State of Washington v. David Joseph Brown

FILED
JANUARY 22, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 35304-4-III
)
Respondent, )
)
v. ) ORDER AMENDING OPINION
)
DAVID JOSEPH BROWN, )
)
Petitioner. )

IT IS ORDERED the opinion filed January 17, 2019, is amended as follows:

The first paragraph, second sentence on page one that reads:

This appeal asks if this statute compels a driver, who moved left from a middle

lane to a dedicated left turn lane while signally his intention to change lanes, to reactivate

his turn signal before turning left from the reserved turn lane.

SHALL BE AMENDED TO READ: This appeal asks if this statute compels a

driver, who moved left from a middle lane to a dedicated left turn lane while signaling his

intention to change lanes, to reactivate his turn signal before turning left from the

reserved turn lane.

PANEL: Judges Fearing, Lawrence-Berrey, Pennell

FOR THE COURT:

___________________________________
ROBERT LAWRENCE-BERREY,
Chief Judge
 FILED
JANUARY 17, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

STATE OF WASHINGTON, )
) No. 35304-4-III
Respondent, )
)
v. )
) PUBLISHED OPINION
DAVID JOSEPH BROWN, )
)
Petitioner. )

FEARING, J. — RCW 46.61.305(2) declares that a driver must, “when required,”

continuously signal an intention to turn or cross lanes during at least the last one hundred

feet traveled before turning or moving lanes. This appeal asks if this statute compels a

driver, who moved left from a middle lane to a dedicated left turn lane while signally his

intention to change lanes, to reactivate his turn signal before turning left from the

reserved turn lane. We hold that the statute only requires use of a signal in circumstances

that implicate public safety. Because the circumstances surrounding David Brown’s left-

hand turn from a left-turn-only lane did not jeopardize public safety, we hold that

Trooper Mason Acheson lacked grounds to stop David Brown’s vehicle. We affirm the

district court’s ruling that suppressed evidence resulting from the stop of Brown and
No. 35304-4-III
State v. Brown

reverse the superior court’s reversal of the district court’s decision. In doing so, we

educate ourselves in turn signal technology.

FACTS

We borrow most facts from the district court’s findings of fact. On the evening of

March 22, 2015, Trooper Mason Acheson patrolled the streets of Kennewick. At 10:15

p.m., while traveling eastbound on Clearwater Avenue, Trooper Acheson saw appellant,

David Brown, driving a Toyota Tundra, turn right from Huntington Street onto

Clearwater Avenue, a four-lane arterial. During the turn, the left side tires of the Tundra,

a large pickup, crossed the white dashed divider line between the two eastbound lanes by

one tire width for a brief moment, after which the vehicle fully returned to its lane of

travel. Brown’s diversion across the dividing line did not endanger any travel. Acheson

observed Brown’s tires cross the white dashed divider line, and he continued to view

Brown’s driving thereafter.

Shortly after entering Clearwater Avenue, David Brown signaled his intent to

change lanes, and to move to the left or inner eastbound lane, by activating his left turn

signal that blinked numerous times. Brown entered the inner lane of the two lanes.

Soon David Brown approached the intersection of Clearwater Avenue and

Highway 395, where the eastbound lanes widen to three lanes. The innermost of the

three lanes becomes a designated left turn only lane. Brown again wished to change

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State v. Brown

lanes so he could turn left. Brown signaled his intent to move left into the dedicated turn

lane. Brown maneuvered his vehicle into the dedicated turn lane, at which point the left

turn signal cycled-off.

The parties employ and the district court incorporated the term “cycle off,” a term

with which we were not familiar, before this appeal, in the context of vehicle signal

lights. The turn signal for most cars includes a self-cancelling feature that returns the

horizontal signal lever to the neutral, or no signal, position as the steering wheel

approaches the straight forward position after completion of a turn. We assume “cycle

off” refers to the activation of the self-cancelling feature. Most cars now incorporate the

additional turn signal feature of a spring-loaded momentary signal position activated

when the driver partially depresses or raises the horizontal stalk. The signal then operates

however long the driver holds the lever partway toward the left or right turn signal detent.

