source: Caselaw Access Project

author: Korsmo, J. Lawrence-Berrey, C.J. (dissenting)

license: Public Domain

text:
    STATE of Washington, Respondent, v. Thomas J. NELSON, Petitioner.
    No. 35273-1-III
    Court of Appeals of Washington, Division 3.
    FILED FEBRUARY 14, 2019 AS AMENDED FEBRUARY 19, 2019
    PUBLISHED OPINION
   Korsmo, J.

¶ 1 This court granted discretionary review of Thomas Nelson's driving while under the influence (DUI) conviction in order to consider his challenge to the implied consent statute. Concluding that this claim is governed by the decision in State v. Baird , 187 Wash.2d 210, 386 P.3d 239 (2016) (plurality opinion), and that a breath sample can be obtained incident to the arrest of an impaired driver, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 This matter has a lengthy history, due in part to the fact that three trials were required in the district court. It began with a traffic stop for speeding in Douglas County. Trooper Mark Ward stopped the vehicle being driven by Mr. Nelson for speeding across the U.S. Highway 2 bridge from Chelan County to Douglas County.

¶ 3 Noticing an odor of alcohol, the trooper inquired about Mr. Nelson's use of alcohol. Admitting that he had consumed two 16-ounce cans of beer while golfing, Mr. Nelson agreed to perform physical sobriety tests. After performing the tests, the trooper arrested Mr. Nelson for DUI. He was transported to the jail and given the implied consent warnings. Mr. Nelson consented to provide breath samples. They measured .078 and .079.

¶ 4 Charges were filed in the Douglas County District Court. Mr. Nelson moved to suppress the breath test results on several grounds, including an argument that it was a warrantless search prohibited by Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The district court denied the motion, determining that the breath test was not the product of an unlawful search. Ultimately, a jury convicted Mr. Nelson of DUI and first degree negligent driving. On appeal, the superior court affirmed the conviction. A commissioner of this court granted discretionary review to consider Mr. Nelson's argument that the breath test constituted an improper warrantless search in violation of art. I, § 7 of the Washington Constitution.

¶ 5 A panel of this court heard oral argument of the case.

ANALYSIS

¶ 6 Mr. Nelson contends that the warrantless search of his breath was prohibited by art. I, § 7 of our state's constitution. His position, which necessarily would invalidate large sections of our implied consent law, is inconsistent with our search incident to arrest jurisprudence, and is inconsistent with the result in Baird . We discuss, in order, our implied consent law and the recent federal cases involving implied consent statutes, Washington's treatment of the search incident to arrest doctrine, and Baird , before applying those discussions to Mr. Nelson's case.

Implied Consent

¶ 7 Washington's implied consent law, codified at RCW 46.20.308, was adopted by the people of this state when they approved Initiative 242 during the 1968 election. State v. Moore , 79 Wash.2d 51, 52, 483 P.2d 630 (1971). The acknowledged purpose of implied consent legislation is to address the long-standing problem of drunk driving. Id . at 53, 483 P.2d 630. Although the statute has been modified several times over the last half century, the essence of the provision at the heart of this case reflects the trade-off approved by the voters in 1968. That trade-off is related in the opening sentence of the statute:

Any person who operates a motor vehicle within this state is deemed to have given consent, ... to a test or tests of his or her breath for the purpose of determining the alcohol concentration in his or her breath if arrested for any offense where, ... the arresting officer has reasonable grounds to believe the person had been driving ... while under the influence of intoxicating liquor.

RCW 46.20.308(1).

¶ 8 The implied consent recognized in this statute is not final. Prior to obtaining a breath sample, the officer must advise the driver that he or she still has the right to refuse to consent to the test, but that a license revocation and use of that refusal at trial are among the consequences that follow if the driver declines the test. RCW 46.20.308(2).

¶ 9 The constitutionality of this statute was at issue in Moore . Our court concluded that the statute did not violate either the Fifth Amendment to the United States Constitution protection against self-incrimination or the protection of art. I, § 9 from being compelled to give evidence against oneself. 79 Wash.2d at 57, 483 P.2d 630. The court also rejected a challenge to the validity of the consent provision, finding it to be within the police power of the state to compel the breath sample. Id . at 57-58, 483 P.2d 630.

¶ 10 Over the years, the court has addressed other constitutional challenges to the implied consent statute. One issue addressed in State v. Curran , 116 Wash.2d 174, 804 P.2d 558 (1991), abrogated in part on other grounds by State v. Berlin , 133 Wash.2d 541, 947 P.2d 700 (1997), concerned the validity under art. I, § 7 of a compelled blood alcohol test under former RCW 46.20.308(3) for one suspected of vehicular homicide. Id . at 179, 183, 804 P.2d 558. The court unanimously ruled that while the blood draw was a search under both the Fourth Amendment and art. I, § 7, it also was reasonable and constitutional under both provisions. Id . at 183-85, 804 P.2d 558. The court had reached the same conclusion in an earlier vehicular homicide case, State v. Judge , 100 Wash.2d 706, 711-12, 675 P.2d 219 (1984) (taking blood was a reasonable search and seizure under both constitutions).

¶ 11 Similarly, the United States Supreme Court on occasion has had opportunity to consider challenges to various aspects of state implied consent laws. E.g. , California v. Trombetta , 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (due process did not require preservation of breath sample tested by state); South Dakota v. Neville , 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (State could use evidence of refusal to consent to blood alcohol test at trial without offending privilege against self-incrimination); Mackey v. Montrym , 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) (due process did not require hearing prior to revocation of driver's license for refusal to consent to testing).

¶ 12 That Court also has had the opportunity to consider blood alcohol testing cases that arose outside of a state's implied consent law. In Schmerber v. California , 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Court faced a situation where officers at a hospital had obtained a blood sample from a suspected drunk driver who had refused to consent to the blood draw. 384 U.S. at 758-59, 86 S.Ct. 1826. After concluding that the Fifth Amendment did not apply, the Court turned to the Fourth Amendment. Id . at 760-66, 86 S.Ct. 1826. Recognizing that a search warrant "ordinarily" would be required, the court nonetheless upheld the search due to the dissipation of alcohol and the delay caused by taking the defendant to the hospital. Id . at 770-72, 86 S.Ct. 1826. In those circumstances, the acquisition of the blood alcohol "was an appropriate incident to petitioner's arrest." Id . at 771, 86 S.Ct. 1826.

¶ 13 Nearly a half century later, the Court revisited Schmerber in Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696. As in the earlier case, the suspected drunk driver refused to consent to a test and blood was thereafter taken from him at a hospital. Id . at 145-46, 133 S.Ct. 1552. After the lower courts had suppressed the evidence, the United States Supreme Court considered Missouri's argument that Schmerber authorized a per se rule permitting the warrantless taking of blood in all drunk driving cases. Id . at 146-48, 133 S.Ct. 1552. Rejecting the per se rule, the Court stressed that the exigent circumstances exception was always dependent on the totality of the circumstances. Id . at 156, 133 S.Ct. 1552. In its analysis, the Court noted that a search incident to arrest was a categorical exception to the warrant requirement and did "not require an assessment of whether the policy justifications underlying the exception, which may include exigency-based considerations, are implicated in a particular case." Id . at 150 n.3, 133 S.Ct. 1552. Because there was no exigency established, the Court affirmed the suppression ruling. Id . at 165, 133 S.Ct. 1552.

¶ 14 The Court soon thereafter had the opportunity to look at the intersection of state implied consent laws and the Fourth Amendment in Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). At issue in those consolidated cases were state implied consent laws that purported to offer a choice to refuse testing, but then treated a refusal as a crime. --- U.S. at ---- - ----, 136 S.Ct. at 2169-73, 195 L.Ed.2d at 571-74. One petitioner was convicted of a crime for refusing to take a blood test, one was convicted for refusing to take a breath test, and the third consented to a blood test, but lost his license as a consequence of the test results. Id . Noting that exigent circumstances were not at issue in the consolidated cases, the Court turned to the issues presented: (1) the application of the search incident to arrest doctrine to the breath and blood tests, and (2) the effect of criminalizing a refusal to consent on the informed consent decision. Id . --- U.S. at ----, 136 S.Ct. at 2172-73, 195 L.Ed.2d at 574.

¶ 15 The Court stated that it had been recognized long before the constitution was adopted that officers could lawfully search the person they had arrested. Id . --- U.S. at ----- - ----, 136 S.Ct. at 2173-76, 195 L.Ed.2d at 576-78. The Court stressed that the search incident to arrest exception was categorical, its prior decision in Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), notwithstanding. Id . --- U.S. at ----, ----, 136 S.Ct. at 2175-76, 2183, 195 L.Ed.2d at 578, 586. When confronted with the scope of a search incident to arrest for evidence or items not existent at the time the constitution was adopted, the Court applied a two-part test created in Riley that looked at the degree of intrusion on an individual's privacy and the governmental interest. Id . --- U.S. at ---- - ----, 136 S.Ct. at 2175-77, 195 L.Ed.2d at 578-79.

¶ 16 Applying the Riley test, the Birchfield Court concluded that a warrantless breath test was a proper search incident to an arrest because it did not implicate significant privacy concerns. Id . --- U.S. at ---- - ----, ----, 136 S.Ct. at 2176-78, 2184, 195 L.Ed.2d at 579-80, 587. With respect to blood testing, however, the bodily intrusion of seizing blood was not within the scope of a search incident to arrest. Id . --- U.S. at ----, ----, 136 S.Ct. at 2177-78, 2184, 195 L.Ed.2d at 580, 587. Blood testing was significantly more invasive than breath testing. Id . --- U.S. at ----, 136 S.Ct. at 2177-78, 195 L.Ed.2d at 580.

¶ 17 The Court then briefly turned to the impact of implied consent laws on the cases. Noting that it generally had approved implied consent statutes that imposed noncriminal penalties for refusal, the Court concluded that its decision did not cast doubt on such legislation. Id . --- U.S. at ----, 136 S.Ct. at 2184-85, 195 L.Ed.2d at 588-89. However, imposition of criminal penalties for refusing to consent to a search presented a new matter entirely: "There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads." Id . --- U.S. at ----, 136 S.Ct. at 2185, 195 L.Ed.2d at 589. The Court then concluded that "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Id .

¶ 18 The Court then turned to the disposition of the three cases before it. The Court overturned the conviction of the driver who was convicted of a crime for refusing a blood draw, but upheld the conviction of the driver who had refused a breath test. Id . The Court remanded the case of the driver whose license was suspended after he consented to a blood draw on pain of criminal prosecution. In that instance, the lower court was required to determine whether the driver's consent was valid in light of the improper advice given to him. Id . --- U.S. at ----, 136 S.Ct. at 2186-87, 195 L.Ed.2d at 589-90.

