[No. 23735-4-III. Division Three. February 16, 2006.]
THE STATE OF WASHINGTON , Respondent , v. BRIAN LEE BENEFIEL , Appellant .
[1] Evidence - Review - Standard of Review. A trial court's evidentiary rulings are reviewed under the abuse of discretion standard. Discretion is not abused unless the trial court's ruling is manifestly unreasonable or is based on untenable grounds or reasons.
[2] Evidence - Documents - Court Documents - Judgment and Sentence - In General. Under RCW 5.44.010 , a judgment and sentence are admissible in evidence if they are certified by the clerk of the court or other custodial officer and the seal of the court is annexed. Under ER 902(d), extrinsic evidence of the authenticity of the certified copy of the judgment and sentence is not required as a condition precedent to admission. The certified copy is self-authenticating under ER 902.
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[3] Criminal Law - Right To Confront Witnesses - Federal Provision - In General. The Sixth Amendment guarantees criminal defendants the right to confront adverse witnesses.
[4] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial or Nontestimonial Statement - Test. For purposes of the Sixth Amendment right to confront adverse witnesses, the admissibility of an out-of-court statement made by an unavailable declarant does not depend on whether the defendant had a prior opportunity to cross-examine the declarant if the statement is nontestimonial. In general, testimonial statements are declarations or affirmations made for the purpose of establishing some fact and include pretrial statements that the declarant would reasonably expect to be used by the prosecuting attorney, such as affidavits, depositions, confessions, and statements taken by police officers in the course of interrogations. Nontestimonial statements include business records or statements in furtherance of a conspiracy. Whereas a testimonial statement by an unavailable declarant may be admitted only if the defendant had a prior opportunity to cross-examine the declarant, a nontestimonial statement by an unavailable declarant may be admitted if it bears adequate indicia of reliability.
[5] Criminal Law - Evidence - Hearsay - Right of Confrontation - Public Records - Certified Copy of Judgment and Sentence. A certified copy of a judgment and sentence is nontestimonial in nature and is a public record that may be admitted in evidence against a criminal defendant under RCW 5.44.040 as an exception to the rule against hearsay without violating the defendant's Sixth Amendment right to confront adverse witnesses.
[6] Criminal Law - Evidence - Hearsay - Right of Confrontation - Nonhearsay. An out-of-court statement offered in evidence for a purpose other than to prove the truth of the matter asserted is not hearsay and does not implicate the Sixth Amendment confrontation clause.
[7] Evidence - Hearsay - What Constitutes - Personal Knowledge. A witness's testimony based on his or her own personal knowledge is not hearsay.
Nature of Action: Prosecution for escape from community custody.
Superior Court: The Superior Court for Spokane County, No. 04-1-03060-0, Michael P. Price, J., on December 10, 2004, entered a judgment on a verdict of guilty.Court of Appeals: Holding that the defendant's confrontation right was not implicated by the admission of a
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certified copy of the judgment and sentence underlying the escape from community custody charge or by the testimony of a community corrections officer regarding the defendant's failure to report to the Department of Corrections after being released from custody, the court affirms the judgment.
Daniel H. Bigelow , for appellant .
Steven J. Tucker , Prosecuting Attorney, and Kevin M. Korsmo and Andrew J. Metts III , Deputies, for respondent .
¶1 BROWN, J. - Brian L. Benefiel appeals his escape from community custody conviction. He contends the trial court improperly admitted evidence of his prior judgment and sentence and testimony from his community corrections officer (CCO). Finding no error, we affirm.
FACTS
¶2 Mr. Benefiel was previously convicted of attempted second degree assault. After being released from custody, he failed to check in with his CCO as ordered. Eventually, Mr. Benefiel was arrested and charged with escape from community custody.
¶3 During trial, the State offered Mr. Benefiel's judgment and sentence for the attempted second degree assault conviction. The State first provided testimony showing the document had the "appropriate Court seal." Report of Proceedings (RP) at 9. Defense counsel objected, arguing the judgment and sentence was inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
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L. Ed. 2d 177 (2004). The court overruled the objection, allowing the judgment and sentence because it was a "court certified document" and not "testimon[ial] in nature." RP at 12.
