the crime while


under the influence. Generally, we will not review an issue that was not raised in the trial court.

RAP 2. 5( a).     Although there are exceptions to this rule,.Mashek fails to argue that any of them

apply here; therefore, we decline to address this argument further.

         The trial court concluded that changes to the vehicular assault DUI statute, former RCW


46. 61. 522, between Mashek' s conviction of vehicular assault DUI in 1994 and the enactment of




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No. 42790 - -II
          7



the felony DUI statute in 2007 precluded the State from using the vehicular assault conviction as

a " prior offense" for the purposes of the felony DUI statute. Former RCW 46.61. 522 provided:

        1) A person is guilty of vehicular assault if he operates or drives any vehicle:
                  a) In a reckless manner, and this conduct is the proximate cause of serious
       bodily injury to another; or
                  b) While   under     the   influence
                                                    intoxicating liquor or any drug, as
                                                         of

       defined by RCW 46. 61. 502, and this conduct is the proximate cause of serious
       bodily injury to another.
        2) " Serious bodily injury" means bodily injury which involves a substantial risk
       of death, serious permanent disfigurement, or protracted loss or impairment of the
       function of any part or organ of the body.
        3) Vehicular assault is a class C felony punishable under chapter 9A.20 RCW.

       In 1996, the Legislature amended RCW 46. 61. 522 to make vehicular assault a class B


felony, and in 2001 the Legislature replaced the " serious bodily injury" element with " substantial

bodily harm."   LAws of 1996,    ch.   199, §   8; LAws of 2001,   ch.   300, § 1.   RCW 46. 61. 522 now


provides:



        1)   A person is guilty of vehicular assault if he or she operates or drives any
       vehicle:

        a) In a reckless manner and causes substantial bodily harm to another; or
        b) While under the influence of intoxicating liquor or any drug, as defined by
       RCW 46. 61. 502, and causes substantial bodily harm to another; or
        c) With disregard for the safety of others and causes substantial bodily harm to
       another.

        2) Vehicular assault is a class B felony punishable under chapter 9A.20 RCW.

       Mashek presents two arguments why her 1994 conviction cannot be used to elevate her

present DUI conviction to a felony. First, she refers to the rule in RCW 9. 94A.525( 2)( b) and (c)

that for purposes of calculating an offender score, class B prior felony convictions will not be

counted if the offender did not commit a crime for 10 years after conviction and class C prior


felony convictions will not be counted if the offender did not commit a crime for 5 years after

conviction. Calculation of an offender score, though, is a sentencing matter; while the


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No. 42790 - -
          7 II



determination whether the defendant had previously been convicted of vehicular assault DUI is

an element of the crime of felony DUI. Thus, any difference in calculation of the offender score

between current and former RCW 46.61. 522 has no bearing on whether Mashek committed the

crime of felony DUI and does not render the statute ambiguous.

          Second, Mashek argues that her vehicular assault DUI conviction should not have


elevated her DUI conviction to a felony under RCW 46. 61. 502(6) because the level of harm the

State was required to prove when she was convicted under former RCW 46. 61. 522 was different


from that   required under     the   current version. "       Substantial     bodily harm,"   the standard in the


current statute, means " bodily injury which involves a temporary but substantial disfigurement,

or which causes a temporary but substantial loss or impairment of the function of any bodily part

or organ, or which causes a          fracture   of   any   bodily   part."   RCW 9A. 04. 110( 4)( b). "   Serious bodily

injury" the standard of the 1994 statute, leans " bodily injury which involves a substantial risk of

death, serious permanent disfigurement, or protracted loss or impairment of the function of any

part or organ of   the   body."      Former RCW 46. 61. 522( 2). "`           Bodily injury' ...   means physical



pain or   injury, illness,   or an   impairment of         physical condition."     RCW 9A.04. 110( 4)( a).