¶ 19 In summary, the Court concluded that states could compel warrantless breath tests under their implied consent laws, but could not compel warrantless blood tests. States were free to impose criminal penalties for refusing a breath test, but not for refusing to consent to a blood draw. Although administrative and evidentiary sanctions could be imposed for refusing to consent to either blood or breath testing, those sanctions needed to be based on correct legal advice. State implied consent laws concerning breath testing remain valid.

Search Incident to Arrest in Washington

¶ 20 Mr. Nelson contends that Washington treats searches incident to arrest differently than the United States Supreme Court and would not consider breath testing within the scope of that search. His argument requires us to consider Washington's treatment of the search incident to arrest doctrine vis-à-vis the federal standard.

¶ 21 Modern federal analysis of the search incident to arrest doctrine traces to United States v. Robinson , 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). There police had arrested a man and found a cigarette package containing heroin in his coat pocket. 414 U.S. at 222-23, 94 S.Ct. 467. The Court concluded that the search was proper incident to the arrest, recognizing that while the scope of the search of the area around an arrestee had varied over the years, the Court had always permitted searches of the arrestee's person. Id . at 224-26, 94 S.Ct. 467. The Court concluded that two purposes undergirded the search: the need for officer safety and the need to preserve evidence. Id . at 234-35, 94 S.Ct. 467. The authority to search the person was categorical and did not need to be justified by either of the two purposes supporting the search incident doctrine. Id . at 235, 94 S.Ct. 467. In turn, area searches were governed by the rule of Chimel v. California , 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The question presented there was whether the area was within the arrestee's " 'immediate control.' " 395 U.S. at 763, 89 S.Ct. 2034.

¶ 22 Washington likewise has recognized the same two purposes, both before and after Robinson , as the justification for a search incident to arrest under the Washington Constitution. State v. Brock , 184 Wash.2d 148, 154, 355 P.3d 1118 (2015) ; State v. Hughlett , 124 Wash. 366, 370, 214 P. 841 (1923) ("It has always been held that a peace officer, when he makes a lawful arrest, may lawfully, without a search warrant, search the person arrested."), overruled on other grounds by State v. Ringer , 100 Wash.2d 686, 699, 674 P.2d 1240 (1983). In turn, Washington recognizes the same scope for the two possible searches incident to arrest:

A warrantless search of the arrestee's person is considered a reasonable search as part of the arrest of the person. Such a search presumes exigencies and is justified as part of the arrest; therefore it is not necessary to determine whether there are officer safety or evidence preservation concerns in that particular situation. In contrast, a warrantless search of the arrestee's surroundings is allowed only if the area is within an arrestee's "immediate control." Such searches are justified by concerns of officer safety or the preservation of evidence and are limited to those areas within reaching distance at the time of the search.

State v. MacDicken , 179 Wash.2d 936, 940-41, 319 P.3d 31 (2014) (internal citations omitted).

¶ 23 The theoretical justifications for a search incident to arrest are the same under both state and federal constitutions. Similarly, the areas that can be searched-the person of the arrestee and the area within his reach-are the same.

State v. Baird

¶ 24 At issue in the two consolidated cases in Baird was whether evidence of refusal to submit to breath testing was admissible after McNeely . The drivers argued that the search was unconstitutional and, therefore, they had a constitutional right to refuse consent and the State could not use that choice against them. 187 Wash.2d at 212-13, 386 P.3d 239. Our court issued three opinions: a lead opinion by Justice Madsen expressing the views of four justices, a concurring opinion by Justice González that was joined by Justice Yu, and a dissent by Justice Gordon McCloud that expressed the view of three justices.

¶ 25 The lead opinion concluded that (1) the implied consent statute did not authorize a warrantless search, (2) there was no constitutional right to refuse a breath test because it was a valid search incident to arrest, and (3) evidence of refusal to consent was admissible as evidence of guilt under the implied consent statute. Id . at 214, 386 P.3d 239. With respect to the constitutionality of the breath test search, the drivers argued that the searches were unconstitutional under both the Fourth Amendment and art. I, § 7. Id . at 221-22, 386 P.3d 239. The lead opinion promptly answered that argument by turning to Birchfield : "[T]ests conducted subsequent to an arrest for DUI fall under the search incident to arrest exception to the warrant requirement." Id .

¶ 26 Justice González wrote separately to emphasize that a breath test after an arrest for DUI "is a limited and reasonable search" and that refusal to consent "has no constitutional implications" under the Fourth Amendment or art. I, § 7. Id . at 229, 386 P.3d 239 (González, J., concurring). He also agreed that the search incident to arrest doctrine was categorical and applied to this case. Id . at 231 n.10, 386 P.3d 239. He questioned whether there was any reasonable expectation of privacy in a driver's breath subsequent to an arrest for DUI. Id . at 231, 386 P.3d 239. Turning then to the "authority of law" component of art. I, § 7, he focused on the lengthy history of the implied consent law in this state and the minimal intrusiveness of a breath test to conclude that a DUI driver's private affairs were not disturbed by the testing. Id . at 231-32, 386 P.3d 239.

¶ 27 The dissent criticized the majority for applying the search incident to arrest analysis of Birchfield under our constitution, contending that doctrine in Washington had never "applied it to bodily contents." Id . at 234-35, 386 P.3d 239 (Gordon McCloud, J., dissenting). The dissent also took issue with the lead opinion's view that the implied consent law acted to waive challenges to the admissibility of refusal evidence. Id . at 237, 386 P.3d 239.

¶ 28 In summary, a majority of the court concluded that a breath test conducted under our implied consent law is a valid search incident to arrest under our state constitution.

Application to Mr. Nelson's Case

¶ 29 With apologies for that lengthy introduction, we can finally turn to the claim presented by Mr. Nelson. Criticizing the failure of the Baird Court to conduct an analysis under State v. Gunwall , 106 Wash.2d 54, 720 P.2d 808 (1986), he ignores the rule of that case while conducting his own Gunwall analysis. He contends that the search incident to arrest doctrine is not applicable to "non-physical data such as alcohol concentration." Br. of Appellant at 14.

¶ 30 Unlike Mr. Nelson, this court does not have the luxury of ignoring Baird . E.g. , State v. Gore , 101 Wash.2d 481, 487, 681 P.2d 227 (1984) (lower courts are bound by ruling of Washington Supreme Court). While the outcome of Baird ultimately is dispositive of this case, we nevertheless have to consider his Gunwall argument in order to reach that conclusion.

¶ 31 Under art. I, § 7, the consideration is whether a defendant's "private affairs" have been invaded without authority of law. State v. Myrick , 102 Wash.2d 506, 510, 688 P.2d 151 (1984). That term "focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." Id . at 511, 688 P.2d 151.

¶ 32 Gunwall set forth six nonexclusive criteria to be applied when analyzing whether to accord a provision of the state constitution a different reading than that given to parallel provisions of the federal constitution. 106 Wash.2d at 61, 720 P.2d 808. Those criteria are:

1. The textual language of the state constitution.
2. Significant differences in the texts of parallel provisions of the federal and state constitutions.
3. State constitutional and common law history.
4. Preexisting state law.
5. Differences in structure between the federal and state constitutions.
6. Matters of particular state interest or local concern.

Id . at 61-62, 720 P.2d 808. Because criteria 1, 2, 3, and 5 were analyzed in Gunwall with respect to art. I, § 7 and the Fourth Amendment, they need not be addressed on every occasion when comparing those two provisions; only criteria 4 and 6 need to be analyzed. State v. Hudson , 124 Wash.2d 107, 120, 874 P.2d 160 (1994) ; State v. Boland , 115 Wash.2d 571, 576, 800 P.2d 1112 (1990). In essence, the four fixed Gunwall factors address whether a provision can be interpreted differently, while the other two ask whether it should be so interpreted in the context of the particular case.

¶ 33 Here, Mr. Nelson argues that pre-existing law favors diverging from Birchfield , focusing on cases where Washington has found that the privacy protections of art. I, § 7 prohibit interference with bodily functions. E.g. , Blomstrom v. Tripp , 189 Wash.2d 379, 402 P.3d 831 (2017) (urinalysis required from DUI defendants released pending trial unconstitutional without statutory authorization); York v. Wahkiakum Sch. Dist. No. 200 , 163 Wash.2d 297, 178 P.3d 995 (2008) (school policy requiring mandatory urinalysis testing of student athletes struck down). He also argues that cases from other states should be considered in determining whether to follow Birchfield . Although cases from other states construing constitutional provisions similar to ours could be informative, the mere fact that some other states disagree with Birchfield is not "pre-existing law" under Gunwall that provides much aid to construing the scope of the Washington Constitution.

¶ 34 We believe that Mr. Nelson's focus on this factor is inaccurate. At issue is the search incident to arrest exception to the warrant requirement. Our case law in this area does not favor Mr. Nelson's position. As detailed previously, the search incident to arrest doctrine under art. I, § 7 not only serves the same purposes (evidence preservation, officer safety) as the Fourth Amendment, but our analysis of a search incident to arrest has been the same, particularly in the area of impaired drivers arrested and tested under the implied consent statute. Thus, both Judge and Curran recognized warrantless blood draws as lawful searches under art. I, § 7 prior to the United States Supreme Court revising its view of the requirements of the Fourth Amendment in McNeely .

¶ 35 After the United States Supreme Court reconsidered its Fourth Amendment treatment of state implied consent laws in Birchfield , it reaffirmed that breath testing did not implicate the federal constitution despite McNeely . When confronted with the Birchfield issue in Baird , a majority of our court determined that warrantless breath testing of suspected impaired drivers was valid under art. I, § 7. Regardless of what Mr. Nelson may think of the adequacy of Baird 's analysis, the result is clearly the most relevant example of pre-existing state law on his issue.

¶ 36 None of the most relevant case authority supports Mr. Nelson. He relies principally on the fact that Washington cases do not permit a search of a locked container found in the course of an arrest, citing to State v. VanNess , 186 Wash. App. 148, 162, 344 P.3d 713 (2015) (locked box in backpack was not subject to search incident to arrest). That case, in addition to being unique, is clearly distinguishable, even if we assume that a backpack in one's possession at the time of arrest is the same as an item on the person. Borrowing from our case law on inventory searches, the VanNess court ruled that locked containers found near an arrestee could not be searched without a warrant, relying on two automobile search cases involving locked containers that had been analyzed under the Chimel area analysis. Id . at 160-61, 344 P.3d 713. We do not believe that police can do indirectly what they cannot do directly. Locked containers are not searchable in the course of an inventory search, and that fact should not change just because the container was found in close proximity to an arrestee. VanNess is only marginally helpful to an analysis of the fourth Gunwall factor in this context.

