[No. 79974-1. En Banc.]
Argued June 12, 2007. Decided December 20, 2007.
[1] Statutes — Construction — Retroactivity — Antecedent Facts — In General. A statute does not operate "retrospectively" merely because it is applied in a case arising from conduct antedating the statute's enactment or upsets expectations based on prior law. [2] Statutes — Construction — Retroactivity — Precipitating Event — In General. A statute operates prospectively when the precipitating event for its application occurs after its effective date. [3] Statutes — Construction — Retroactivity — Legislative Intent — In General. The retroactivity of a statute is a matter of legislative intent. [4] Statutes — Applicability — Constitutional Prohibition — Validity of Statute — Presumption — In General. In analyzing a claim that the application of a statute in a particular case is constitutionally prohibited, a court begins with the presumption that the statute is constitutional. [5] Statutes — Applicability — Constitutional Prohibition — Review — Standard of Review. A claim that the application of a statute in a particular case is constitutionally prohibited is reviewed de novo. [6] Criminal Law — Ex Post Facto Law — Constitutional Prohibition — Categories of Ex Post Facto Laws. There are four categories of ex post facto laws prohibited by U.S. Const. art. I, § 10 and Const. art. I, § 23: (1) laws that impose punishment for acts that were not punishable when committed, (2) laws that aggravate crimes or make crimes greater than what they were when committed, (3) laws that increase the punishment for crimes over what the law provided when the crimes were committed, and (4) laws that alter the legal rules of evidence or that require less or different testimony for a conviction than what was required when the crime was committed. [7] Criminal Law — Ex Post Facto Law — Evidentiary Change — Substantive or Procedural — Effect. Whether a law that alters a rule of evidence is a constitutionally prohibited ex post facto law as applied to a prosecution for a crime that was committed before the law was adopted depends on whether the alteration is procedural or substantive in nature. The law is a constitutionally prohibited ex post facto law if it effects a substantive change by reducing the evidentiary burden required to support a conviction and is not if it effects merely a procedural change in the admissibility of evidence. [8] Criminal Law — Ex Post Facto Law — Evidentiary Change — Reduction of Evidentiary Burden for Establishing Prima Facie Case. A change in the law that reduces the evidentiary burden required to prima facie establish the elements of a crime, thus permitting a conviction based on less evidence than previously required, is a constitutionally prohibited ex post facto law as applied to a prosecution for a crime that was committed before the change was made. [9] Intoxicating Liquors — Automobiles — Driving While Intoxicated — Breath or Blood Test — Accuracy of Machine — Validation Requirements — Reduction — Applicability — Ex Post Facto. A change in the law that reduces the requirements for validating a breath alcohol test before the test results may be admitted in evidence is a constitutionally prohibited ex post facto law as applied to a prosecution for driving while intoxicated committed before the change was made if the charge may be proved by evidence that the defendant's breath alcohol concentration at or near the time of driving exceeded legal limits. MADSEN, J., concurs by separate opinion. Nature of Action: Prosecution under a municipal ordinance for driving while intoxicated. The charge was based on a test of the defendant's breath that indicated an alcohol concentration of 0.23. At the time the defendant was charged, the municipal ordinance contained a "per se" prong establishing that a person is guilty of driving while intoxicated if the person, within two hours of driving, had an alcohol concentration of 0.08 or higher as shown by an analysis of the person's breath or blood. The ordinance further referenced the state toxicologist's standards for validating the results of a breath alcohol test that required certification of the test machine thermometer against a national standard. After the defendant was charged, the municipal ordinance was amended, as were the state toxicologist's regulations, which eliminated the thermometer certification requirement for validating a breath alcohol test in a prosecution under the ordinance. Municipal Court: The Seattle Municipal Court ruled that the amendments were substantive, not procedural, and could not be applied retroactively. Superior Court: The Superior Court for King County, No. 05-1-08111-9, Theresa B. Doyle, J., on January 30, 2006, reversed the trial court's ruling and remanded the case for further proceedings, ruling that the amendments are procedural in nature and are presumed to apply retroactively. Supreme Court: Holding that retroactive application of the amendments in a prosecution for a per se violation of the municipal ordinance is barred by the constitutional prohibition against ex post facto