A driver typically lowers or raises the spring-loaded momentary signal feature when

changing lanes as opposed to executing a turn from one street to another. The parties’

nomenclature and the district court’s findings of fact suggest David Brown did not

employ the momentary signal when changing lanes on the second occasion while

traveling east on Clearwater Avenue.

David Brown stopped his vehicle in the dedicated left turn lane while awaiting the

light to turn green. He did not reactivate his turn signal. Trooper Mason Acheson pulled

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State v. Brown

behind Brown. No other traffic was present on eastbound Clearwater Avenue. When the

light turned green, Brown turned left onto northbound Highway 395. Trooper Mason

Acheson then actuated his patrol vehicle’s emergency light and stopped Brown.

Trooper Mason Acheson stopped David Brown based on Brown’s crossing the

eastbound lanes’ divider line during his turn from Huntington Street onto Clearwater

Avenue. He did not stop Brown based on Brown’s failure to signal his left turn onto

Highway 395. After stopping Brown, Trooper Acheson investigated Brown for suspicion

of driving under the influence of intoxicants. Acheson arrested Brown for driving under

the influence.

PROCEEDINGS

The State of Washington charged David Brown with driving while under the

influence of intoxicants. Brown filed a motion to suppress evidence garnered from the

stop of his car by Trooper Mason Acheson. He argued that the state trooper lacked cause

to stop his vehicle. During the suppression hearing, the district court entertained

testimony from Mason Acheson.

The State principally contended, before the district court, that State Trooper

Mason Acheson possessed probable cause to stop David Brown because of Brown’s

crossing of the dashed dividing line between the two eastbound lanes on Clearwater

Avenue when turning right from Huntington Street. The district court concluded that,

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State v. Brown

because Brown, as reasonably as practical, kept his vehicle within his lane when turning

right onto Clearwater Avenue, the crossing of the dividing line on the avenue did not

violate the traffic code. Therefore, Trooper Acheson lacked probable cause to stop

Brown for crossing the line.

The State of Washington moved for reconsideration and added, based on the

suppression hearing testimony of Trooper Mason Acheson, that Acheson had additional

reason to stop David Brown since Brown violated RCW 46.61.305 when turning left onto

Highway 395. The statute references use, for a continuous one hundred feet, of a turn

signal before turning left or right.

With the motion for reconsideration, the district court needed to determine if

David Brown’s failure to activate his turn signal before turning left onto the highway

afforded probable cause. The district court reasoned:

3. Based upon the evidence presented, there was insufficient time
and distance for the Defendant to comply with the signal statute while
executing the lane change to enter the dedicated left turn lane at the
intersection of Clearwater Ave. and SR 395. The Defendant complied with
the signal statute as best he could and due to the impossibility to comply
with the signal statutes requirement of signaling for 100 feet prior to
making a lane change the Defendant cannot be in violation of said
provision when it was impossible to comply with such.
4. The intent of turn signals is to notify other drive[r]s where the
Defendant was intending to travel. Trooper Acheson’s testimony
confirmed that not only did he kn[o]w where the Defendant intended to
travel but in fact the Defendant did travel in the direction Trooper Acheson
suspected he would go and[,] therefore, [t]he Defendant wasn’t required to

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State v. Brown

re-indicate the direction he was turning from the dedicated left turn lane at
the intersection of east bound Clearwater Ave. and north bound SR 395 as
the Defendant had already signaled his intent to enter that lane prior to
entering it.

Clerk’s Papers (CP) at 13. The district court concluded that, because Brown violated no

traffic law, Trooper Acheson lacked probable cause to initiate the traffic stop. The

district court suppressed all evidence gained from the stop and thereafter dismissed the

prosecution.

The State of Washington appealed the dismissal to the superior court. The

superior court adopted the district court’s findings of fact. Nevertheless, the superior

court held that the district court erred when suppressing the evidence of intoxication

gathered after the traffic stop. According to the superior court, David Brown violated

RCW 46.61.305(2), which requires a continuous signal of one’s intent to turn during the

last one hundred feet before turning left. Because Trooper Mason Acheson observed

Brown’s failure to continuously signal before turning left onto the highway, Acheson

gained reasonable suspicion of a traffic infraction. The superior court remanded the case

to the district court for further proceedings.