¶ 37 Even if we consider searches incident to arrest outside of the impaired driver context, as appellant does, pre-existing law is not particularly helpful to Mr. Nelson. One example is State v. Cheatam , 150 Wash.2d 626, 81 P.3d 830 (2003). There police had arrested the defendant and placed his clothing, including a pair of shoes, in storage at the jail. Id . at 642, 81 P.3d 830. The court concluded that the defendant had no reasonable expectation of privacy in property that he had exposed to the public (and police) view. Id . In a similar vein, although not a search incident to arrest case, is State v. Surge , 160 Wash.2d 65, 156 P.3d 208 (2007). There the court upheld, also against an art. I, § 7 challenge, a statute that authorized the taking of DNA samples from those convicted of felonies. Id . at 71-74, 156 P.3d 208 (lead opinion), 83 (Owens, J. concurring). In contrast to Surge , a DNA swab of a person awaiting trial can only be ordered by a judge who determines that probable cause exists to take the sample. State v. Garcia-Salgado , 170 Wash.2d 176, 240 P.3d 153 (2010). There the court distinguished Judge and Curran due to the fact that DNA, unlike alcohol, does not dissipate and, therefore, can await judicial authorization. Id . at 185, 240 P.3d 153. The court also concluded that the warrant requirement can be satisfied by a court order. Id . at 186, 240 P.3d 153.

¶ 38 Given the extensive number of cases litigated under art. I, § 7, undoubtedly other case examples could be discussed. However, we believe we have identified, and discussed, the most relevant authorities. In this context, the fourth Gunwall factor does not favor finding a greater privacy right in breath alcohol testing. If anything, our history strongly suggests that arrestees have a diminished expectation of privacy in their breath alcohol levels.

¶ 39 The sixth Gunwall factor is whether the issue is of particular state interest or local concern. Gunwall , 106 Wash.2d at 62, 720 P.2d 808. How one views this factor depends in large part on how the issue is framed. If the question is defined at a high level of generality, such as one of personal privacy or enforcement of state law, the factor will always favor an independent interpretation. However, our court does not consider this a fixed, static factor, so we believe that the true question is focused on the specific privacy right claimed-whether a driver arrested on the public highways has a privacy interest in his breath alcohol. Although there is strong national interest in the problem of impaired driving, and the national highway system represents a significant portion of the public roadways, we still consider the issue to primarily be one of local concern. Thus, this Gunwall factor somewhat favors Mr. Nelson's argument for greater privacy than that afforded by the Fourth Amendment.

¶ 40 Nonetheless, in light of the long history of both our implied consent statute and of our case law rejecting arguments for giving art. I, § 7 an expanded interpretation in this context, we decline Mr. Nelson's argument to ignore Baird and reach a different result than that court did. Washington does not have a history of recognizing expanded privacy protection for an arrested driver's blood or breath alcohol level. We therefore conclude that the implied consent law provides authority of law to conduct a warrantless breath test as a search incident to arrest and, thus, Mr. Nelson's consent to provide breath samples was valid.

¶ 41 We are not unmindful of the consequences of accepting Mr. Nelson's argument for rejecting application of the search incident to arrest doctrine in this context. Requiring a warrant for each breath test would render the current implied consent warnings of RCW 46.20.308(2) inaccurate, leading to the suppression of test results in all pending cases. E.g., State v. Whitman County Dist. Court, 105 Wash.2d 278, 286-87, 714 P.2d 1183 (1986). Very little of the implied consent law would remain valid-and even less of it would be useful-and it is difficult to conceive of how a revised law could be crafted if there is indeed a state constitutional right to refuse the search. It also is questionable how well a search warrant could compel a valid breath sample if there were no valid consequences for refusing to comply. As a practical matter, blood would probably be drawn in every instance where a search warrant was obtained. These concerns do not factor into our analysis, but they do provide a further caution against a radical reversal of 50 years of precedent and practice.

¶ 42 The judgment of the district court is affirmed.

I CONCUR:

Siddoway, J.

Lawrence-Berrey, C.J. (dissenting)

¶ 43 The majority does a masterful job setting forth Washington State and federal decisions discussing implied consent laws and the search incident to arrest exception to the warrant requirement. I dissent because I disagree with the majority on two points.

¶ 44 First, the majority misconstrues the lead opinion in State v. Baird , 187 Wash.2d 210, 386 P.3d 239 (2016) (plurality opinion). The majority construes the lead opinion as answering no to whether article I, section 7 of the Washington Constitution prohibits a warrantless breath test. Similar to the Baird dissent, I construe the lead opinion as not answering the state constitutional question:

It is surprising that the lead opinion begins and ends its answer to this question with the Fourth Amendment [to the United States Constitution]. Our court has consistently recognized that "[a]rticle I, section 7 is more protective of individual privacy than the Fourth Amendment, and we turn to it first when both provisions are at issue." The lead opinion doesn't even turn to article I, section 7 second.
... I think we should turn to article I, section 7 first. ...

Baird , 187 Wash.2d at 234-35, 386 P.3d 239 (second alteration in original) (citations omitted) (Gordon McCloud, J., dissenting). The lead opinion did not even respond to or deny the dissent's point that it failed to decide the state constitutional question. Because the lead opinion in Baird did not decide the state constitutional question, our resolution of that issue is not controlled by Baird .

¶ 45 Second, the majority misconstrues State v. MacDicken , 179 Wash.2d 936, 319 P.3d 31 (2014), which cited State v. Byrd , 178 Wash.2d 611, 310 P.3d 793 (2013). Those cases do say that a search of an arrestee's person and personal effects "always implicate[s] Chimel[ ] concerns for officer safety and evidence preservation." Byrd , 178 Wash.2d at 618, 310 P.3d 793 (search of purse on lap of the defendant); accord MacDicken , 179 Wash.2d at 940-41, 319 P.3d 31 (search of bag carried by the defendant). The statement, although true for purses and bags on a defendant, is not true for blood and breath. It is hard to imagine how alcohol in the blood or breath of a defendant presents an officer safety concern. Yet, it is possible to imagine how the natural dissipation of alcohol in the blood or breath raises evidence preservation concerns. In those instances where the natural dissipation of alcohol in the blood or breath precludes obtaining a warrant, the exigent circumstances exception to the warrant requirement applies. See Baird , 187 Wash.2d at 220-21, 386 P.3d 239 (natural dissipation of alcohol in blood or breath may support finding of exigent circumstances, but "exigency" must be determined on case-by-case basis). But as noted by Justice Sotomayor in her dissent in Birchfield v. North Dakota , --- U.S. ----, 136 S.Ct. 2160, 2192-93, 195 L.Ed.2d 560 (2016), the ease of quickly obtaining telephonic warrants renders the natural dissipation of alcohol in one's blood or breath an uncommon concern.

¶ 46 These observations lead me to ask: Just how jealously do Washington courts guard the exceptions to the warrant requirement for searches? In most cases involving article I, section 7, we reiterate: "Under article I, section 7, a warrantless search is per se unreasonable unless the State proves that one of the few 'carefully drawn and jealously guarded exceptions' applies." Byrd , 178 Wash.2d at 616, 310 P.3d 793 (quoting State v. Bravo Ortega , 177 Wash.2d 116, 122, 297 P.3d 57 (2013) ). The answer to my question depends on whether we permit warrantless searches to expand beyond the justifications that underlie the carefully drawn exceptions to the warrant requirement.

¶ 47 In State v. Valdez , 167 Wash.2d 761, 774-75, 224 P.3d 751 (2009), our highest court unanimously held:

[T]he search incident to arrest exception has been stretched beyond these underlying justifications, permitting searches beyond what was necessary for officer safety and preservation of the evidence of the crime of arrest. This trend in article I, section 7 jurisprudence was substantially adopted from a similar trend in Fourth Amendment jurisprudence. As characterized by Justice Frankfurter in the Fourth Amendment context, the trend of cases "merely prove[s] how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision." United States v. Rabinowitz , 339 U.S. 56, 75, 70 S.Ct. 430, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting).
....
[This trend was because] cases departed from the principles upon which the search incident to arrest exception was based and have since been overruled. Yet they serve as clear reminders of the danger of wandering from the narrow principled justifications of the exception, even if such wandering is done an inch at a time. ...

(Second alteration in original; some citations omitted.) Absent evidence preservation concerns, a warrant should be required for blood and breath searches for alcohol.

¶ 48 The majority opinion ends by noting various concerns with requiring warrants for most breath searches. These concerns are overstated.

¶ 49 First, the implied consent warnings can be withdrawn and substituted by a warning that if the person does not consent to provide a breath sample, the officer will request a telephonic warrant from a judge. As noted in Justice Sotomayor's dissent, requiring warrants for most breath tests would not overly task the judiciary: "[A] significant majority of drivers voluntarily consent to breath tests, even in states without criminal penalties for refusal." Birchfield, 136 S.Ct. at 2193 (Sotomayor, J., dissenting).

¶ 50 Second, law enforcement might start warning persons now, that if they refuse to consent to a breath test, law enforcement will request a telephonic warrant from a judge. This warning will prompt actual consent to a breath test in the vast majority of cases. For those few who do not consent, a telephonic warrant can be requested. If after obtaining a telephonic warrant a person persists in refusing to provide a sample, law enforcement can give the additional implied consent warnings. Adjusting to this practice now will prevent the harsh result, possible in the future, that warrantless breath tests will be suppressed.

      Ward joined the Wenatchee Police Department the following year and was a member of that department during the trial of this case.

      "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

      Justice Utter, joined by Justice Smith, concluded that art. I, § 7 permitted the blood draw in cases of homicide as long as there was statutory authorization. Curran , 116 Wash.2d at 189, 804 P.2d 558 (Utter, J., concurring).

      Birchfield was released a year after argument in Baird and six months prior to the release of the Baird opinion.

      Our dissenting colleague misreads the Baird dissent. The dissenters challenged the lead opinion's analysis under art. I, § 7. They did not claim that the lead opinion failed to address the art. I, § 7 argument. See 187 Wash.2d at 234, 386 P.3d 239 (Gordon McCloud, J., dissenting); cf. , 187 Wash.2d at 222, 386 P.3d 239 (lead opinion).

      Br. of Appellant at 12.

      Mr. Nelson also argues that the purposes of the search incident to arrest doctrine do not support taking breath alcohol samples. We disagree. Although the dissipation of alcohol in the blood stream does not by itself constitute an exigency, the dissipation still is a relevant consideration in rapidly obtaining a sample to preserve the evidence. A search conducted incident to the arrest provides the most timely evidence of DUI.

      Brock , 184 Wash.2d at 154, 355 P.3d 1118.

      MacDicken , 179 Wash.2d at 940-41, 319 P.3d 31.

      After McNeely , the legislature promptly amended the implied consent statute to ensure that blood could be obtained from an impaired driver by means of a search warrant. See Laws of 2013, 2d Spec. Sess., ch. 35, § 36.

