[No. 61679-0-I. Division One. May 26, 2009.]
Thomas A. Carr, City Attorney, and Mary E. Lynch, Assistant, for petitioner. Joshua S. Schaer and Andrew R. Elliott (of Law Offices of James Egan, PLLC) and Michael E. Harbeson, for respondents. Authored by J. Robert Leach. Concurring: Ann Schindler, Marlin Appelwick. ¶1 LEACH, J. -- This case addresses whether suppression of evidence is an available remedy under CrRLJ 8.3(b) and whether the prosecution may obtain a writ of review to correct errors of law made by a court of limited jurisdiction. We hold suppression of evidence is not an available remedy under CrRLJ 8.3(b). We also hold that the writ is available to correct errors of law and that the superior court erred in denying the writ. Therefore, we reverse. Background ¶2 In 2008, respondents Matthew Jacob and Jacob Culley were each arrested and charged with driving while under the influence of alcohol (DUI). Each submitted to breath tests under RCW 46.20.308 and later moved to suppress the breath test results because Ann Marie Gordon, the former manager of the Washington State Toxicology Laboratory, was listed as one of the toxicologists who tested and certified the simulator solution used in their breath tests. Respondents alleged that Gordon had signed false and misleading simulator solution certifications, certifying that she had tested simulator external standard solutions that she had not in fact tested. ¶3 The issue of misconduct in the state toxicology lab was litigated before the Seattle Municipal Court in City of Seattle v. Kennedy. ¶4 On March 11, 2008, the Honorable George W. Holifield entered an order in Kennedy on the defendants' motion, pursuant to CrRLJ 8.3(b), for an order dismissing their cases or, in the alternative, suppressing the results of their breath tests. This order suppressed all evidence of breath tests conducted with simulator solutions certified by Gordon. The municipal court concluded that the City could not establish compliance with RCW 46.61.506 for any breath test using a simulator external standard solution allegedly tested by Gordon. The municipal court ruled that where suppression of evidence will eliminate the prejudice caused by governmental misconduct, suppression is an appropriate alternative remedy to dismissal under CrRLJ 8.3(b). ¶5 The City sought a statutory writ of review in King County Superior Court, arguing that suppression of evidence is not an available remedy under CrRLJ 8.3. The superior court held that the municipal court's ruling was "clear legal error" but denied the writ. On May 22, 2008, a commissioner of this court granted an emergency stay of the criminal proceedings pending a decision on the City's motion for discretionary review. On July 14, 2008, a commissioner of this court granted discretionary review of the superior court's order denying the writ and the municipal court's order suppressing evidence. In granting discretionary review, the commissioner ordered that the earlier stay remain in effect until further order of this court. Suppression under CrRLJ 8.3(b) [1-3] ¶6 We review a lower court's interpretation of a court rule de novo. [4, 5] ¶7 CrRLJ 8.3(b) authorizes a court of limited jurisdiction to dismiss a criminal prosecution where governmental misconduct prejudices the rights of an accused: The court, in the furtherance of justice after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. The court shall set forth its reasons in a written order. CrRLJ 8.3(b) is clear and unambiguous. Dismissal is the sole remedy authorized by CrRLJ 8.3(b) for governmental misconduct. ¶8 Respondent Matthew Jacob argues that suppression is an available remedy for governmental misconduct under CrRLJ 8.3(b) despite the fact that the rule does not expressly allow it. However, none of the cases he cites holds that CrRLJ 8.3 or its superior court counterpart, CrR 8.3, authorizes suppression of evidence where there is no independent legal authority for suppression. ¶9 Jacob argues that suppression rather than dismissal is appropriate in all cases where suppression of evidence will eliminate any prejudice caused by governmental misconduct. In City of Seattle v. Orwick, ¶10 Our Supreme Court has also held that dismissal under CrRLJ 8.3(b) was not warranted where suppression was available to exclude evidence obtained by the government during an illegal search. In State v. Marks, ¶11 The common lesson from Orwick and Marks is that where suppression is available as a remedy and will eliminate the prejudice caused by governmental misconduct, dismissal under CrRLJ 8.3(b) is inappropriate. However, these cases do not hold that suppression is an alternative remedy to dismissal under CrRLJ 8.3(b). In promulgating CrRLJ 8.3(b), the Supreme Court could have provided that a court may fashion an appropriate remedy to eliminate prejudice from governmental misconduct. However, the Supreme Court instead provided only that a court may dismiss a case if the accused has been prejudiced by governmental misconduct. ¶12 Jacob further argues that State v. Busig ¶13 As discussed above, existing case law is consistent with our conclusion that dismissal should not be used as a remedy if suppression is available and will eliminate any prejudice caused by the misconduct. However, the ground for suppressing evidence must be an independent common law or statutory ground; it is not available under CrRLJ 8.3(b). Here, no independent ground for suppressing the breath test evidence was argued. ¶14 While this court may affirm on any ground supported by the record, we find no basis for affirming the municipal court's ruling in this case. The admissibility of breath test evidence is governed by RCW 46.61.506(4), which provides that breath test evidence is admissible if the prosecution produces prima facie evidence of eight factors regarding the accuracy of the test, delineated in subsection (4)(a). After this prima facie showing is made, all other challenges to the breath test evidence go to the weight of the evidence, not its admissibility. ¶15 A trial court may exclude breath test evidence if it fails to comply with rules of evidence. [6] ¶16 Moreover, for Jacob to be entitled to any remedy, he must show prejudice. In Orwick, our Supreme Court held that the defendant was not entitled to dismissal or suppression because he was not prejudiced by the governmental misconduct. ¶17 In summary, suppression is not expressly authorized by CrRLJ 8.3(b) as an alternative to dismissal for governmental misconduct that materially prejudices a defendant. Here, the trial court erred by ordering suppression as an alternative to dismissal under CrRLJ 8.3(b) without having an independent legal basis for doing so. Motion To Vacate Culley's Prosecution Disposition ¶18 On December 