David Brown sought discretionary review, before this court, of the superior court’s

decision. Our court commissioner granted review. Comm’r’s Ruling, State v. Brown,

No. 35304-4-III (Wash. Ct. App. Oct. 17, 2017).

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State v. Brown

LAW AND ANALYSIS

In response to David Brown’s appeal, the State does not argue that Trooper Mason

Acheson held probable cause to stop Brown based on his clumsy right turn onto

Clearwater Avenue from Huntington Street. Therefore, this appeal addresses only

whether Acheson possessed probable cause to stop Brown because of Brown’s failure to

signal his left turn onto Highway 395.

We previously outlined the facts based on the district court’s findings of fact as

adopted by the superior court. Neither party challenges the findings of fact before this

court. Unchallenged findings of fact are verities on appeal. State v. Luther, 157 Wn.2d

63, 78, 134 P.3d 205 (2006).

A law enforcement officer may conduct a warrantless traffic stop under article I,

section 7 of the Washington Constitution as an investigative stop if based on at least a

reasonable articulable suspicion of either criminal activity or a traffic infraction. State v.

Arreola, 176 Wn.2d 284, 292-93, 290 P.3d 983 (2012). We must determine whether

David Brown’s conduct provided reasonable suspicion of a traffic violation.

The primary issue on appeal is whether, under RCW 46.61.305, a driver must

reinitiate his turn signal after he signals to enter a left-turn-only lane, enters the lane, and

the turn signal cancels before the turn from the lane. Subsections one and two of RCW

46.61.305 declare:

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State v. Brown

When signals required—Improper use prohibited. (1) No person shall
turn a vehicle or move right or left upon a roadway unless and until such
movement can be made with reasonable safety nor without giving an appropriate
signal in the manner hereinafter provided.
(2) A signal of intention to turn or move right or left when required shall be
given continuously during not less than the last one hundred feet traveled by the
vehicle before turning.

(Emphasis added.) The issue on appeal demands that we indirectly determine what

constitutes an appropriate signal “in the manner hereinafter provided” under subsection 1

of the statute and directly assess “when” a signal is “required” under subsection 2 of the

statute.

David Brown contends that the statute did not require him to reactivate his left

turn signal as he had already indicated his intent to turn left when he signaled to enter the

dedicated turn lane and entered the lane. Brown emphasizes that Trooper Mason

Acheson knew where Brown intended to travel, and Brown executed the turn with

reasonable safety.

The State argues that the heading of RCW 46.61.305 and the language in

subsection 1 of the statute define the phrase “when required” found in subsection 2. The

heading contains the phrase “when signals required.” In turn, subsection 1 demands that

a signal be given before any person turning a vehicle or moving right or left on a

roadway. Subsection 1 also reads that the signal should be given “in the manner

hereinafter provided.” According to the State, subsection 2 establishes “the manner

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State v. Brown

hereinafter provided” by demanding signaling for one hundred consecutive feet before

the turn. The State observes that RCW 46.61.305 does not read that an intent to turn may

be signaled solely by traveling in an earmarked turn lane. According to the State, drivers

traveling from the other three directions to the intersection are not apprised of the driver’s

intent to turn absent a signal.

When interpreting statutory provisions, this court primarily seeks to effectuate the

intent of the legislature. State v. Sullivan, 143 Wn.2d 162, 174-75, 19 P.3d 1012 (2001).

In attempting to discern the legislative intent behind RCW 46.61.305, at least within the

context of this appeal, we first review the history behind the traffic signal statute.