laws, the court reverses the decision of the superior court. Elizabeth A. Padula- (of Padula & Associates, LLC) and Theodore W. Vosk- (of Law Offices of Vosk & Velasquez), for petitioner. Moses F. Garcia- (of Stafford Frey Cooper), for respondent. En Banc ¶1 CHAMBERS, J. — In 2002, Mark Ludvigsen was arrested on suspicion of driving while intoxicated. At that time, if the city of Seattle (City) wanted to convict Ludvigsen under the "per se" prong of its former driving while intoxicated ordinance, I ¶2 Ludvigsen submitted to a breath test on February 5, 2002. He registered a 0.23 reading on the breath test and was charged with driving while intoxicated (DWI) under former Seattle Municipal Code (SMC) 11.56.020 (2002). ¶3 In Clark-Munoz, we considered the admissibility of breath tests used in Washington. In Washington, the state toxicologist promulgates standards for determining the known temperature of an alcohol vapor sample and, at the time of the Clark-Munoz decision, those standards required that the thermometer used in the breath test be certified by using a reference thermometer traceable to standards maintained by the NIST. See former WAC 448-13-035 (1991). In the Clark-Munoz cases, the State had not established at trial that the breath testing machines used on the defendants were tested on thermometers traceable to standards maintained by NIST and therefore could not establish that the thermometers were properly certified under former WAC 448-13-035. Clark-Munoz, 152 Wn.2d at 48. Holding that the State must abide by its own rules, especially when applied to vital privileges like driving, we held the breath tests were inadmissible. Id. at 50. ¶4 Following our opinion in Clark-Munoz, the state toxicologist repealed chapter (a) Mercury in glass thermometers with a scale graduated in tenths of a degree measuring a range between 33.5 and 34.5 degrees centigrade. (b) Digital thermometer system contained within the Guth 2100 wet bath simulator. ¶5 When Ludvigsen was arrested in 2002, the municipal code in effect established that a driver was guilty of a DWI if "the person has . . . an alcohol concentration of 0.08 or higher, as shown by analysis of the person's breath or blood made under the provisions of this section." Former SMC 11.56.020(A)(1)(a) (2002) (emphasis added). The "provision," referenced in subsection A, was found in subsection J, titled "Methods of Analysis." It read: Analysis of the person's blood or breath to be considered valid under the provisions of this section shall have been performed according to methods approved by the State Toxicologist and by an individual possessing a valid permit issued by the State Toxicologist for this purpose. Former SMC 11.56.020(J) (2002). However, in 2004, paralleling what happened at the state level, former SMC 11.56.020(A)(1)(a) (2002) was changed and no longer requires that analysis of breath or blood establishing a blood alcohol level of 0.08 comply with "the provisions of this section." Instead, a blood alcohol level of 0.08 must be "shown by analysis of the person's breath or blood made under RCW 46.61.506." SMC 11.56.020(A)(1)(a). ¶6 The amendment to the SMC may be largely illusory. Under both the prior and amended versions, the relevant authority for purposes of breath test analysis is the WAC. The amendment to the SMC merely altered the route to the WAC. Compliance with RCW 46.61.506(3), required under the current SMC, is the same as compliance with the provisions of the municipal code, required under the 2002 SMC, to the extent both defer to the regulations promulgated by the state toxicologist. RCW 46.61.506(3) and former SMC 11.56.020(J) use the same language. (3) Analysis of the person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or ¶7 To summarize, in 2002, when Ludvigsen was arrested, voluntarily gave his breath sample, and was charged with DWI, 1. A person is guilty of driving while under the influence of intoxicating liquor or any drug if a person drives the vehicle within the City: a. and the person has, within two (2) hours after driving, an alcohol concentration of 0.08 or higher, as shown by analysis of the person's breath or blood made under the provisions of this section; or b. while the person is under the influence of or affected by intoxicating liquor and any drug; or c. while the person is under the combined influence of or affected by intoxicating liquor and any drug. ¶8 Both parties agree that Ludvigsen's 2002 breath test was substantially similar to those considered in Clark-Munoz and that "traceability to NIST standards" could not be established. Had Ludvigsen's trial occurred in 2002, that is to say subject to the regulations in force in 2002, the breath tests should have been excluded as inadmissible for failing to comply with the WAC regulations in effect at the time. See Clark-Munoz, 152 Wn.2d at 50. However, Ludvigsen did not go to trial until 2005, after the statutory and administrative meaning of a valid test changed. ¶9 At his 2005 trial, Ludvigsen moved to suppress the results of the breath test he took in 2002. He argued the admissibility of the