29, 2008, respondent Culley appeared for a pretrial hearing in municipal court. At that time, the City entered into a stipulation and order with Culley to continue his case for 24 months and to reduce the DUI charge to first degree negligent driving if Culley met certain conditions described in the agreement during that time. The stipulation and order was entered by Judge E. Durham in municipal court. A week later, on January 6, 2009, the City requested, and the municipal court granted, a hearing on its motion to vacate the agreement because it was a wrongful entry of a disposition contrary to the stay of proceedings. The motion to vacate was heard by the municipal court on January 22, 2009, and denied. On January 28, 2009, the City filed a motion in this court to enforce the May 22, 2008, stay of proceedings, which would effectively relieve the City from performing its agreement with Culley. ¶19 The City argues that the municipal court lacked authority to enter the December 29, 2008, order because of the stay of proceedings ordered by this court. RAP 7.2(a) provides: Generally. After review is accepted by the appellate court, the trial court has authority to act in a case only to the extent provided in this rule, unless the appellate court limits or expands that authority as provided in rule 8.3. Furthermore, RAP 7.2(e) applies to the authority of the trial court to modify a judgment or a motion after the appellate court has accepted review. If the trial court determination will change a decision then being reviewed by the appellate court, the permission of the appellate court must be obtained prior to the formal entry of the trial court decision. A party should seek the required permission by motion. The municipal court's entry of the stipulation and order continuing the prosecution and amending the charges made this court's review of Judge Holifield's order moot as to Culley. [7] ¶20 The City entered an agreement with Culley to continue his case and amend the charges in exchange for Culley stipulating to certain conditions, including the admissibility of all evidence against him. The City asserts that the order incorporating its agreement should be vacated because the attorney who appeared on behalf of the City at the pretrial hearing and made the agreement with Culley was not the attorney of record and was not authorized to make the agreement with Culley. In our view, it would not promote justice to allow the City to rescind an agreement it reached with a defendant who negotiated in good faith with an attorney representing the City at a hearing the defendant was required to attend. Whether a prosecutor appearing on behalf of the City negotiates an agreement with a particular defendant is entirely within the City's control. [8] ¶21 We agree that one of the parties should have obtained permission from this court before the trial court formally entered the stipulation and order. However, we construe the Rules of Appellate Procedure liberally to promote justice and may waive or alter those rules in order to serve the ends of justice. ¶22 Under these circumstances, we do not believe the ends of justice are served by relieving the City from its obligations under the agreement it made with Culley. We therefore deny the City relief from the stipulation and order, which is dispositive of Culley's case. Availability of Writ of Review ¶23 The City argues that the superior court erred in denying its petition for a writ of review. We agree. [9] ¶24 The writ may be granted only when an inferior tribunal has exceeded its jurisdiction or acted illegally and there is no adequate remedy at law. RCW 7.16.040 provides: A writ of review shall be granted by any court, except a municipal or district court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law. The superior court may grant a writ of review only if (1) the municipal or district court exceeded its jurisdiction or acted illegally and (2) there is no appeal or adequate remedy at law. ¶25 Here, the superior court's ruling denying the writ is ambiguous. The court stated, "Motion for Writ of Review is Denied. The Court finds that trial court's ruling is a clear legal error. The City has failed to meet its burden." It is unclear what burden the superior court believed the City failed to meet. Either the superior court erroneously believed the trial court's clear legal error was insufficient to satisfy the first prong of RCW 7.16.040 or the superior court believed that the City failed to show it did not have another adequate remedy at law. ¶26 As discussed above, the trial court acted illegally when it ordered suppression under CrRLJ 8.3(b). Thus, the first element of RCW 7.16.040 has been met. Jacob argues that under Commanda v. Cary, [10] ¶27 Jacob also argues that the City has other remedies at law and thus fails to satisfy the second prong of the writ statute. He first argues that the City failed to pursue an available remedy of direct appeal under RALJ 2.2. However, a direct appeal under RALJ 2.2 was not available here because the City concedes that it could have proceeded to trial without the breath test evidence. RALJ 2.2(c)(2) allows direct appeal from "[a] pretrial order suppressing evidence, if the trial court expressly finds that the practical effect of the order is to terminate the case." Here, as in Keene, the City could not have sought a finality ruling under RALJ 2.2 in good faith because the City could proceed to prosecute respondents without the breath test evidence. [11] ¶28 Jacob next argues that to go forward without the breath test evidence is a "plain, speedy, and adequate remedy" available to the City. However, going forward with the prosecution is not a remedy because it affords the City no opportunity to correct the trial court's error of law. If the City were to prevail, it would have no right to appeal the trial court's error because a party has no right to directly appeal from a favorable verdict. [12] ¶29 Finally, Jacob argues that there are other adequate remedies available to the City that cannot be ascertained on the record before this court, although he fails to suggest what those remedies may be. In Keene, the superior court held that the City was not without a remedy because it could cross-appeal the trial court's evidentiary rulings if the defendant were to be found guilty and appeal. ¶30 Because the writ of review is the only speedy and adequate mechanism for reviewing the trial court's error that is available to the City, we hold that the superior court erred in denying the writ. Conclusion ¶31 The stay of proceedings previously ordered by this court is lifted and this matter is reversed and remanded for further proceedings consistent with this opinion. SCHINDLER, C.J., and APPELWICK, J., concur.