¶4 The State asked the CCO whether he was a custodian of records for the Department of Corrections (DOC). The CCO answered affirmatively. The State then asked, "Based upon the records you have and your personal experience, did Mr. Benefiel appear after the Judgment and Sentence was sent to you?" RP at 15. Defense counsel objected under Crawford and the hearsay rule. The court overruled the objection. The CCO then testified Mr. Benefiel did not appear in his office, nor was he notified that Mr. Benefiel appeared in any other DOC office. This drew another objection based on Crawford and hearsay, which again was overruled.
¶5 The jury found Mr. Benefiel guilty as charged. He appealed.
ANALYSIS
[1]¶6 The issue is whether the trial court erred by abusing its discretion in certain evidence rulings. Mr. Benefiel contends the court erred in admitting his prior judgment and sentence and allowing the CCO to testify that he did not report to DOC after being released from custody. Evidence rulings are reviewed for abuse of discretion. In re Pers. Restraint of Davis , 152 Wn.2d 647 , 691, 101 P.3d 1 (2004). A trial court abuses discretion when its " 'decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons.' " Id. (quoting State v. Michielli , 132 Wn.2d 229 , 240, 937 P.2d 587 (1997)).
[2]¶7 Judgment and Sentence . Records and proceedings of any court are admissible in evidence if they are certified by an officer in charge of the court records and if the seal of that court is annexed. RCW 5.44.010 . Extrinsic evidence of the authenticity of a certified copy of a public record is not required as a condition precedent to admissi
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bility. ER 902(d). Such documents are considered self-authenticating and admissible. ER 902; State v. Ross , 30 Wn. App. 324 , 327, 634 P.2d 887 (1981). Nevertheless, citing Crawford , Mr. Benefiel argues admission of his prior judgment and sentence violated the confrontation clause of the Sixth Amendment because he was not allowed to cross-examine the clerk of court who attested to the document.
[3-5]¶8 The Sixth Amendment's confrontation clause guarantees a criminal defendant's right to be confronted with the witnesses against him or her. Crawford , 541 U.S. at 42. In Crawford , the United States Supreme Court examined previous Washington interpretations of the confrontation clause that allowed admission of an unavailable witness's out-of-court statement if that statement had "adequate indicia of reliability," meaning it fell within a recognized hearsay exception or bore " 'particularized guarantees of trustworthiness.' " Id. (quoting Ohio v. Roberts , 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)). Washington courts apply a nine-factor test to determine whether a particular statement bears particularized guarantees of trustworthiness - in other words, to determine whether it is reliable. Crawford , 541 U.S. at 41. This judicial determination of an out-of-court statement's reliability was at issue in Crawford .
¶9 After reviewing the historical record on the confrontation clause, Crawford rejected the reliability test for testimonial statements. Id. at 60-61. Testimonial statements are generally defined as declarations or affirmations made for the purpose of establishing some fact. Id . at 53. Examples of testimonial statements include pretrial statements the declarants would reasonably expect to be used by the prosecutor, such as affidavits, depositions, confessions, and statements taken by police officers in the course of interrogations. Id. Crawford concluded "the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id . at 53-54.
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¶10 However, Crawford recognized some hearsay evidence is admissible against a criminal defendant without implicating the defendant's confrontation rights. Id. at 55. Any written assertion made out of court and offered at trial to prove the truth of the matter is a hearsay statement. State v. Monson , 113 Wn.2d 833 , 836, 784 P.2d 485 (1989). The certified copy of the judgment and sentence here, offered to prove Mr. Benefiel had been sentenced to a period of community custody, was hearsay. See id. (a certified copy of a defendant's driving record is a hearsay statement). However, this hearsay statement is an example of a firmly rooted hearsay exception: the certified copy of a public record, RCW 5.44.040 .
¶11 Crawford specifically allowed hearsay exceptions that cover "statements that by their nature were not testimonial - for example, business records or statements in furtherance of a conspiracy." Crawford, 541 U.S. at 56. Here, the judgment and sentence is not testimonial. It is not a statement made for the purpose of establishing some fact and it does not constitute a statement the declarant would reasonably believe would be used by the prosecutor in a later trial. Id. at 53. The prior judgment and sentence was properly admitted as a hearsay exception under RCW 5.44.040 .
¶12 CCO's Testimony . Next, Mr. Benefiel argues the CCO's testimony regarding whether Mr. Benefiel contacted DOC was inadmissible under the hearsay rules and Crawford because his testimony was based on records not admitted at trial.