          Any showing of "serious bodily injury" required under former RCW 46. 61. 522 would

certainly meet the current requirement that the State show " substantial bodily harm."

Accordingly, the change in the level of harm required by the statute does not preclude

consideration of the 1994 conviction. Consequently, we reverse the dismissal of the felony DUI

charge.




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No. 42790 - -II
          7



                            IV. DRUG RECOGNITION EXPERT TESTIMONY


         The State also argues that the trial court abused its discretion when it excluded proposed


drug recognition expert testimony without first allowing the proposed expert to testify regarding

his or her qualifications. We disagree with the State on this point. ER 702 governs the


admissibility of expert testimony, and provides,

                 If scientific, technical, or other specialized knowledge will assist the trier
         of fact to understand the evidence or to determine a fact in issue, a witness
         qualified as an expert by knowledge, skill, experience, training, or education, may
         testify thereto in the form of an opinion or otherwise.

Thus, under ER 702, proposed drug recognition expert testimony must satisfy a two -
                                                                                  part test to

be admissible. The trial court must determine ( 1) whether the witness qualifies as an expert and


2) whether the expert' s testimony would be helpful to the trier of fact. Baity, 140 Wn.2d at 18.

 A proper foundation for [ drug recognition expert] testimony would include a description of the

 drug recognition expert]' s training, education, and experience in administering the test, together

with a   showing that the test   was   properly   administered."   Baity, 140 Wn.2d at 18.

         The State contends that the trial court abused its discretion when it failed to allow


questioning of the proposed expert to determine the expert' s credentials. Relying on Baity, 140

Wn.2d at 18, Mashek responds that because the breath alcohol test was not properly

administered, there was no proper foundation for the testimony and the trial court properly

excluded it. Both parties' assertions are factually inaccurate.

         First, there is no evidence in the record that the trial court denied the State an opportunity

to present the credentials of its proposed drug recognition expert. In fact, the State informed the

trial court about the value of the proposed drug recognition expert' s testimony in response to

Mashek' s motion to exclude it. Second, the State did not seek to introduce the drug recognition

                                                        16
No. 42790 - -II
          7



expert' s testimony to discuss Mashek' s breath alcohol test; rather, it sought to admit the

testimony to explain the results of the field sobriety tests as other evidence of intoxication after

the trial court   excluded   the   results of   the   breath   alcohol   test.. The trial court refused the



proposed expert' s testimony about the field sobriety tests because the testimony would have been

no more helpful than Wecker' s testimony about the field sobriety tests, since Wecker was trained

in administering the tests.

        Further, the State failed to show how the drug recognition expert' s testimony would have

been helpful to the jury and, thus, failed to show that the expert' s testimony was admissible

under ER 702. The State argued in response to Mashek' s motion to exclude the drug recognition

expert' s testimony that the proposed expert was " more familiar" with the field sobriety tests than

Wecker and that he would be " better" at explaining the tests to the jury than Wecker. Report of

Proceedings ( Oct. 21, 2011) at 11 - 12. But the State failed to show the trial court how the


proposed expert' s testimony would be helpful to the jury other than the bare assertion that he

would be " better" at explaining the tests than Wecker. Accordingly, the trial court reasonably

concluded that on the facts presented here, the proposed expert' s testimony would not have been

helpful to the jury. The trial court did not abuse its discretion when it excluded the evidence

under ER 702.


        We reverse the trial court' s ruling excluding the results of the breath alcohol test and

remand to the trial court to determine whether the State made a prima facie showing that Mashek

did not vomit, eat, drink, smoke or have any substances in her mouth for 15 minutes before the




                                                               17
No. 42790 -7 -II



test in   accordance with   RCW 46. 61. 506( 4)( a)( ii)   and ( iii).   We also reverse the trial court' s


dismissal of the felony DUI charge and remand for proceedings consistent with this opinion. We

affirm the trial court' s exclusion of the State' s proposed drug recognition expert.




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