Opinion
No. 56414-5-I.
December 11, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-2-26429-4, Carol A. Schapira, J., entered May 20, 2005.
Counsel for Petitioner(s), Jacqueline Db Walker, Office of Attorney General, Seattle, WA.
Counsel for Respondent(s), Harvey S. Grad, Attorney at Law, Renton, WA.
Reversed by unpublished per curiam opinion.
Petitioner Department of Licensing and respondent Eugene Borisovich Lunoff jointly move for an order reversing the decision of the superior court on RALJ appeal. The decision on RALJ appeal is reversed. On May 29, 2004, Lunoff was arrested for driving under the influence of intoxicants. A breath test indicated an alcohol concentration of greater than the legal limit of .08. The Department suspended Lunoff's driver's license and Lunoff requested an administrative hearing. Lunoff challenged the admissibility of the breath test result, arguing that the Department had failed to show that the simulator thermometer used for his breath test was "approved of" by the state toxicologist. The hearing officer rejected this argument and sustained the suspension. On RALJ appeal, the superior court reversed the suspension because the thermometer in use at the time of Lunoff's arrest had not been approved by the state toxicologist.
This issue was subsequently addressed by this court in Letourneau v. Dep't of Licensing, 131 Wn. App. 657, 128 P.3d 647 (2006). In Letourneau, this court held that the Department had "produced prima facie evidence that the temperature of the simulator solution in the breath test instrument . . . was measured by `a thermometer approved of by the state toxicologist,' as required under RCW 46.61.506(4)(a)(iv)." Letourneau, 131 Wn. App. at 666.
The decision of the superior court in this case conflicts with Letourneau. Accordingly, the decision of the superior court is reversed. The Department's final order of suspension, dated September 8, 2004, is reinstated with no award of costs to either party.
For the court:
H Joseph Coleman, Susan Agid, Concurring.