[6, 7]¶13 ER 801(c) provides: " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 802 renders hearsay inadmissible unless it falls within certain exceptions. Testimony based on personal knowledge is not hearsay. State v. Simmons , 63 Wn.2d 17 , 22, 385 P.2d 389 (1963). The CCO did not offer hearsay testimony. While the State questioned the CCO about DOC records regarding Mr. Benefiel, the CCO's
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ultimate testimony was based on his personal knowledge. The CCO was Mr. Benefiel's supervising officer. Mr. Benefiel was supposed to contact the CCO after being released from custody. The CCO testified Mr. Benefiel failed to contact him or any other CCO to his knowledge.
¶14 Regarding Mr. Benefiel's Crawford argument, while he did not have the opportunity to cross-examine the DOC records alluded to by the State, he did have the opportunity to cross-examine the CCO. Since the CCO testified to his personal knowledge regarding Mr. Benefiel's failure to report, and Mr. Benefiel had the opportunity to cross-examine him regarding this testimony,«1» Crawford does not apply.
¶15 In sum, the trial court had a tenable basis to overrule Mr. Benefiel's evidentiary objections. No abuse of discretion occurred in admitting Mr. Benefiel's prior judgment and sentence and the CCO's testimony regarding Mr. Benefiel's failure to report.
¶16 Affirmed.\
KATO , C.J., and SWEENEY , J., concur.
«1»Defense counsel chose not to take this opportunity and only questioned the CCO about how many hours per week he worked.
Nos. 55816-1-I; 55813-7-I. Division One. February 21, 2006.]
BRUCE LETOURNEAU , Petitioner , v. THE DEPARTMENT OF LICENSING , Respondent .
[1] Statutes - Construction - Question of Law or Fact - Review - Standard of Review. The interpretation of a statute is a question of law that is reviewed de novo.
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[2] Statutes - Construction - Legislative Intent - In General. A court's primary objective in interpreting a statute is to discern and implement the legislature's intent.
[3] Statutes - Construction - Legislative Intent - Statutory Language - Plain Meaning. In determining the legislative intent of a statute, a court first considers the statute's plain language and the ordinary meaning thereof. The plain meaning of a statute may be discerned from all that the legislature has said in the statute and related statutes that disclose legislative intent about the provision in question.
[4] Intoxicating Liquors - Automobiles - Driving While Intoxicated - Breath or Blood Test - DataMaster Test - Simulator Solution - Temperature - Thermometer "Approved" by State Toxicologist - What Constitutes. For purposes of the breath alcohol test result admissibility standard of RCW 46.61.506(4)(a), which requires that, prior to the start of the test, the temperature of the simulator solution as measured by a thermometer approved by the state toxicologist be 34 degree centigrade plus or minus 0.3 degrees centigrade, "approved" means "judged and found commendable or acceptable." "Approved" is not necessarily synonymous with "certified," which means "confirmed or attested as being true, meeting a standard, or being as represented." The statute therefore permits the state toxicologist to approve a thermometer that has never been certified or tested against a standard.
[5] Intoxicating Liquors - Automobiles - Driving While Intoxicated - Breath or Blood Test - DataMaster Test - Simulator Solution - Temperature - Thermometer "Approved" by State Toxicologist - Regulatory Certification. A thermometer certified under former WAC 448-13-035 (2003) is necessarily "approved" by the state toxicologist for purposes of the breath alcohol test result admissibility standard of RCW 46.61.506 (4)(a), which requires that, prior to the start of the test, the temperature of the simulator solution as measured by a thermometer approved by the state toxicologist be 34 degree centigrade plus or minus 0.3 degrees centigrade.
[6] Administrative Law - Rules - Construction - Retroactivity - Amendment - Presumption. An amendment to an administrative rule is presumed to operate prospectively only.
[7] Administrative Law - Rules - Construction - Retroactivity - Amendment - Test. The presumption that an amendment to an administrative rule operates prospectively only is rebutted if (1) the amendment is intended by the legislature to apply retroactively, (2) the amendment is curative, or (3) the amendment is remedial.[8] Administrative Law - Rules - Construction - Retroactivity - Amendment - Effective Date - Effect. The effective date of an amendment to an administrative rule does not prevent the rule
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from applying retroactively if the purpose of the rule is curative or remedial in nature and the amendment is intended to clarify rather than change the law.
[9] Administrative Law - Rules - Construction - Retroactivity - Amendment - Curative Amendment - What Constitutes. An amendment to an administrative rule is curative, and may be applied retroactively, if it was adopted to clarify an inconsistency in the rule.