test was governed by former chapter ¶10 The City appealed to the superior court. The superior court reversed, concluding that RCW 46.61.506(3) and chapter II 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Calder, 3 U.S. (3 Dall.) at 390. The fourth category, Ludvigsen argues, is at issue in this case. The United States Supreme Court in Carmell explored this category in depth. There Justice Stevens explained that the paradigmatic example of the fourth category was the case of Sir John Fenwick. Carmell, 529 U.S. at 526. The case was cited by Justice Chase, author of Calder, and by a leading scholar on the English common law, Richard Wooddeson, whose treatise Chase relied on. Id. at 526, 522. ¶14 Sir John Fenwick conspired with a group of Jacobin loyalists who sought to overthrow King William III of England. Id. at 526 (citing 9 THOMAS MACAULAY, HISTORY OF ENGLAND 31-32 (1899)). Several members of this conspiracy revealed the plan to King William, who had the alleged plotters, including Fenwick, arrested. Id. (citing 9 MACAULAY, supra, at 122-25). Only two witnesses had sufficient knowledge of Fenwick's involvement to testify against him. Id. (citing 9 MACAULAY, supra, at 170-71). At the time, by law a British subject could not be convicted of high treason without two witnesses. Id. at 526-27 (citing An Act for Regulateing of Tryals in Cases of Treason and Misprision of Treason, 7 & 8 Will. III, ch. 3, § 2 (1695-1696), in 7 STATUTES OF THE REALM 6 (reprint 1963)). Fenwick, or rather the blade of Fenwick's agent, convinced one of the witnesses to flee to France and thus he was not available to testify. Id. at 528 n.16 (citing 9 MACAULAY, supra, at 194-95). ¶15 The Crown was left with only one prosecution witness. The House of Commons passed a law repealing the two-witness rule. Fenwick was convicted and beheaded. Id. at 529 (citing 9 MACAULAY, supra, at 214-27; An Act to Attaint Sir John Fenwick Baronet of High Treason, 8 Will. III., ch. 4 (1696)). The new law, Chase and Wooddeson observed, exemplified the fourth category of ex post facto laws. Id. at 526. The amended law altered the required evidence necessary to convict Fenwick. The law did not invent a new crime, nor enhance the punishment for an existing crime, but was nevertheless an ex post facto law because it reduced the quantum of evidence the State needed to present to sustain a conviction. ¶16 The United States Supreme Court found a modern example of the fourth category in Carmell. Carmell sexually abused his stepdaughter for many years. Id. at 516. Carmell's criminal conduct occurred when under Texas law a defendant could not be convicted of sexual assault based solely on the victim's testimony, unless the victim reported the crime within six months. Id. at 517 (quoting TEX. CRIM. PROC. CODE ANN., art. 38.07 (Vernon 1983)). However, a conviction could be based solely on such a victim's testimony if the victim was under 14 years of age. In 4 of the 15 separate counts, the victim was both over 14 years old and silent for more than the statutory six months. Id. at 519. ¶17 Between the offense and trial, the Texas legislature amended the exception to the six month outcry rule, extending it to all victims under the age of 18. Id. at 518. The only evidence against Carmell was the testimony of the victim. Id. at 519. The trial court applied the more recent law, permitting Carmell's conviction based solely on the victim's testimony. Had the court applied the former law, Carmell could not have been convicted because the victim's testimony was legally insufficient to support a conviction under the statute. Id. The Supreme Court held that the amendments could not be applied to offenses committed before their effective date without violating the ex post facto clause. Id. at 552. The Court observed that "the circumstances of petitioner's case parallel those of Fenwick's case 300 years earlier . . . . Texas' retrospective application of the amendment . . . permitted petitioner to be convicted with less than the previously required quantum of evidence." Id. at 530-31. ¶20 The difference between "ordinary" rules of evidence and the alterations in the rules of evidence that Justice Chase spoke of in his "4th category" is their impact on the sufficiency of evidence necessary to convict. Justice Stevens explained that "ordinary" rules of evidence do not implicate ex post facto concerns because "they do not concern whether the admissible evidence is sufficient to overcome the presumption [of innocence]." Id. Thus, the issue is whether the WAC amendments changed ordinary rules of evidence or changed the evidence necessary to convict Ludvigsen of a DWI. ¶22 In 2002, to prove a violation under subsection (A)(1)(a), the City was required to show that the defendant drove a vehicle and, within two hours, took a breath test showing a 0.08 alcohol level. To do this, the City had to prove the test was on a valid breath testing machine. See Clark-Munoz, 152 Wn.2d at 44. To prove the test was valid, the City had to prove compliance with "the provisions of this section," i.e., the methods approved by the