Opinion
No. 56077-8-I.
August 14, 2006.
Petition for discretionary review of a decision of the Superior Court for King County, No. 04-2-24052-2, Paris K. Kallas, J., entered March 22, 2005.
Counsel for Petitioner(s), Robert W. Kosin, Office of the Attorney General, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
Counsel for Respondent(s), Walter N. Potebnya, Law Ofc Of Walter Potebnya, 18222 104th Ave NE Ste 104, Bothell, WA 98011-3491.
Reversed by unpublished per curiam opinion.
Petitioner Department of Licensing and respondent Correne E. McCord jointly move for an order granting discretionary review and reversing the decision of the superior court on RALJ appeal. Discretionary review is granted and the decision on RALJ appeal is reversed.
On June 3, 2004, McCord 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 McCord's driver's license for 90 days pursuant to RCW 46.20.308(7), but McCord requested an administrative hearing. McCord challenged the admissibility of the breath test result, arguing that the Department had failed to show that the simulator thermometer used for her breath test was `approved of' by the state toxicologist under RCW 46.61.506(4)(a)(iv). 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 McCord's arrest had not been approved by the state toxicologist.
This issue was subsequently addressed by this court in Letourneau v. Department 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, discretionary review is granted and the decision of the superior court is reversed. The Department's final order of suspension, dated September 8, 2004, is reinstated.
BAKER, ELLINGTON and GROSSE, JJ.