[10] Administrative Law - Rules - Construction - Retroactivity - Amendment - Remedial Amendment - Test. An amendment to an administrative rule is remedial, and may be applied retroactively, if the amendment relates to practice, procedure, or remedies and does not affect a substantive or vested right.
[11] Intoxicating Liquors - Automobiles - Driving While Intoxicated - Breath or Blood Test - DataMaster Test - Simulator Solution - Temperature - Thermometer "Approved" by State Toxicologist - Amendment - Retroactivity. The amendment to former WAC 448-13-020 (2003) (now WAC 448-16-020 ) filed by the state toxicologist as an emergency rule on April 10, 2004, which approved the use of certain thermometers to measure the temperature of the simulator solution in breath alcohol measuring instruments, is curative and remedial and applies retroactively.
Nature of Action: A motorist sought judicial review of the administrative suspension of his driver's license for driving with a breach alcohol concentration of 0.08 or more.
Superior Court: The Superior Court for King County, No. 04-2-23161-2, Kenneth M. Comstock, J. Pro Tem., on February 4, 2005, entered a judgment upholding the license suspension.
Court of Appeals: Holding that the thermometer used to measure the temperature of the simulator solution in the machine used to test the motorist's breath alcohol concentration was approved by the state toxicologist and that the results of the motorist's breath alcohol tests were properly admitted in the administrative hearing on the license suspension, the court affirms the judgment.
Drue L. Kirby (of Fox Bowman & Duarte ), for petitioner .
Robert M. McKenna , Attorney General, and Robert W. Kosin , Assistant, for respondent .
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¶1 BAKER, J. - Bruce Letourneau appeals an order affirming the suspension of his driver's license, arguing that the administrative hearing officer erred by admitting the results of his breath tests into evidence. We are asked to decide whether a breath test simulator thermometer that was certified under former WAC 448-13-035 «1»constitutes "a thermometer approved of by the state toxicologist" under RCW 46.61.506 (4)(a)(iv). We hold that it does and affirm.
I
¶2 On April 29, 2004, a Washington State patrol trooper stopped Letourneau after he observed him driving his motorcycle over the speed limit and weaving within the traffic lane. The trooper conducted field sobriety tests, concluded that Letourneau was intoxicated, and arrested him for driving under the influence of intoxicants. At the police station, Letourneau provided two breath samples, which showed that his blood-alcohol level was over the legal limit.
¶3 The Department of Licensing (Department) suspended Letourneau's driver's license for 90 days. Letourneau requested an administrative licensing hearing, which was held in July 2004. During the hearing, Letourneau argued that his breath tests were inadmissible under RCW 46.61.506 (4)(a). This statutory provision, which pertains to the admissibility of breath tests in any civil or criminal proceeding arising out of an allegation that the defendant was driving under the influence, became effective on June 10, 2004. Letourneau argued that the Department could not show that the temperature of the simulator solution in thebreath test instrument was measured by a
«1»Former WAC 448-13-035 , repealed by WASH. ST. REG . 04-19-144 (Oct. 23, 2004).
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thermometer approved of by the state toxicologist, as required by RCW 46.61.506 (4)(a)(iv), because there was no such thing as an "approved" thermometer at the time his breath tests were administered.
¶4 The hearing officer rejected Letourneau's argument and sustained his license suspension. On review, the superior court affirmed. We granted discretionary review.
II
[1-5]¶5 We are asked to interpret the meaning of the phrase "thermometer approved of by the state toxicologist" under RCW 46.61.506 (4)(a)(iv). Statutory interpretation is a question of law, which we review de novo.«2»
¶6 In 2004, the legislature amended former RCW 46.61.506«3»and added subsection (4), which provides:
(a) A breath test performed by any instrument approved by the state toxicologist shall be admissible at trial or in an administrative proceeding if the prosecution or department produces prima facie evidence of the following:
(i) The person who performed the test was authorized to perform such test by the state toxicologist;
(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;
(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;
(iv) Prior to the start of the test, the temperature of the simulator solution as measured by a thermometer approved of by the state toxicologist was thirty-four degrees centigrade plus or minus 0.3 degrees centigrade;
(v) The internal standard test resulted in the message "verified";
«2» State v. Schultz , 146 Wn.2d 540 , 544, 48 P.3d 301 (2002).
«3»Former RCW 46.61.506 (2004), amended by LAWS OF 2004, ch. 68, § 4.