      Unlocked containers found on an arrestee's person are subject to search. E.g ., State v. White , 44 Wash. App. 276, 278, 722 P.2d 118 (1986) (cosmetics case was subject to search incident to arrest); State v. Garcia , 35 Wash. App. 174, 176, 665 P.2d 1381 (1983) (wallet was subject to search incident to arrest).

      VanNess also read Riley v. California as rejecting a categorical approach to searches incident to arrest. 186 Wash. App. at 156-60, 344 P.3d 713. Two years later, the Birchfield court rejected that reading of Riley and reaffirmed the categorical nature of a search incident to arrest. Birchfield , --- U.S. at ----, ----, 136 S.Ct. at 2175-76, 2183, 195 L.Ed.2d at 578, 586.

      According to the 2016 statistics of the Federal Bureau of Investigation, there were 23,209 arrests in this state for DUI. See https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-22 (last visited Feb. 7, 2019). It would be a daunting problem to provide judges to cover 23,000 additional search warrants across the state.

      At oral argument, Mr. Nelson's attorney agreed that fingerprinting an arrestee could not be justified under either rationale of the search incident to arrest doctrine. See oral argument, December 5, 2018, No. 352731, at 10:49:04: http://www.courts.wa.gov/appellate_trial_courts/appellateDockets/index.cfm?fa=appellateDockets.showDateList& courtID=a03.

      Chimel v. California , 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), overruled in part by Arizona v. Gant , 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).


author: Smith, J.

text:
    In the MATTER OF the Personal Restraint of Kenneth ALSTON, Petitioner.
    No. 76497-7-I
    Court of Appeals of Washington, Division 1.
    FILED: February 5, 2019
    Kenneth Ramone Alston (Appearing Pro Se), #319212, Stafford Creek Corrections Center, 191 Constantine Way, Aberdeen, WA, 98520, for Petitioner.
    Department of Corrections A.g. Office, Attorney at Law, Alex A. Kostin, Criminal Justice Division, 1125 Washington St. Se, Po Box 40116, Olympia, WA, 98504-0116, for Respondent.
    PUBLISHED OPINION
   Smith, J.

¶ 1 In this petition, Kenneth Alston seeks relief from a 36-month term of community custody imposed in accordance with a statute enacted after he committed the crime. Alston claims that application of the statute to his sentence violates the constitutional prohibition against ex post facto laws. Because the law operates retroactively and increases the quantum of punishment from the level to which Alston was subject on the date of the crime, we agree and grant the petition.

FACTS

¶ 2 The facts are not in dispute. In 2008, a jury convicted Kenneth Alston of assault in the first degree while armed with a firearm for an offense he committed on September 30, 2007. In accordance with the law in effect at the time of the crime, the court sentenced him to 153 months of confinement, to be followed by a variable term of community custody of 24 to 48 months. See former RCW 9.94A.715(1) (2006) (requiring sentencing court to impose variable terms of community custody); former RCW 9.94A.850(5) (2005) (Sentencing Guidelines Commission empowered to recommend ranges); former RCW 9.94A.030(41) (2006) (classifying assault in the first degree as a serious violent offense); former WAC 437-20-010 (2007) (designating community custody range of 24 to 48 months for serious violent offenses).

¶ 3 Alston was serving his term of incarceration in 2009 when the Washington State Legislature amended the law with regard to community custody. The new law replaced variable terms with fixed terms of 12, 18, or 36 months, depending on the crime. See LAWS OF 2009, ch. 375, § 5; former RCW 9.94A.701(1) - (3) (2009). Under the new law, the community custody term for the crime of assault in the first degree is 36 months. See RCW 9.94A.701(1)(b) ; RCW 9.94A.030(46)(a)(v).

¶ 4 The legislature indicated its intent that the amendment should apply retroactively to individuals, such as Alston, who were sentenced before 2009 and still incarcerated or serving terms of community custody at the time the new law was enacted:

This act applies retroactively and prospectively regardless of whether the offender is currently on community custody or probation with the department, currently incarcerated with a term of community custody or probation with the department, or sentenced after the effective date of this section.

LAWS OF 2009, ch. 375, § 20; see also LAWS OF 2008, ch. 231, § 6. The legislature also specifically charged the Department of Corrections (Department) with recalculating terms of community custody for individuals in the Department's custody to bring the sentences into compliance with the current law. See LAWS OF 2009, ch. 375, § 9 (The "department of corrections shall recalculate the term of community custody and reset the date that community custody will end ... for a crime specified in RCW 9.94A.701."); see State v. Franklin, 172 Wash.2d 831, 841-42, 263 P.3d 585 (2011). Accordingly, in July 2009, the Department recalculated the length of Alston's community custody, replacing his variable term with a fixed term of 36 months.

¶ 5 In June 2017, Alston filed a "Petition For Contempt Of Court Pursuant To RCW 7.21 et seq. For Remedial Sanctions" in King County Superior Court. That court transferred the matter to this court for consideration as a personal restraint petition. CrR 7.8(c)(2).

ANALYSIS

¶ 6 Alston contends the application of RCW 9.94A.701 to his sentence runs afoul of the prohibition on ex post facto laws because the law in effect in 2007 called for a range of community custody. He seeks reimposition of the variable term of community custody, as provided for in his judgment and sentence.

¶ 7 To prevail on a personal restraint petition, a petitioner must show that he or she is under restraint as defined by RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c). In re Pers. Restraint of Dove, 196 Wash. App. 148, 153-54, 381 P.3d 1280 (2016), review denied, 188 Wash.2d 1008, 398 P.3d 1070 (2017). Restraint is unlawful if the sentence imposed is unconstitutional. RAP 16.4(2).

¶ 8 Generally, a petitioner seeking collateral review of a claimed constitutional error must establish that the error resulted in actual and substantial prejudice. In re Pers. Restraint of Isadore, 151 Wash.2d 294, 298, 88 P.3d 390 (2004). But where, as here, the petitioner has not had the opportunity to seek direct judicial review of the claimed error, we do not apply the heightened threshold requirements that ordinarily apply to a personal restraint petition. Isadore, 151 Wash.2d at 299, 88 P.3d 390. Instead, the petitioner must show only that he or she is under unlawful restraint under RAP 16.4(b) and RAP 16.4(c). Isadore, 151 Wash.2d at 299, 88 P.3d 390.

¶ 9 Both the United States and Washington Constitutions prohibit the passage of ex post facto laws. U.S. CONST. art. I, § 10; WASH. CONST. art. I, § 23. The ex post facto clause prohibits a state from enacting a law that retroactively increases the punishment for a crime after it was committed. Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ; In re Pers. Restraint of Flint, 174 Wash.2d 539, 545, 277 P.3d 657 (2012). "Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of this precept." Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). The "controlling inquiry" is "whether retroactive application of the change in ... law created 'a sufficient risk of increasing the measure of punishment attached to the covered crimes.' " Garner, 529 U.S. at 250, 120 S.Ct. 1362 (quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) ). The risk of an adverse impact on a prisoner's expected term of confinement must be more than merely "conceivable." Morales, 514 U.S. at 508, 115 S.Ct. 1597. Generally speaking, however, "[t]he question when a change in law creates such a risk is 'a matter of degree'; the test cannot be reduced to a 'single formula.' " Peugh v. United States, 569 U.S. 530, 539, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) (quoting Morales, 514 U.S. at 509, 115 S.Ct. 1597 ).

¶ 10 It is undisputed that RCW 9.94A.701 operates retroactively as to Alston because he committed the offense before the legislature amended the law. The issue is whether the amended community custody law increases the measure of punishment.

¶ 11 Alston relies on the decision of Division Three of this court in State v. Coombes, 191 Wash. App. 241, 361 P.3d 270 (2015), to argue that RCW 9.94A.701 increased the quantum of punishment and therefore violates the constitutional prohibition against ex post facto laws. Coombes pleaded guilty to murder in the first degree in 2008. He later successfully collaterally challenged his plea, withdrew the plea, and went to trial. Coombes, 191 Wash. App. at 246, 361 P.3d 270. Following his subsequent jury conviction, the sentencing court imposed a sentence that included a community custody term of 36 months. Coombes, 191 Wash. App. at 249, 361 P.3d 270.

¶ 12 On appeal, Coombes claimed, and the State conceded, that imposition of a 36-month fixed term of community custody violated the prohibition against ex post facto laws. Coombes, 191 Wash. App. at 249, 361 P.3d 270. The court agreed. The court concluded that (1) the statute amending community custody terms operated retroactively to Coombes, who committed his offense before the amendment of the community custody law and (2) the new community custody law increased Coombes's punishment because it replaced a previously discretionary term with a mandatory term. Coombes, 191 Wash. App. at 251-53, 361 P.3d 270 : see also Flint, 174 Wash.2d at 554, 277 P.3d 657. Accordingly, the court vacated the community custody portion of Coombes's sentence and remanded for imposition of a variable term consistent with the law in 2007 at the time of Coombes's offense. Coombes, 191 Wash. App. at 253, 361 P.3d 270. Recently, Division Two of this court followed the analysis of Coombes, reaching the same conclusion in a case involving the same relevant facts. State v. Contreras-Rebollar, 4 Wash. App. 2d 222, 421 P.3d 509, review granted, 192 Wash.2d 1008, 430 P.3d 274 (2018).

¶ 13 The courts in both Coombes and Contreras-Rebollar relied on the United States Supreme Court's decision in Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), to support the position that "the applicable quantum of punishment increases when a statute makes a formerly discretionary punishment mandatory." Coombes, 191 Wash. App. at 251-52, 361 P.3d 270 ; see also Contreras-Rebollar, 4 Wash. App. 2d at 229, 421 P.3d 509. The defendants in Lindsey were convicted of grand larceny. On the date of the crime, Washington law penalized grand larceny with a sentence of imprisonment of no more than 15 years. Lindsey, 301 U.S. at 398, 57 S.Ct. 797. The law permitted the sentencing court to set the minimum term of imprisonment at any point between 6 months and 5 years, and required the maximum sentence to be greater than the minimum term but less than 15 years. Lindsey, 301 U.S. at 398, 57 S.Ct. 797. Before the court sentenced the defendants, the legislature amended the statute to require courts to set only the maximum term of incarceration at the statutory maximum of 15 years. Lindsey, 301 U.S. at 398, 57 S.Ct. 797. The parole board was then required to fix the duration of confinement, which could not exceed the maximum term of incarceration as determined by the court. Lindsey, 301 U.S. at 398-99, 57 S.Ct. 797. The defendants were sentenced in accordance with the revised statute. The court imposed the maximum sentence of 15 years and did not set a minimum term. Lindsey, 301 U.S. at 399, 57 S.Ct. 797.