Second, we examine case law from other jurisdictions that interprets the meaning of

“when required” contained in code provisions similar to that of Washington’s RCW

46.61.305. Third, we parse the wording of RCW 46.61.305.

Legislative History

The Washington Legislature patterned Title 46 RCW after the 1962 Uniform

Vehicle Code (UVC). City of Seattle v. Williams, 128 Wn.2d 341, 349 n.9, 908 P.2d 359

(1995). The 1965 version of RCW 46.61.305(2) was identical to § 11-604(b) of the

UVC. LAWS OF 1965, Ex. Sess., ch. 155, § 43(2). The UVC section read:

A signal of intention to turn right or left when required shall be
given continuously during not less than the last 100 feet traveled by the
vehicle before turning.

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State v. Brown

Uniform Vehicle Code § 11-604(b) (1968) (emphasis added). In 1975, the Washington

Legislature added the words “or move” to arrive at the present-day form of the statute, “A

signal of intention to turn or move right or left . . . .” LAWS OF 1975, ch. 62, § 30

(emphasis added).

At least twenty states have adopted language identical to UVC § 11-604(b). Nat’l

Comm. on Uniform Traffic Laws & Ordinances, TRAFFIC LAWS ANNOTATED § 11-

604(b), statutory annot. (1979) (TLA). Five other states adopted the identical language

absent the phrase “when required.” TLA § 11-604(b), statutory annot. n.1 (1979). With

regard to the difference between those versions with the phrase “when required” and

those without the phrase, the drafters of the UVC wrote that use of the phrase “is not

important.” TLA, § 11-604(b), statutory annot. n.1 (1979). This excerpt from the

drafters’ notes supports the State’s argument that “when required” can be read in context

of RCW 46.61.305(1), which states that a person must signal when turning or moving to

the right or the left on a roadway.

Foreign Decisions

We review decisions emphasized by the parties. David Brown forwards State v.

Dixon, 206 S.W.3d 587 (Tex. Crim. App. 2006) and Bowers v. State, 221 Ga. App. 886,

473 S.E.2d 201 (1996) as supportive of his position. The State highlights Wehring v.

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State v. Brown

State, 276 S.W.3d 666 (Tex. App. 2008), State v. Bea, 318 Or. 220, 864 P.2d 854 (1993),

and United States v. Garcia, 178 F. Supp. 3d 1250 (S.D. Ala. 2016) in support of its

position. We adjudge Bowers and Garcia to best delineate the parties’ respective

positions, and we discuss those cases now. We analyze the other three decisions in an

appendix because of important distinctions from this appeal present in the reported cases.

In Bowers v. State, 221 Ga. App. 886, 473 S.E.2d 201 (1996), the Georgia

intermediate appellate court addressed whether Deputy Todd made a lawful traffic stop.

As William Gilliam drove a van on an interstate highway, he changed lanes without

signaling. Deputy Todd saw the lane change from a distance of one hundred yards. No

other vehicles were present. The State presented no evidence that Gilliam changed lanes

unsafely. After the stop, a drug dog smelled cocaine in the trunk of the stopped van. On

prosecution for possession of a controlled substance, driver Gilliam and his passenger

Sheena Bowers filed a motion to suppress evidence of the controlled substance on the

basis of an unlawful stop.

A Georgia statute declared:

(a) No person shall . . . change lanes or move right or left upon a
roadway unless and until such movement can be made with reasonable
safety. No person shall so turn any vehicle without giving an appropriate
and timely signal in the manner provided in this Code section.
(b) A signal of intention to turn right or left or change lanes when
required shall be given continuously for a time sufficient to alert the driver

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State v. Brown

of a vehicle proceeding from the rear in the same direction or a driver of a
vehicle approaching from the opposite direction.

GA. CODE ANN. § 40-6-123 (emphasis added). The Georgia court reasoned that the

legislature did not intend to require a turn signal if the lane change could be executed

with “reasonable safety.” Otherwise, the use of the phrase “when required” would be

rendered meaningless. Activating a turn signal seeks to alert other drivers to the turn.

According to the court, this purpose should control when interpreting the phrase “when

required.” Since the only car was one hundred yards away, Gilliam did not need to signal

his lane change. In turn, Deputy Todd lacked an objective basis for the traffic stop. One

wonders if the Georgia court would have ruled differently if Gilliam drove amidst a

gaggle of traffic.