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(vi) The two breath samples agree to within plus or minus ten percent of their mean to be determined by the method approved by the state toxicologist;
(vii) The simulator external standard result did lie between .072 to .088 inclusive; and
(viii) All blank tests gave results of .000.«4»
The amendments became effective on June 10, 2004.
¶7 The relevant portion for purposes of this appeal is subsection (4)(a)(iv), which requires the Department to show that, "[p]rior to the start of the test, the temperature of the simulator solution as measured by a thermometer approved of by the state toxicologist was thirty-four degrees centigrade plus or minus 0.3 degrees centigrade."«5»The state toxicologist adopted an emergency rule, which specifically approved of the type of thermometer used to test the simulator solutions in the breath test instrument that was used to administer Letourneau's breath tests.«6»The emergency rule also became effective on June 10.
¶8 Before the 2004 amendments, the state toxicologist had established rules governing breath testing under the authority of former RCW 46.61.506 .«7»Former WAC 448-13-020«8»approved of the DataMaster instrument as the only breath test instrument to be used in Washington and required that a simulator approved of by the National Highway Traffic Safety Administration be attached to each instrument. A simulator is the component that provides the vapor sample of alcohol concentration. To function properly,
«4»RCW 46.61.506 (4)(a). Under subsection (4), challenges to the reliability or accuracy of a breath test may be considered by the fact finder and go to the weight of the evidence, but cannot be considered by the court when determining the admissibility of the test once the State has provided prima facie evidence of the factors listed in (4)(a). RCW 46.61.506 (4)(c).
«5»RCW 46.61.506 (4)(a)(iv) (emphasis added).
«6»WASH. ST. REG . 04-12-051 (June 10, 2004). The approval of breath test instruments is now found in WAC 448-16-020 .
«7»The toxicologist has adopted new rules in accordance with the amendments and repealed the former rules.
«8»Former WAC 448-13-020 , repealed by WASH. ST. REG . 04-19-144 (Oct. 23, 2004).
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the simulator solution must be maintained at a known temperature.«9»Thus, the temperature of the simulator solution must be measured by an accurate simulator thermometer. Former WAC 448-13-035 required that the thermometers used in breath test simulators be certified on an annual basis for accuracy. Letourneau was tested using a Dataaster breath test instrument equipped with a simulator that contained a mercury-in-glass thermometer. This thermometer was certified under former WAC 448-13-035 .«10»
¶9 Nevertheless, Letourneau argues that, because he was arrested and administered breath tests before June 10, the Department could not admit his breath tests into evidence because there was no such thing as a thermometer approved of by the state toxicologist at the time he provided breath samples.
¶10 In response, the Department argues that the thermometer which was used to administer Letourneau's breath tests was approved of by the state toxicologist because the toxicologist had previously certified such thermometers. The Department concedes that certification and approval have different meanings, but it argues that certification necessarily implies approval. Alternatively, he Department argues that the toxicologist's emergency rule, which amended former WAC 448-13-020 and expressly approved mercury-in-glass thermometers, applied retroactively.
¶11 We must decide whether a "thermometer approved of by the state toxicologist" under RCW 46.61.506 (4)(a)(iv) includes a thermometer that had been "certified" by the state toxicologist under former WAC 448-13-035 . The primary objective in statutory interpretation is to discern and implement the intent of the legislature.«11»The starting
«9» See former WAC 448-13-030 (22), repealed by WASH. ST. REG . 04-19-144 (Oct. 23, 2004) (defining "simulator").
«10»This thermometer is now "approved" under WAC 448-16-020 (2).
«11» State v. J.P ., 149 Wn.2d 444 , 450, 69 P.3d 318 (2003).
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point for interpreting a statute is its plain language and ordinary meaning.«12»"The plain meaning of a statute may be discerned 'from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.' "«13»
¶12 The legislature has not defined "approved" for purposes of chapter 46.61 RCW. Everyday usage of the terms "approve" and "certify" indicate that, although they are often interchangeable, they are not always synonymous. Approve means "to judge and find commendable or acceptable."«14»Certify means "to confirm or attest . . . as being true, meeting a standard, or being as represented."«15»The toxicologist may approve of a thermometer that has never been certified, or tested against a standard.
¶13 But an approved thermometer under RCW 46.61.506(4)(a)(iv) necessarily includes one that was certified under former WAC 448-13-035 . Before June 10, 2004, the state toxicologist was charged with approving the instruments for administering breath tests. A thermometer was a necessary component of a simulator and a simulator was a necessary component of a breath test instrument. Under former WAC 448-13-035 , the state toxicologist required that simulator thermometers be certified for accuracy under particular standards. In effect, any thermometer certified under former WAC 448-13-035 was approved of by the state toxicologist.