¶ 14 The Washington State Supreme Court upheld the sentence because a 15-year maximum sentence was possible under both the prior and the revised statute. Lindsey, 301 U.S. at 400, 57 S.Ct. 797. The United States Supreme Court reversed because "[t]he effect of the new statute is to make mandatory what was before only the maximum sentence." Lindsey, 301 U.S. at 400, 57 S.Ct. 797. Specifically, under the terms of the new statute, the defendant necessarily remained subject to correctional supervision for 15 years, whereas under the old statute, the duration of supervision could have been less. Lindsey, 301 U.S. at 400-01, 57 S.Ct. 797. The Court reasoned:

Removal of the possibility of a sentence of less than fifteen years, at the end of which petitioners would be freed from further confinement and the tutelage of a parole revocable at will, operates to their detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old. It could hardly be thought that, if a punishment for murder of life imprisonment or death were changed to death alone, the latter penalty could be applied to homicide committed before the change. Yet this is only a more striking instance of the detriment which ensues from the revision of a statute providing for a maximum and minimum punishment by making the maximum compulsory.

Lindsey, 301 U.S. at 400, 57 S.Ct. 797 (citation omitted). Upon concluding that the new law was detrimental to the defendants in comparison with the sentence the court could have imposed under the former statute, the Court stated:

We need not inquire whether this is technically an increase in the punishment annexed to the crime, see Calder v. Bull, [3 U.S. (3 Dall.) 386], 390[, 1 L.Ed. 648 (1798) ]. It is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.

Lindsey, 301 U.S. at 401-02, 57 S.Ct. 797.

¶ 15 Although the Supreme Court later discarded the "substantial disadvantage" standard cited by the court, the holding of Lindsey remains in full force. See Collins, 497 U.S. at 50, 110 S.Ct. 2715 (overruling Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883) ); Peugh, 569 U.S. at 546, 133 S.Ct. 2072. As the Court clarified in Morales, the inquiry is not whether a law results in a disadvantage but whether the retroactive statute "produces a sufficient risk of increasing the measure of punishment attached to the covered crimes." Morales, 514 U.S. at 509, 115 S.Ct. 1597 ; see also Garner, 529 U.S. at 250, 120 S.Ct. 1362 ; Peugh, 569 U.S. at 539, 133 S.Ct. 2072. Nevertheless, the result in Lindsey is the same under either standard. Under the former law setting the punishment for larceny, the duration of supervision could have been any amount of time between 6 months and 15 years, whereas under the amended law, the duration of supervision could not be less than the maximum term of 15 years. Since the "measure of punishment prescribed by the later statute [was] more severe than that of the earlier," the statutory amendment at issue produced a "sufficient risk of increasing the measure of punishment" for larceny. Lindsey, 301 U.S. at 401, 57 S.Ct. 797 ; Morales, 514 U.S. at 509, 115 S.Ct. 1597.

¶ 16 This case is more difficult than Lindsey because the mandatory punishment under the new statute is not the previously maximum allowable punishment: the fixed term for Alston's offense is the midpoint of the previously applicable variable range. So, the new law deprives those to whom it applies of the previously available opportunity to serve a term of community custody of less than three years, but at the same time eliminates the risk that the duration of supervision will exceed three years.

¶ 17 We cannot discount the risk of a higher sentence under the amended law merely because the Department had broad discretion as to the timing of release from a variable term of community custody. "The presence of discretion does not displace the protections of the Ex Post Facto Clause." Garner, 529 U.S. at 253, 120 S.Ct. 1362 (italics omitted). Nor does the lack of absolute certainty that application of the new law will result in a higher sentence foreclose an ex post facto claim. Both our courts and the Supreme Court have considered the validity under the ex post facto clause of laws altering the terms on which discretionary parole or early release was available to prisoners. See Garner, 529 U.S. 244, 120 S.Ct. 1362 ; Morales, 514 U.S. 499, 115 S.Ct. 1597 ; Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ; In re Pers. Restraint of Powell, 117 Wash.2d 175, 814 P.2d 635 (1991). In these analogous circumstances, courts have reached different conclusions as to whether there was an ex post facto violation, but none have rejected the claim merely because there was no guarantee that parole or early release would be granted earlier under the former law. See Garner, 529 U.S. at 253, 120 S.Ct. 1362 ; Morales, 514 U.S. at 508-10 & n.6, 115 S.Ct. 1597 ; Weaver, 450 U.S. at 30-31, 101 S.Ct. 960. For instance, the Supreme Court has held that a statute reducing the amount of good time credits that could be earned by a prisoner violated the ex post facto clause when applied to a person whose crime occurred before the more stringent statute was enacted. Weaver, 450 U.S. at 35-36, 101 S.Ct. 960 ; see also Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (amendment removing accumulated provisional early release credits was an impermissible ex post facto law as it lengthened a period of incarceration for person sentenced under the old law).

¶ 18 On balance, the change in the law that replaced a variable term of community custody with a fixed term poses a sufficient risk of a higher sentence by entirely eliminating the opportunity to be free of custodial supervision before 36 months. Accordingly, application of RCW 9.94A.701, enacted after Alston's conviction, violates the constitutional prohibition against ex post facto laws. Alston is entitled to the relief he seeks-recalculation of his community custody term in accordance with the law in effect at the time of the offense.

¶ 19 We grant the personal restraint petition.

WE CONCUR:

Andrus, J.

Schindler, J.

      According to the documents supplied by the Department of Corrections, Alston will be eligible for early release in March 2020.

      This court granted Alston's motion to file an amended petition, superseding the petition he initially filed in superior court. This court also appointed counsel to represent Alston when it referred his petition to a panel of judges for a decision on the merits. RCW 10.73.150(4) ; RAP 16.11 (b). However, Alston waived his right to counsel and represents himself pro se. Kevin A. Gilbert, a petitioner in another matter, subsequently filed what he describes as an amicus curiae brief on Alston's behalf. However, because it appears that Gilbert is not an attorney licensed to practice law in Washington or in another jurisdiction as required by RAP 10.6(a), we decline to consider the supplemental briefing.

      The Supreme Court granted review only with regard to the issue of imposition of a filing fee as a legal financial obligation.

      Although Lindsey is instructive, we do not read that case as establishing the broad proposition that any law that makes a formerly discretionary punishment mandatory necessarily increases the quantum of punishment. The court's ruling hinged upon the critical fact that the amendment made mandatory a sentence that was the maximum permissible punishment under the old law. The punishment under the new law must be more severe than under the former law, even if the new penalty is not strictly mandatory. See Peugh, 569 U.S. at 541, 133 S.Ct. 2072 (applying amended sentencing guidelines that increase the recommended sentence can violate the ex post facto clause notwithstanding the discretion of sentencing courts to deviate from the guidelines): accord Miller v. Florida, 482 U.S. 423, 435, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).

      The legislature did not uniformly set the fixed terms at the midpoint of the prior variable range. For instance, with respect to violent offenses, the fixed term was set at 18 months, the minimum sentence under the previous variable range. For felony offenses under RCW 69.50 and RCW 69.52, the fixed term was set at 12 months, the maximum sentence under the previous variable range. Compare WAC 437-20-010 (2007) with former RCW 9.94A.701 (2009).

      To the extent that Alston seeks contempt sanctions based on the Department's recalculation of his community custody term, this requested relief is beyond the scope of relief available by means of a personal restraint petition. See In re Pers. Restraint of Sappenfield, 138 Wash.2d 588, 595, 980 P.2d 1271 (1999) (In granting a personal restraint petition, this court may only order the removal of the illegal restraint.).


author: Verellen, J.

text:
    JEOUNG LEE and Sherri McFarland, on their Own Behalf and on Behalf of All Persons Similarly Situated, Respondents, v. EVERGREEN HOSPITAL MEDICAL CENTER, a/k/a King County Public Hospital District #2, Appellant.
    No.77694-1-I
    Court of Appeals of Washington, Division 1.
    FILED: February 11, 2019
    John James White, Kevin Blair Hansen, Rebecca Lauren Penn, Livengood Alskog, PLLC, 121 3rd Ave., Po Box 908, Kirkland, WA, 98083-0908, for Appellant.
    David Elliot Breskin, Cynthia J. Heidelberg, Breskin, Johnson & Townsend PLLC, 1000 2nd Ave. Ste. 3670, Seattle, WA, 98104-1053, for Respondents.
    PUBLISHED OPINION
   Verellen, J.

¶ 1 A union employee working for a public employer does not waive her ability to bring statutory wage and hour claims in a judicial forum unless her collective bargaining agreement (CBA) clearly and unmistakably does so. Because, on its face, the CBA between the Washington State Nurses' Association (WSNA) and Evergreen Hospital (Evergreen) does not waive union members' abilities to enforce their statutory rights in a judicial forum, the trial court correctly denied Evergreen's motion to compel arbitration.

¶ 2 Even if Evergreen had the right to compel arbitration under the CBA, it waived any right to do so by its conduct. A litigant waives its right to invoke arbitration where it knows of its right to arbitrate and engages in conduct inconsistent with seeking arbitration, such as actively litigating and passing an obvious opportunity to assert that right. Evergreen noted its right to arbitrate in its answer to Jeoung Lee's initial complaint. Evergreen actively litigated the dispute for nine months and then opposed Lee's motion to continue the impending trial date, declaring it was ready to litigate as scheduled. Three weeks later, Evergreen filed its motion to compel arbitration. Because Evergreen knew of any right to compel arbitration, litigated vigorously, and passed an obvious opportunity to assert its right to compel arbitration, Evergreen waived its right.

¶ 3 Therefore, we affirm.

FACTS

¶ 4 Lee was an emergency room nurse at Evergreen from February 2010 until August 2016. The terms of her employment were governed by a CBA between Evergreen and WSNA. To resolve nurses' work-related grievances, the CBA provided a set of informal procedures culminating with the option of arbitration. The CBA also contained a provision about nurses' meal and rest breaks.

¶ 5 Lee filed a putative class action in November 2016 with herself as the sole representative plaintiff alleging that Evergreen denied emergency room nurses their statutorily guaranteed rest and meal breaks. Evergreen filed an answer in December denying that class certification was appropriate and raising an affirmative defense alleging that Lee "failed to exhaust the grievance and arbitration process under the applicable collective bargaining agreement." On January 17, 2017, Lee filed a first amended complaint making identical rest and meal break allegations.

¶ 6 Over the next six months, the parties engaged in discovery, conducted depositions, disagreed about trial dates, and disputed class certification. Lee also sent out class notices to over 500 nurses after the court certified the proposed class.

¶ 7 On July 26, Evergreen deposed class member Sherri McFarland. Soon after, Lee moved to continue the trial date from November of 2017 to March of 2018 and to amend her complaint by adding McFarland as a representative plaintiff. Evergreen opposed Lee's motion to continue and argued trial should go forward as scheduled. The court granted Lee's motion to continue.