The federal district court in, United States v. Garcia, 178 F. Supp. 3d 1250 (S.D.

Ala. 2016), rejected the interpretation rendered in Bowers of the turn signal statute, while

faulting the Georgia appellate court for overlooking the history behind the Uniform

Vehicle Code. The Alabama version of the UVC-patterned signal requirement read:

(a) No person shall turn a vehicle or move right or left upon a
roadway unless and until such movement can be made with reasonable
safety nor without giving an appropriate signal in the manner hereinafter
provided.
(b) A signal of intention to turn right or left when required shall be
given continuously during not less than the last 100 feet traveled by the
vehicle before turning.

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State v. Brown

Ala. Code § 32-5A-133 (emphasis added). The Garcia court observed that the phrase

“when required” found in subsection (b) of the Alabama statute had been in UVC § 11-

604(b) since 1944. At the time the phrase was added to the UVC, § 11-604(a) required a

signal only when “other traffic may be affected by such movement.” In other words, the

first paragraph did not mention the need to always signal. According to the federal lower

court, the drafters of the UVC amended § 11-604(a) in 1962 to always require a signal

when changing lanes but failed to remove “when required” in § 11-604(b). The Garcia

court reasoned that, although its ruling rendered the language “when required”

superfluous, drafters of UVC, § 11-604(a) and the Alabama statute intended to always

require a signal. The federal court rejected Pedro Picasso Garcia’s motion to suppress

drugs obtained during search of his vehicle after a traffic stop. A law enforcement officer

stopped Garcia’s car when he executed a lane change on an interstate highway without

signaling.

Words and Structure of RCW 46.61.305

We now examine the precise language of RCW 46.61.305(1) and (2). We repeat

the subsections and highlight the critical words:

(1) No person shall turn a vehicle or move right or left upon a roadway
unless and until such movement can be made with reasonable safety nor without
giving an appropriate signal in the manner hereinafter provided.
(2) A signal of intention to turn or move right or left when required shall be
given continuously during not less than the last one hundred feet traveled by the

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State v. Brown

vehicle before turning.

(Emphasis added.)

In reading the legislature’s expressions in RCW 46.61.305, we first note the

circular nature of the first two subsections of the statute. Subsection one demands an

“appropriate signal in the manner hereinafter provided.” Subsection one does not

expressly direct the reader to the statute or statutory subsection where the reader can find

“the manner hereinafter provided.” In other words, subsection one does not identify the

location of the “hereinafter.” Subsection two may constitute the “manner hereinafter

provided,” but the reader cannot be certain. Assuming subsection two comprises the

“hereinafter,” the subsection only demands a signal “when required.” Presumably the

reader must then return to subsection one to discern when the signal is required, but

subsection one directs the reader to the “hereinafter.” The reader remains guessing as to

when the statute requires a signal.

As previously noted, the State argues that RCW 46.61.305(1) provides that turn

signals are always required prior to a vehicle turn on a roadway and RCW 46.61.305(2)

merely sets forth the manner in which turn signals are to be deployed. The dissent agrees

with this approach. We disagree.

The State in essence contends that the words “when required,” as set forth in RCW

46.61.305(2) are mere surplusage. According to the State, a turn signal is always

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State v. Brown

required prior to a turn. This was the position taken by the United States District Court in

United States v. Garcia, 178 F. Supp. 3d 1250 (S.D. Ala. 2016), previously discussed.

Garcia analyzed the history behind the Uniform Vehicle Code. According to the Garcia

court, the phrase “when required” entered the code when the code required a turn signal

only when “other traffic may be affected by such movement.” United States v. Garcia,

178 F. Supp. 3d at 1253 (quoting TLA § 11-604). The code drafters amended the code to

always require a signal when changing lanes but failed to remove “when required.”