state toxicologist in the WAC. Former SMC 11.56.020(A)(1)(a), (J). The subsequent change reduced the quantum of evidence to establish a prima facie case and to overcome the presumption of innocence. ¶23 The City responds that even if applying amended procedures violates the ex post facto clause, the breath test evidence is not conclusive, and that the City and Ludvigsen may still debate before the jury the reliability of the uncertified breath test. That is hardly solace to Ludvigsen and does not remedy the ex post facto violation. Ludvigsen may argue to the jury that breath tests are more reliable if certified, but such a case under the 2002 laws would not have even gone to trial. He was entitled to a dismissal. Sir Fenwick may have been able to argue that two witnesses are more reliable than one, but the offense to the ex post facto clause derives from denying Fenwick the dismissal the law demanded before the law was amended. Ludvigsen was entitled to a dismissal because the City failed to overcome its own requirement for evidence sufficient to convict. The City may not, after the fact, change the requirement. ¶24 The City also responds that the amendments did no more than expand the scope of admissible evidence. Relying on Hopt v. Territory of Utah, 110 U.S. 574, 589, 4 S. Ct. 202, 28 L. Ed. 262 (1884), the City suggests the amendments are, quoting Hopt, akin to statutes that "simply enlarge the class of persons who may be competent to testify in criminal cases." We disagree with this characterization. While it is true the amendments govern the admissibility of evidence, of greater significance is what they take away. See City of Fircrest v. Jensen, ¶25 We conclude the application of the 2004 DWI amendments, redefining a "valid" test, to Ludvigsen's 2002 criminal conduct violates the ex post facto clause. The 2002 definition, found in former chapter III ¶26 The 2004 amendments lower the quantum of evidence necessary to convict Ludvigsen in violation of the ex post facto clause. We reverse the superior court and remand for proceedings consistent with this opinion. ALEXANDER, C.J., and C. JOHNSON, SANDERS, BRIDGE, OWENS, FAIRHURST, and J.M. JOHNSON, JJ., concur. ¶27 MADSEN, J. (concurring) — I agree with the majority that the regulations in effect at the time of Ludvigsen's breath test apply in determining its validity. This result is compelled by a plain reading of the statute, which provides a breath test "shall have been performed according to methods approved by the state toxicologist." RCW 46.61.506(3) (emphasis added). ¶28 I write separately to observe the result in Clark-Munoz, and here, was compelled by the unusual circumstance that the toxicologist incorporated the NIST traceability requirement into the regulation defining a valid breath test. The insertion of the NIST traceability requirement was unusual in that, previously, the regulation defining a valid test pertained only to standards that must be met during the actual administration of the test and did not include tangential machine maintenance procedures. See City of Seattle v. Allison, 148 Wn.2d 75, 83, 59 P.3d 85 (2002) (discussing foundational requirements under former regulations). Once the NIST traceability requirement became part of the regulation defining a valid test, however, the State was required to prove compliance in order to establish the test's validity, following this court's decisions in Cannon and Clark-Munoz. ¶29 The majority's analysis troubles me because while it recognizes the State no longer must prove NIST traceability, it appears to perpetuate the notion the State must prove compliance with other machine maintenance protocols in order to establish the validity of a test result. This is inconsistent with the legislature's clear intent to remove barriers to effective enforcement of our drunk driving laws by disallowing admissibility challenges based on technical deficiencies having no effect on the accuracy of a test result. See LAWS OF 2004, ch. 68, § 1. "To accomplish this goal, the legislature adopts standards governing the admissibility of tests of a person's blood or breath. These standards will provide a degree of uniformity that is currently lacking, and will reduce the delays caused by challenges to various breath test instrument components and maintenance procedures. Such challenges, while allowed, will no longer go to admissibility of test results. Instead, such challenges are to be considered by the finder of fact in deciding what weight to place upon an admitted blood or breath test result." LAWS OF 2004, ch. 68, § 1. ANALYSIS ¶30 Before Clark-Munoz, the touchstone for this court in evaluating the admissibility and validity of a breath test result was whether the State provided adequate assurance of the reliability and accuracy of the test. Thus, in State v. Baker, 56 Wn.2d 846, 852, 355 P.2d 806 (1960), this court derived its original foundational requirements from assertions by the State's experts that a breath test is "wholly unreliable" unless (1) the machine was properly checked and in proper working order at the time of the