¶ 8 On August 15, the court also granted Lee's motion to file her second amended complaint, which is the operative complaint. Two weeks later, Evergreen filed its motion to compel arbitration and alleged "Plaintiffs' second amended complaint, recent discovery requests, and deposition testimony of class representatives now make clear that the claims arise under the [CBA]." The court denied Evergreen's motion to compel arbitration.

¶ 9 Evergreen appeals.

ANALYSIS

¶ 10 We review de novo denial of a motion to compel arbitration. We also review de novo whether a party waived the right to compel arbitration.

Whether The CBA Requires Arbitration

¶ 11 Evergreen contends the CBA compels binding arbitration of all class claims because Lee's alleged violations arise from section 7.7 of the CBA, not from any statute or regulation.

¶ 12 The Federal Arbitration Act (FAA) generally applies to CBAs. We apply federal substantive law to any arbitration agreement within the coverage of the FAA. When reviewing a motion to compel arbitration, we consider " 'whether the arbitration agreement is valid' " and " 'whether the agreement encompasses the claims asserted.' " If both criteria are met, then Washington courts order arbitration in most instances. The parties do not dispute the validity of the CBA. The critical question is whether Lee's claims are statutory or contractual.

¶ 13 Evergreen relies on RCW 49.12.187 to argue Lee's claims are contractual because the statute gives public employers and public employee unions the ability to negotiate CBAs "that specifically vary from or supersede, in part or in total, rules adopted under this chapter regarding appropriate rest and meal periods." But section 7.7 does not vary from or supersede WAC 296-126-092. And this CBA's grievance process does not encompass statutory claims.

¶ 14 Article 16 in the CBA provides a four-step grievance process. The CBA defines a grievance as "an alleged breach of the express terms and conditions" of the agreement. The terms of this CBA do not allow an alleged statutory breach to be grieved under this narrow definition.

¶ 15 Chapter 49.12 RCW authorizes the creation of regulations about meal and rest periods for employees, which are defined in WAC 296-126-092 :

(1) Employees shall be allowed a meal period of at least thirty minutes which commences no less than two hours nor more than five hours from the beginning of the shift. Meal periods shall be on the employer's time when the employee is required by the employer to remain on duty on the premises or at a prescribed work site in the interest of the employer.
(2) No employee shall be required to work more than five consecutive hours without a meal period.
(3) Employees working three or more hours longer than a normal work day shall be allowed at least one thirty-minute meal period prior to or during the overtime period.
(4) Employees shall be allowed a rest period of not less than ten minutes, on the employer's time, for each four hours of working time. Rest periods shall be scheduled as near as possible to the midpoint of the work period. No employee shall be required to work more than three hours without a rest period.
(5) Where the nature of the work allows employees to take intermittent rest periods equivalent to ten minutes for each 4 hours worked, scheduled rest periods are not required.

Section 7.7 of the CBA addresses meal and rest periods for nurses:

Meal periods and rest periods shall be administered in accordance with state law ( WAC 296-126-092 ). Nurses shall be allowed an unpaid meal period of one-half (1/2) hour. Nurses required by the Employer to remain on duty during their meal period shall be compensated for such time at the appropriate rate of pay. All nurses shall be allowed a rest period of fifteen (15) minutes on the Employer's time, for each four (4) hours of working time.[ ]

¶ 16 Contrary to Evergreen's contentions, section 7.7 in the CBA merely comports with WAC 296-126-092. Section 7.7 states meal and rest breaks "shall be administered in accordance with" WAC 296-126-092. Notably, the regulation is more extensive than section 7.7 and addresses matters on which the CBA is silent. For example, section 7.7 does not provide guidance on when nurses can take rest breaks. WAC 296-126-092(4) requires that rest periods be scheduled as near as possible to the midpoint of an employee's work period. Also, section 7.7 does not explain when employees can take meal breaks. But WAC 296-126-092(2) requires that "[n]o employee shall be required to work more than five consecutive hours without a meal period." As section 7.7 states, administration of the CBA necessarily relies on compliance with the regulation rather than the CBA varying from or superseding the regulation.

¶ 17 Evergreen makes much of the fact that section 7.7 provides for a 15-minute rest period, whereas WAC 296-126-092(4) provides for a rest period of "no less than ten minutes." But 15 minutes is "no less than ten minutes." The 15-minute rest period merely reflects compliance with rather than variance from the regulation. Also, Lee's claim is for missed rest breaks. The potential duration of a rest break is irrelevant if the break never begins or was less than 10 minutes.

¶ 18 Evergreen also relies on deposition testimony from McFarland and other class members to argue Lee's claims are contractual rather than statutory. But arguable differences between class claims pled in the complaint and snippets of plaintiffs' testimony do not recast Lee's claims as Evergreen wants them to be. Specifically, Evergreen contends that McFarland's testimony about missed breaks shows her claims arise under the CBA, but the rest and meal breaks provided by the CBA accord with state law. And Lee's complaint alleges Evergreen failed to provide any rest breaks regardless of each break's duration. Neither the CBA nor plaintiffs' testimony converts this statutory claim into a contractual one.

¶ 19 Evergreen contends that all disputes between parties to a CBA are presumptively subject to arbitration unless specifically excluded. This argument is not persuasive because it fails to recognize the source of the rights Lee asserts in her complaint.

¶ 20 The "Steelworkers Trilogy," which sets out the principles governing arbitration of public employee labor disputes governed by a CBA, strongly favors arbitration of contractual disputes within the scope of an arbitration provision. But a public or private employee's statutory rights are distinct from her contractual rights. Even where a CBA contains a provision that is coextensive with a statutory right, the ultimate question is what the law requires; "and that is not a question which should be presumed to be included within the arbitration requirement."

¶ 21 Moreover, arbitration clauses in CBAs differ from arbitration clauses in bilateral employment contracts, particularly when it comes to statutory rights. Consequently, an employee retains the ability to enforce her statutory rights in court unless the employees clearly and expressly agreed in the CBA

to arbitrate their statutory claims. The CBA must "explicitly state[ ]" in "clear and unmistakable language" that employees waive their ability to enforce statutory rights in court.

¶ 22 In Vega v. New Forest Home Cemetery, LLC, a union employee working under a CBA sued his former employer to collect unpaid wages. The employee brought claims under the Fair Labor Standards Act (FLSA) and Illinois state wage law. The CBA addressed the employee's wages, set out a mandatory four-step grievance process to resolve disputes, and explicitly defined grievances to include disputes over pay. The court held the employee could sue in court to enforce his statutory wage rights under the FLSA because nothing in the CBA referenced the statute. Because the CBA did not explicitly reference the FLSA, there was nothing clear and unmistakable in the CBA compelling the employee to assert his statutory rights through the grievance process.

¶ 23 Similarly, this court recently held in Cox v. Kroger Co. that an arbitration provision in a union employee's CBA did not waive his ability to bring statutory wage and hour claims in court. The employee brought a class action against his former employer to collect wages allegedly denied in violation of state wage laws. Because neither the CBA's wage nor grievance provisions identified or even referenced any wage statutes covered by the agreement, the CBA did not "clearly and unmistakably" waive his ability to enforce his statutory rights in court. The court affirmed the trial court's denial of the employer's motion to compel arbitration.

¶ 24 By contrast, the Supreme Court held in 14 Penn Plaza LLC v. Pyett that a union employees' CBA waived their ability to enforce statutory rights in court. The employees alleged discrimination in violation of the federal Age Discrimination in Employment Act of 1967 (ADEA). But the employees' CBA explicitly provided that all employment discrimination claims, including those brought under the ADEA, would be subject to the contract's grievance provision requiring binding arbitration "as the sole and exclusive remedy for violations." The court reasoned the CBA "clearly and unmistakably" required arbitration because the discrimination section explicitly stated ADEA claims were arbitrable.

¶ 25 Here, as in Vega and Cox, article 16 makes no reference of any kind to any statute or to statutory rights. In addition, article 16 narrowly defines a grievance as an "alleged breach of the express terms and conditions of the [CBA]," which WAC 296-126-092 is not. And unlike 14 Penn Plaza, no part of the CBA explicitly waives Lee's ability to enforce her statutory rights in court. Lee's complaint alleges that she and her fellow class members "did not receive meal and rest breaks violat[ing] RCW 49.12 and WAC 296-126-092." The complaint does not reference breach of any contractual term, and the face of the CBA shows it does not supersede or vary from WAC 296-126-092.

¶ 26 Article 16 provides the option of submitting unresolved grievances to binding arbitration, rather than mandating arbitration in all instances. And, as in Cox, the CBA's grievance provisions make no mention of any statutory rights and apply only to a breach of the agreement's express terms. Lee's complaint does not implicate the CBA and, moreover, the CBA does not clearly and unmistakably waive Lee's ability to bring individual statutory claims in court.

¶ 27 Evergreen contends, though, 14 Penn Plaza, Vega, and Cox are inapposite because those employees were privately employed whereas Lee was a public employee with a CBA subject to Washington's Public Employee Collective Bargaining Act (PECBA). According to Evergreen, PECBA presumes that an employee's disputes with her public employer are subject to arbitration absent "a clear and unmistakable carve-out" because PECBA "provides an express waiver of a judicial forum for employee statutory claims on matters covered in the CBA."

¶ 28 First, PECBA does not presume or mandate arbitration of employees' statutory claims. PECBA merely allows that a CBA "may ... [p]rovide for binding arbitration of a labor dispute" arising from "matters contained in" the agreement. The parties to a CBA are free to collectively bargain for particular dispute resolution procedures. PECBA mandates neither arbitration nor litigation. And, as discussed, Lee's statutory claims do not arise from "matters contained in" the CBA.

¶ 29 Second, our Supreme Court recognized in Peninsula School District No. 401 v. Public School Employees of Peninsula that PECBA is not implicated where only "statutorily created private rights" are allegedly harmed by an employer's conduct. In Peninsula, a school district declined to recognize a grievance filed jointly by a union and its member because the district argued the matter grieved fell outside the bounds of the CBA. Thus, the court had to address whether the matter could be and was collectively bargained for. The Peninsula court distinguished that case from Shoreline Community College District No. 7 v. Employment Security Department because Peninsula did not involve a waiver of private statutory rights.

¶ 30 In Shoreline, the community college argued that an English instructor was not entitled to unemployment benefits because his CBA calculated his work hours such that he could not meet the statutory minimum to receive benefits. The community college further contended the CBA controlled over conflicting provisions of the Employment Security Act, effectively waiving the instructor's right to receive unemployment benefits. The court disagreed and held that a contractual waiver of the right to unemployment benefits was void as contrary to public policy because the right to benefits serves a public policy purpose; the court's analysis never considered PECBA.