¶14 The clear intent of the legislature in adopting subsection (4) supports this interpretation. The legislature's purpose for amending former RCW 46.61.506 was to "ensure swift and certain consequences for those who drink and drive."«16»To meet this goal, it adopted standards that
«12» J.P ., 149 Wn.2d at 450 .
«13» J.P. , 149 Wn.2d at 450 (quoting Dep't of Ecology v. Campbell & Gwinn, L.L.C. , 146 Wn.2d 1 , 11, 43 P.3d 4 (2002)).
«14»WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 106 (3d ed. 1993).
«15»WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 367 (3d ed. 1993).
«16»LAWS OF 2004, ch. 68, § 1.
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govern the admissibility of breath tests in order to "provide a degree of uniformity" and "reduce the delays caused by challenges to various breath test instrument components and maintenance procedures."«17»Reducing the phrase "a thermometer approved of by the state toxicologist" to a very narrow and technical meaning does not comport with the legislature's goal of reducing delays caused by challenges to the admissibility of breath tests.
¶15 Letourneau points to the state toxicologist's emergency rule as proof that a certified thermometer under former WAC 448-13-035 was not approved of by the toxicologist for purposes of RCW 46.61.506 (4)(a)(iv). He argues that, if a certified thermometer constituted an approved thermometer, then there was no need for the toxicologist to adopt the emergency rule. We interpret the toxicologist's action as an effort to be thorough and reject Letourneau's attempt to turn the use of both a belt and suspenders into a sword.
[6, 7]¶16 Alternatively, the toxicologist's emergency rule, which approved of the type of thermometer used during Letourneau's breath testing, applied retroactively because it was curative and remedial. There is a strong presumption that statutes and rules apply prospectively only. However, this presumption may be overcome "if it is shown that (1) the legislature intended the amendment to apply retroactively, (2) the amendment is curative, or (3) the amendment is remedial."«18»The emergency rule amending former WAC 448-13-020 became effective on June 10 and did not expressly state that it was to be applied retroactively.
[8-10]¶17 But "the effective date of an administrative regulation does not prohibit the regulation from applying retroactively where the purpose of the regulation is curative or remedial in nature"«19»and it is "intended to clarify
«17»LAWS OF 2004, ch. 68, § 1.
«18» In re Pers. Restraint of Stewart , 115 Wn. App. 319 , 332, 75 P.3d 521 (2003).
«19» State v. MacKenzie , 114 Wn. App. 687 , 699, 60 P.3d 607 (2002).
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rather than change the law."«20»A regulation is curative when it is adopted to clarify an inconsistency.«21»An amendment is remedial if " 'it relates to practice, procedure or remedies, and does not affect a substantive or vested right.' "«22»
[11]¶18 In State v. Mackenzie ,«23»we held that an emergency rule adopted to address the definition of a valid and accurate breath test result was both curative and remedial because "it furthered the purpose of maintaining admissibility of breath test results after the [legislature's] changes to the legal breath alcohol concentration level."«24»Similarly, the emergency rule amending former WAC 448-13-020 was curative and remedial because it furthered the purpose of maintaining the admissibility of breath test results after the legislature's 2004 amendments. The emergency regulation was intended to clarify which thermometers were approved of by the state toxicologist, not change established law. The rule relates to the procedures for approving breath tests and their admissibility into court and does not affect the substantive rights of Letourneau.
¶19 The Department produced prima facie evidence that the temperature of the simulator solution in the breath test instrument that was used to administer Letourneau's breath tests was measured by "a thermometer approved of by the state toxicologist," as required under RCW 46.61.506(4)(a)(iv).
¶20 Affirmed.\
GROSSE and BECKER , JJ., concur.
«20» Magula v. Benton Franklin Title Co. , 131 Wn.2d 171 , 182, 930 P.2d 307 (1997).
«21» MacKenzie , 114 Wn. App. at 699 .
«22» MacKenzie , 114 Wn. App. at 700 (quoting Bayless v. Cmty. Coll. Dist. XIX , 84 Wn. App. 309 , 312, 927 P.2d 254 (1996) (internal quotation marks omitted)).
«23»114 Wn. App. 687 , 60 P.3d 607 (2002).
«24» MacKenzie , 114 Wn. App. at 700 .
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