test, (2) the correct chemicals were used, (3) the test subject had nothing in his or her mouth at the time and had not ingested anything within 15 minutes before taking the test, and (4) a properly trained operator administered the test in the proper manner. ¶31 Following Baker, this court consistently held once the State presents prima facie evidence of the foundational requirements, any challenges to the reliability and accuracy of the test go to the weight of the test result, not its admissibility. Allison, 148 Wn.2d at 86 (breath test ticket satisfies foundational requirements; "arguments as to the reliability of the particular test results are questions for the jury"); State v. Wittenbarger, 124 Wn.2d 467, 476, 880 P.2d 517 (1994) (defendants may challenge reliability of breath tests through cross-examination, expert testimony, and independent tests); State v. Straka, 116 Wn.2d 859, 875, 810 P.2d 888 (1991) (deviations from procedures for evaluating and certifying the machines, and for mixing the simulator solution, may be introduced to refute the accuracy and reliability of the test results but do not bar its admissibility); State v. Brayman, 110 Wn.2d 183, 192, 751 P.2d 294 (1988) ("[t]he defendant may introduce evidence refuting the accuracy and reliability of the test reading"); State v. Peterson, 100 Wn.2d 788, 791-92, 674 P.2d 1251 (1984) ("[a]ny challenge to the reliability of the Breathalyzer reading goes to its weight rather than to its admissibility"; declining to adopt more stringent foundational requirements following adoption of the per se offense); City of Bremerton v. Osborne, 66 Wn.2d 281, 282, 401 P.2d 973 (1965) (challenges to the operator's qualifications and sufficiency of machine maintenance procedures go to weight rather than admissibility); Baker, 56 Wn.2d at 853-54 (State's failure to use a reference thermometer to calibrate Breathalyzer chamber and test ampoule does not bar admission of test result where there is no indication the machine thermometer malfunctioned). ¶32 The state toxicologist codified the Baker foundational requirements following the adoption of the implied consent statute, which provides a breath test is valid if performed "according to methods approved by the state toxicologist." RCW 46.61.506(3); Brayman, 110 Wn.2d at 183-84; State v. Franco, 96 Wn.2d 816, 819-20, 639 P.2d 1320 (1982). ¶33 After the Breathalyzer was replaced with the BAC Verifier DataMaster (DataMaster), the toxicologist adopted a streamlined set of breath test regulations, revised its recordkeeping policies, and formulated the bulk of the machine maintenance and simulator solution protocols as internal policies and procedures rather than formal administrative rules. Defendants challenged the changes as embodying a "prosecutorial bias" designed to facilitate convictions. Wittenbarger, 124 Wn.2d at 477. This court rejected the challenges, after finding the new regulations, policies, and procedures sufficiently assured the accuracy and reliability of breath test results. Wittenbarger, 124 Wn.2d 467 (State not required to preserve detailed machine maintenance records); Straka, 116 Wn.2d 859 (State not required to preserve invalid test messages); State v. Ford, 110 Wn.2d 827, 755 P.2d 806 (1988) (affirming toxicologist's approval of DataMaster); see also State v. Schulze, 116 Wn.2d 154, 804 P.2d 566 (1991) (toxicologist need not adopt a " 'cookbook' " of protocols and procedures for administering alcohol concentration tests but may, instead, adopt general criteria). ¶34 In evaluating the propriety of the changes, this court stated the judiciary's "ultimate concern" is that the approved methods "result in an accurate test, competently administered, so that a defendant is assured that the test results do in fact reflect a reliable and accurate measure of his or her breath content." Ford, 110 Wn.2d at 833. ¶35 In approving the streamlined regulations, this court observed the DataMaster, unlike the Breathalyzer, is self-certifying. Wittenbarger, 124 Wn.2d at 483. Thus, the breath test ticket itself is a "crucial document" that evidences the machine was operating properly on a particular occasion. Id.; see also Allison, 148 Wn.2d at 83 (breath test ticket provides prima facie evidence of compliance with approved breath test procedures). ¶36 Importantly, the "relevant procedures" for determining whether a breath test was performed " ' "according to methods approved by the state toxicologist" ' " are those pertaining to the actual administration of the test. Allison, 148 Wn.2d at 80 (emphasis omitted) (quoting Ford, 110 Wn.2d at 833 (quoting RCW 46.61.506(3))). ¶37 The toxicologist adopted a separate set of regulations, internal policies, and procedures relating to machine maintenance and the preparation of the simulator solution used in the test. See former WAC 448-13-110, .170, .080, and .160 (2001). Proof of compliance with this set of regulations was not a condition precedent to admissibility. Wittenbarger, 124 Wn.2d at 489-90; State v. Mee Hui Kim, 134 Wn. App. 27, 139 P.3d 354 (2006); Smith v. Dep't of Licensing, 88 Wn. App. 875, 