¶ 31 Because the CBA does not clearly and unmistakably waive Lee's ability to enforce her statutory rights in court and PECBA is not germane, the court did not err in denying Evergreen's motion to compel arbitration.

Whether Evergreen Waived The Right To Compel Arbitration

¶ 32 Lee contends that even if the CBA required arbitration of her claims, Evergreen waived its right to compel arbitration.

¶ 33 We review de novo whether a party waived arbitration.

¶ 34 "Washington courts have long held that the contractual right to arbitration may be waived if it is not timely invoked." Because Washington has a strong presumption in favor of arbitration, the party arguing against it bears a heavy burden of showing that waiver occurred. " 'To establish waiver of the right to arbitration, the party opposing arbitration must demonstrate (1) knowledge of an existing right to compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.' " A party asserting its right to arbitration acts inconsistently with that right where it seeks a decision on the merits of issues in the litigation and fails to assert its right at " 'obvious opportunities' " to do so. "Simply put, ... a party waives a right to arbitrate if it elects to litigate instead of arbitrate."

¶ 35 Evergreen agrees it did not move to compel arbitration until the parties had been litigating for nine months. But it contends it did not know the claims in the complaint arose under the CBA until after it deposed McFarland on July 26, 2017, and Lee added McFarland as a representative plaintiff a few weeks later.

¶ 36 Lee's meal and rest break claims against Evergreen in her second amended complaint are identical to those in her first amended complaint and her original complaint. Also, Evergreen first raised arbitration as a defense in the answer it filed December 22, 2016. Evergreen cannot now contend it did not know these claims might be arbitrable where its answer raised arbitration as an affirmative defense.

¶ 37 Evergreen behaved inconsistently with a party seeking to arbitrate. Soon after McFarland's deposition, Lee moved to continue trial from November 2017 to March 2018. Lee also sent Evergreen a copy of her proposed second amended complaint adding McFarland as a representative plaintiff. Evergreen opposed the motion to continue, and stated it "is prepared to try this case on November 6, 2017." Also, Evergreen was fully aware of McFarland's deposition testimony at the time it insisted on litigating. Evergreen specifically argued against granting Lee a continuance because McFarland had already been deposed and "[a] second class representative adds nothing to the present case." Put simply, Evergreen elected to litigate and missed an obvious opportunity to assert its right to arbitrate.

¶ 38 Lee would be prejudiced by granting Evergreen's motion to compel. "When a party has expended considerable time and money due to the opposing party's failure to timely move for arbitration and is then deprived of the benefits for which it has paid by a belated motion to compel, the party is indeed prejudiced." For example, there is prejudice when a party loses a motion on the merits and effectively attempts to relitigate it by invoking arbitration or when a party "too long postpones" invocation of arbitration and causes the opposing party "to incur unnecessary delay or expense."

¶ 39 Here, Lee will be prejudiced if Evergreen is allowed to belatedly compel arbitration. Lee asserts she incurred over $140,000 in fees and costs from formal discovery and pretrial litigation before Evergreen moved to compel arbitration. Granting Evergreen's motion would also prejudice Lee by giving Evergreen a second chance on the critical substantive issues, such as class certification, that it litigated and lost.

¶ 40 Evergreen analogizes to Hill v. Garda CL Northwest Inc., to argue it did not waive its right to compel arbitration. In Hill, a group of employees filed a putative class action against an armored car company for alleged wage violations. The company asserted its right to compel arbitration in its answer and began to engage in discovery, but it did not move to compel arbitration for over one year. But during that year, the parties agreed to delay litigation while awaiting the outcome in a very similar case being litigated in this court. After the similar case was decided, the parties filed a joint stipulation agreeing that the matter was arbitrable. Also, both parties endeavored to resolve the dispute through mediation prior to committing to arbitration or litigation. After the company finally moved to compel arbitration, this court held it had not waived the right to arbitrate "[b]ecause the delay in filing the motion to compel resulted in part from an effort to resolve this case without resorting to litigation and Garda asserted its arbitration rights in its answer."

¶ 41 Evergreen's conduct in this case bears little similarity to that of the armored car company. Unlike the company in Hill. Evergreen demanded to litigate this case in court before seeking arbitration. Also, nothing in the appellate record shows an effort by either party to resolve this dispute out of court.

¶ 42 Evergreen's knowledge of its ability to invoke arbitration, its litigation conduct, and the potential prejudice to Lee demonstrate waiver of the right to arbitrate. Accordingly, we conclude Evergreen waived the right to arbitrate when it elected to litigate instead of arbitrate.

¶ 43 For the foregoing reasons, we affirm.

WE CONCUR:

Andrus, J.

Mann, J.

      Clerk's Papers (CP) at 10.

      Lee originally filed to certify a class under CR 23(b)(2), and Evergreen moved to dismiss because she sought damages. The first amended complaint was essentially the same, except for seeking class certification pursuant to CR 23(b)(3).

      CP at 544.

      Cox v. Kroger Co., 2 Wash. App. 2d 395, 403, 409 P.3d 1191 (2018). The parties debate whether a motion to compel arbitration may be made as a general motion or whether it must be made pursuant to CR 12(c) or CR 56. But the issue is purely academic because Evergreen advised the trial court it was moving pursuant to CR 12, and both parties urge us to consider materials outside the pleadings. Thus, our review is de novo regardless of which civil rule governed Evergreen's motion to compel arbitration.

      Romney ex rel. Estate of Romney v. Franciscan Med. Grp., 199 Wash. App. 589, 602, 399 P.3d 1220, review denied, 189 Wash.2d 1026, 406 P.3d 282 (2017).

      Evergreen addresses Lee and McFarland's individual claims separately from class claims and contends both must be submitted to arbitration. Because Evergreen did not appeal class certification, and we do not consider the underlying issues-e.g., class certification-on appeal of a motion to compel arbitration, Peninsula Sch. Dist. No. 401 v. Public Sch. Emp. of Peninsula, 130 Wash.2d 401, 413, 924 P.2d 13 (1996), we treat all claims as class claims.

      9 U.S.C. §§ 1 -14.

      Cox, 2 Wash. App. 2d at 403, 409 P.3d 1191.

      Id. at 403-04, 409 P.3d 1191.

      Id. at 404, 409 P.3d 1191 (quoting Wiese v. CACH, LLC, 189 Wash. App. 466, 474, 358 P.3d 1213 (2015) ).

      Estate of Romney, 199 Wash. App. at 596-97, 399 P.3d 1220.

      Evergreen argues this court lacks the authority to compare the CBA with meal and rest break regulations because issues of arbitrability must be resolved by an arbitrator. But threshold questions around arbitrability-questions about " 'whether the parties have submitted a particular dispute to arbitration' "-should be resolved by courts unless the parties clearly and unmistakably provided otherwise in their CBA. Martin v. Yasuda, 829 F.3d 1118, 1123 (9th Cir. 2016) (quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) ); accord FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 190 Wash.2d 281, 287, 413 P.3d 1 (2018). Because the CBA does not provide otherwise, we determine if Lee's claims are arbitrable.

      RCW 49.12.187.

      First, a nurse must present her written grievance to her supervisor. Second, if unresolved, she must present her written grievance to the chief nurse executive. Third, if still unresolved, the nurse must present her grievance to an administrator. Fourth, "[i]f the grievance is not settled on the basis of the foregoing procedures, [WSNA] may submit the issue in writing to final and binding arbitration." CP at 107.

      CP at 106 (emphasis added).

      CP at 93.

      CP at 93.

      Compare CP at 93 (section 7.7 of the CBA), with WAC 296-126-092.

      Throughout its briefing and at oral argument, Evergreen repeatedly claimed that the CBA provides only one meal break per 12-hour shift. But this is misleading. The section of the CBA Evergreen cites to for this fact is an addendum to the CBA applicable only to nurses working a "combined shift schedule" with both eight and 12-hour shifts. CP at 198. Generally, though, nurses working 12-hour shifts would work three 12-hour shifts within a seven day period. Because Lee and McFarland only worked 12-hour shifts, the combined shift schedule would not have applied to them. Instead, section 7.7, rather than the addendum, governed their meal and rest breaks.

      See, e.g., Appellant's Br. at 23-25 ("The CBA grants nurses 15-minute rest breaks, not the 10 minutes provided by WAC 296-126-092(4).... If nurses missed their 15-minute rest breaks and were not paid, that is a 'breach of the express terms and conditions' of the CBA and must be resolved through the CBA's grievance process, culminating in arbitration.").

      Evergreen points to CR 15(b) and related cases as authority for its contention. But neither CR 15 nor the cases Evergreen cites apply here. "CR 15(b) is applicable in general terms to those occasions when the course of the trial departs so materially from the image of the controversy pictured in the pleadings that it becomes necessary to adjust the pleadings to reflect the case as it was actually litigated in the courtroom." Harding v. Will, 81 Wash.2d 132, 136, 500 P.2d 91 (1972). "Where evidence raising issues beyond the scope of the pleadings is admitted without objection, the pleadings will be deemed amended to conform to the proof." Reichelt v. Johns-Manville Corp., 107 Wash.2d 761, 766-67, 733 P.2d 530 (1987). CR 15(b) is not an invitation to recast one party's claims at the behest of the opposing party based on highly disputed characterizations of cherry-picked deposition testimony.

      E.g., Appellant's Br. at 14-16 ("I think if the union contract states that they're required to give you a rest break within a certain period of time, then if they do not give you that, they ought to pay you for it, yes.") (quoting CP at 589-90).

      Evergreen also relies on testimony from a single class member to argue Lee's claims rely on the "CBA's ten-minute continuous and 15-minute total standards" for rest breaks. Appellant's Br. at 24. But Lee's expectation of a continuous 10-minute break does not originate in the CBA. WAC 296-126-092(4) requires a rest break of at least 10 minutes, while WAC 296-126-092(5) merely allows for short, intermittent breaks over four hours to add up to a single 10-minute break. Whether some nurses take advantage of WAC 296-126-092(5) is a question germane to class certification and damages, neither of which are before us. Also, this argument admits that nurses can satisfy the break requirement in their CBA by totaling their short breaks over four hours even though this procedure is available only through WAC 296-126-092(5) and not section 7.7 of the CBA. It shows the CBA being administered by the regulation rather than superseding it.

      See United Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960) ; United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ; United Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

      See RCW 41.56.122(2) ("A collective bargaining agreement may .... (2) Provide for binding arbitration of a labor dispute arising from the application or interpretation of the matters contained in a [CBA].") (emphasis added); Mount Adams Sch. Dist. v. Cook, 150 Wash.2d 716, 723, 81 P.3d 111 (2003) (quoting Peninsula Sch. Dist., 130 Wash.2d at 413-14, 924 P.2d 13 ) (summarizing principles derived from the Steelworker's Trilogy).