944 P.2d 1117 (1997). Although "approved" by the toxicologist, these protocols and procedures represent best practices that exceed the minimum requirements that must be met to establish the admissibility and validity of a test result. ¶38 The thermometer certification requirement became part of the regulation defining a valid test in 2001. Under former WAC 448-13-040 (1999), the operator may not proceed with the test unless the temperature of the simulator solution is "thirty-four degrees centigrade plus or minus 0.2 degrees centigrade." As proof of compliance with the requirement, the State presented evidence the breath test operator visually confirmed the temperature was within this range by reading the thermometer attached to the simulator, then entering "yes" in response to a question on the DataMaster. Allison, 148 Wn.2d at 82-83. Some defendants successfully moved to suppress breath tests results on the ground the State did not sufficiently establish compliance with the regulation. They argued, and trial courts agreed, the State must prove the actual temperature was within this required range, and that such proof was impossible due to a thermometer variance of 0.1 centigrade. Id. at 78. This court reversed the suppression rulings, interpreting the criterion as requiring proof the operator visually confirmed the thermometer reading, not proof of the actual temperature. ¶39 However, before this court decided Allison, the toxicologist amended the regulation to clarify his intention. Wash. St. Reg. 01-17-009 (Sept. 2, 2001). The amended regulation provided, "the operator must verify" the temperature is within the required range, using a thermometer "certified per WAC 448-13-035." Former WAC 448-13-040 (Supp. 2002). Former WAC 448-13-035 (Supp. 2002) required the annual certification of simulator thermometers "using a reference thermometer traceable to standards maintained by the National Institute of Standards and Testing (NIST)." ¶40 In Cannon, this court concluded former WAC 448-13-040 required the State to prove thermometer certification in order to establish the validity of the breath test, rejecting the State's argument that "certified per WAC 448-13-035" was merely a descriptive phrase that did not add to the State's foundational burden. Cannon, 147 Wn.2d at 59. Thus, for the first time, proof of compliance with a specific machine maintenance regulation became a foundational requirement. ¶41 In Clark-Munoz, this court shifted focus from accuracy and reliability to "fair play." Based on the principle the State must "abide by its own rules," this court held breath test results were invalid, as a matter of law, even though the record was devoid of evidence that noncompliance with the thermometer traceability requirement affected the accuracy or reliability of any breath test result. Clark-Munoz, 152 Wn.2d at 50. Compare Wittenbarger, 124 Wn.2d at 483 (failure to comply with regulation requiring periodic certification of testing machine did not require suppression of test results made on a DataMaster, which, unlike the older Breathalyzer, is self-certifying); City of Seattle v. Rainwater, 86 Wn.2d 567, 546 P.2d 450 (1976) (failure to follow one and one-half minute waiting period at step 7 of new 11 step procedure did not invalidate a test made on an older model machine where the evidence showed the deviation had no effect on an accurate reading); compare Baker, 56 Wn.2d at 852-53 (observation of test subject for only 14 minutes invalidated test where State's expert stated test is "wholly unreliable" absent at least a 15 minute waiting period). ¶42 In response to Clark-Munoz, the legislature amended the drunk driving statute to mandate that breath tests are admissible when the State produces prima facie evidence of compliance with a codified set of foundational requirements. LAWS OF 2004, ch. 68, § 4. The 2004 amendment was intended to eliminate challenges to breath test admissibility based on technical deficiencies not shown to adversely affect the accuracy of the result. City of Fircrest v. Jensen, ¶43 As amended in 2004, RCW 46.61.506(4) prohibits the suppression of breath test results based on technical deficiencies that do not adversely affect the accuracy or reliability of the test result. Breath tests now are treated like other scientific evidence: once the State satisfies the foundational requirements, test results generally are admissible. Jensen, CONCLUSION ¶44 Following Cannon and Clark-Munoz, the State's failure to prove compliance with the thermometer certification protocol renders Ludvigsen's breath test invalid as a matter of law. Thus, I concur in the result. ¶45 However, our legislature has now mandated that breath test results will be suppressed due to procedural deficiencies only if shown to adversely affect the accuracy or reliability of a breath test. Once the State produces prima facie evidence of compliance with the statutory foundational requirements, breath test results are admissible, with all other challenges to the test's accuracy or reliability going to the weight of the evidence. See ER 401, 402, 403, 702.