      Vega v. New Forest Home Cemetery, LLC, 856 F.3d 1130, 1134 (7th Cir. 2017) : Civil Serv. Comm' of City of Kelso v. City of Kelso, 137 Wash.2d 166, 175, 969 P.2d 474 (1999) ; see Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 78-80, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) (concluding that the presumption favoring arbitrability in the Steelworker's Trilogy was inapplicable to a statutory claim).

      Wright, 525 U.S. at 79, 119 S.Ct. 391.

      E.g., Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465, 1473-79 (D.C. Cir. 1997) (discussing the historic background of the role of arbitration and distinguishing contractual and statutory claims).

      14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 258-59, 264, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009) (holding that employees subject to a CBA must arbitrate statutory claims where the CBA's "arbitration provision expressly covers both statutory and contractual discrimination claims.") (emphasis added); Wright, 525 U.S. at 79, 119 S.Ct. 391 ("[A]ny CBA requirement to arbitrate [a statutory claim] must be particularly clear.").

      Vega, 856 F.3d at 1134 (citing 14 Penn Plaza, 556 U.S. at 258-59, 129 S.Ct. 1456 ); Cox, 2 Wash. App. 2d at 404 ; cf. Kelso, 137 Wash.2d at 177, 969 P.2d 474 ("[W]here the two appeal processes are concerned with different substantive rights, this court will not impose an election of remedies clause [in a CBA] where none was bargained for by the parties.").

      856 F.3d 1130, 1131 (7th Cir. 2017).

      29 U.S.C. § 206(b).

      Vega, 856 F.3d at 1132.

      Id. at 1133. Notably, the mandatory grievance process in Vega authorized arbitration on the demand of either the union or the employer. Id. at 1131 n.1.

      Id. at 1135.

      Id.

      2 Wash. App. 2d 395, 405, 409 P.3d 1191 (2018).

      Id. at 399-400, 409 P.3d 1191.

      Id. at 404-05, 409 P.3d 1191.

      Id. at 405, 409 P.3d 1191

      556 U.S. 247, 251-52, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009).

      29 U.S.C. § 621.

      Id. at 251-52, 129 S.Ct. 1456.

      Id. at 260, 129 S.Ct. 1456.

      CP at 106.

      CP at 439.

      We note that our Supreme Court has held that a CBA may not abrogate a worker's right to periodic rest periods under chapter 49.12 RCW or WAC 296-196-092, and the statute must "operate as a base" from which parties may negotiate a CBA that "enhance[s] or exceed[s] those minimum standards." Wingert v. Yellow Freight Sys., Inc., 146 Wash.2d 841, 852, 50 P.3d 256 (2002) (quoting Wingert v. Yellow Freight Sys., Inc., 104 Wash. App. 583, 596, 13 P.3d 677 (2000) ). Thus, variances are still actionable as statutory claims to the extent the CBA abrogates an emergency room nurse's ability to enjoy the minimum rest and meal breaks guaranteed by the statute.

      CP at 107 ("If the grievance is not settled on the basis of the foregoing procedures, [WSNA] may submit the issue in writing to final and binding arbitration.") (emphasis added).

      14 Penn Plaza, 556 U.S. at 258-59, 129 S.Ct. 1456 ; Wright, 525 U.S. at 79, 119 S.Ct. 391 ; Cox, 2 Wash. App. 2d at 404, 409 P.3d 1191.

      Ch. 41.56 RCW.

      Appellant's Supp. Br. at 5-6.

      RCW 41.56.122(2).

      130 Wash.2d 401, 412, 924 P.2d 13 (1996).

      Id. at 403-05, 924 P.2d 13.

      Id. at 409, 924 P.2d 13.

      120 Wash.2d 394, 842 P.2d 938 (1992).

      130 Wash.2d at 412, 924 P.2d 13.

      120 Wash.2d at 401-02, 842 P.2d 938.

      Ch. 50.04 RCW.

      120 Wash.2d at 401-02, 842 P.2d 938.

      Id. at 410, 120 Wash.2d 394. We also note that PECBA's stated purpose is to provide " 'a uniform basis for implementing the right of public employees to join ... and to be represented by [labor] organizations in matters concerning their employment.' " Peninsula, 130 Wash.2d at 406-07, 924 P.2d 13 (quoting RCW 41.56.010). And cases cited by Evergreen implicating PECBA all involve infringements on a union's ability to represent its members. Peninsula, 130 Wash.2d at 403-04, 407, 924 P.2d 13 (school district refused to comply with CBA and enter arbitration after the union filed a grievance in conjunction with a terminated employee); Municipality of Metro. Seattle v. Pub. Emp't Relations Comm'n, 118 Wash.2d 621, 624, 631-34, 826 P.2d 158 (1992) (employer refused to comply with an order from the Public Employment Relations Commission mandating arbitration to advance the collective bargaining process between it and a union); Rose v. Erickson, 106 Wash.2d 420, 421-22, 721 P.2d 969 (1986) (employer refused to recognize a union employee's grievance filed pursuant to terms of the CBA); Nucleonics All., Local Union No. 1-369, Oil, Chem. & Atomic Workers Int'l Union, AFL-CIO v. Washington Pub. Power Supply Svs. (WPPSS), 101 Wash.2d 24, 25-27, 677 P.2d 108 (1984) (union sought to represent nonunion employees and employer opposed its efforts); SEIU 775 v. State Dep't of Soc. & Health Servs., 198 Wash. App. 745, 396 P.3d 369 (holding that PECBA does not prohibit a public employer's release of employees' names where the employees' union intervened to enjoin release of members' names under the Public Records Act), review denied, 189 Wash.2d 1011, 402 P.3d 828 (2017) ; The Council of County. & City Employees, AFSCME, AFL-CIO v. Spokane County, 32 Wash. App. 422, 647 P.2d 1058 (1982) (employer refused to recognize and arbitrate a grievance filed pursuant to CBA with the union). Here, by contrast, Evergreen's conduct implicates only private statutory rights and not collective bargaining rights. As in Shoreline Community College, PECBA does not appear to be germane to this litigation.

      Vega, 856 F.3d at 1134 ; Cox, 2 Wash. App. 2d at 404, 409 P.3d 1191. Evergreen has moved to strike portions of Lee's supplemental briefing, which she and Evergreen both filed at our request. First, Evergreen's motion to strike relied exclusively on materials outside the appellate record in violation of RAP 17.3(a). Second, Evergreen moved to strike only those portions of Lee's supplemental brief arguing that her claims are based solely on statutes, but a motion to strike is not the appropriate vehicle for arguments on the merits of an appeal. We deny the motion.

      Estate of Romney, 199 Wash. App. at 602, 399 P.3d 1220.

      Otis Hous. Ass'n, Inc. v. Ha, 165 Wash.2d 582, 587, 201 P.3d 309 (2009).

      Estate of Romney, 199 Wash. App. at 602, 399 P.3d 1220.

      Id. at 601-02, 399 P.3d 1220 (internal quotation marks omitted) (quoting Wiese, 189 Wash. App. at 480, 358 P.3d 1213 ).

      Martin, 829 F.3d at 1125 ; Petroleum Pipe Ams. Corp. v. Jindal Saw, Ltd., 575 F.3d 476, 480 (5th Cir. 2009) ; see Otis Housing Ass'n, 165 Wash.2d at 588, 201 P.3d 309, (litigating a parallel action before invoking right to arbitrate in a separate action on same merits waives the right); Naches Valley Sch. Dist. No. JT3 v. Cruzen, 54 Wash. App. 388, 395-96, 775 P.2d 960 (1989) (plaintiffs waived arbitration by filing for summary judgment on the merits of their claims).

      Hill v. Garda CL Nw. Inc., 169 Wash. App. 685, 692, 281 P.3d 334 (2012) (quoting Steele v. Lundgren, 85 Wash. App. 845, 853-55, 935 P.2d 671 (1997) ), rev'd on other grounds, 179 Wash.2d 47, 308 P.3d 635 (2013).

      Otis Hous. Ass'n., 165 Wash.2d at 588, 201 P.3d 309.

      See Appellant's Br. at 28-29 (Evergreen's "motion to compel arbitration was filed 15 days after the [c]ourt granted the motion to amend and plaintiffs filed the [s]econd [a]mended [c]omplaint.").

      See id. at 29-30 ("The combination of McFarland's deposition testimony, which was given before plaintiffs sought to amend the complaint, and the [s]econd [a]mended [c]omplaint made clear that the claims in this lawsuit arise under the CBA and require an interpretation of the CBA's express terms and past practices of the parties.").

      Compare CP at 439 (section VI of second amended complaint stating claims against Evergreen: "Defendant's practices under which Plaintiffs and the class did not receive meal and rest breaks violate RCW 49.12 and WAC 296-126-092."), with CP at 5, 17 (section VI of complaint and first amended complaint stating claims against Evergreen: "Defendant's practices under which Plaintiff and the class did not receive meal and rest breaks violate RCW 49.12 and WAC 296-126-092.").

      CP at 10.

      CP at 1793.

      CP at 1798.

      Martin, 829 F.3d at 1127.

      Steele, 85 Wash. App. at 859, 935 P.2d 671.

      Schuster v. Prestige Senior Mgmt., LLC, 193 Wash. App. 616, 643, 376 P.3d 412 (2016) ; Steele, 85 Wash. App. at 859, 935 P.2d 671. Evergreen argues that its motion to compel arbitration was not belated because it occurred only two weeks after the court approved Lee's second amended complaint. But this ignores the preceding nine months of litigation during which Evergreen knew it could arbitrate, and it attempts to elevate chronology over conduct.

      Steele, 85 Wash. App. at 859, 935 P.2d 671 ; see Martin, 829 F.3d at 1128 (holding the defendant waived arbitration "because the plaintiffs would be prejudiced if the defendants got a mulligan on a legal issue it chose to litigate in court and lost"); Riverside Publ'q Co. v. Mercer Publ'g LLC, 829 F.Supp.2d 1017, 1021-23 (W.D. Wash. 2011) (finding prejudice from the plaintiff's "forum shopping" when it belatedly moved to compel arbitration only after losing substantive pretrial motions).

      169 Wash. App. 685, 691-94, 281 P.3d 334 (2012).

      Id. at 688, 281 P.3d 334.

      Id. at 688-89, 691, 281 P.3d 334.

      Pellino v. Brink's Inc., 164 Wash. App. 668, 267 P.3d 383 (2011).

      Hill, 169 Wash. App. at 691, 281 P.3d 334.

      Id.

      Id. at 692, 281 P.3d 334.

      Id.

      Otis Hous. Ass'n, 165 Wash.2d at 588, 201 P.3d 309.