We note that the drafters of the Uniform Vehicle Code amended the relevant

section in 1962. The Washington State Legislature amended RCW 46.61.305 twice after

1962 and in 1965 and 1975. The legislature could have and should have omitted the

words “when required” from subsection 2 of the statute if it wished to do so during the

amendments. We further observe that the Washington State Legislature adopted the

language “without giving an appropriate signal in the manner hereinafter provided” for

the first time in subsection 1 of the statute in 1965, and the legislature first adopted the

language “when required” in subsection 2 also in the same 1965 enactment. LAWS OF

1965, EX. SESS., 1965, ch. 155, § 43. So, the two provisions entered the statute at the

same time.

The dissent emphasizes the Uniform Vehicle Code drafters’ comment that the

words “when required” lack importance. The dissent’s emphasis might triumph if the

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State v. Brown

code drafters, not the Washington State Legislature, passed RCW 46.61.305. We must

assume the state legislature intended some meaning with the phrase. One wonders why

the uniform code drafters have neglected to remove the expression during the last fifty

years if the drafters deem the phrase unimportant.

The United States v. Garcia holding assumes that the legislature committed a

mistake by keeping “when required” within RCW 46.61.305(2). Nevertheless, our duty

is to interpret the statute’s vague or ambiguous provisions in a manner consistent with its

objective, and not to correct legislative mistakes. State ex rel. Hagan v. Chinook Hotel,

Inc., 65 Wn.2d 573, 578-79, 399 P.2d 8 (1965). Rewriting the statute and correcting any

inconsistency remains with the legislature. Millay v. Cam, 135 Wn.2d 193, 203, 955 P.2d

791 (1998).

We cannot ignore the words “when required,” found in RCW 46.61.305(2). The

legislature’s decision to retain the words “when required” in the statute suggests some

circumstances exist, during which a turn signal is not required. Otherwise, the term

“when required” would bear no meaning. We must construe an act as a whole, giving

effect to all the language used. Cannabis Action Coalition v. City of Kent, 180 Wn. App.

455, 477, 322 P.3d 1246 (2014), aff’d, 183 Wn.2d 219, 351 P.3d 151 (2015). To this

end, our task is to discern when circumstances do not require use of a turn signal, not to

ignore the language chosen by the legislature.

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State v. Brown

In addition, continuous use of a turn signal prior to a turn is not always feasible,

given the mechanical nature of turn signal devices. We note that David Brown might

have encountered difficulty in continuously signaling when he moved to the left-turn-

only lane. When he moved into the left turn lane from what became the middle lane and

thereafter straightened his car, his turn signal “cycled off” or ended. He would have

needed to activate his signal again, but some time, no matter how short, would have

elapsed between the ending of the signal and its recommencement. The district court

noted this phenomenon in its ruling. Of course, Brown could have employed the

momentary blinker function as he moved from lane to lane and immediately depressed

the standard signal function once in the dedicated turn lane without significant cessation

in the signaling. We doubt, however, that the legislature wished to distinguish between

the momentary spring-loaded function and the standard function of the turn signal when

determining the need to signal or that the legislature investigated the length in the pause

of continuous signaling resulting from the driver employing the different functions. We

doubt the legislature expected the driver to know that he or she should use the momentary

function when moving into the dedicated turn lane and then switch to the standard

function once in the turn lane.

RCW 46.61.305, entitled “When signals required—Improper use prohibited,”

opens with a mandate that drivers execute turns in a manner consistent with public safety.

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State v. Brown

This link between the required use of a turn signal and public safety informs our

interpretation of the statute. A driver generally cannot safely change directions on a

roadway “unless” he or she notifies others in the area of this intent by use of a signaling

device. Even when a driver attempts a turn from a dedicated turn lane, a turn signal may

be necessary in order to alert other drivers and pedestrians, who may not be in a position

to discern the nature of the dedicated lane. Given that vehicular turns are often made in

the vicinity of other traffic, the public safety requirement of RCW 46.61.305(1)

contemplates a general requirement that a driver use a turn signal prior to changing the

direction of travel. Because public safety is the only true requirement that can be gleaned

from RCW 46.61.305(1), we hold that a turn signal is only “required” as contemplated by

subsection 2 when public safety is implicated, as indicated in subsection 1. In safety-

related circumstances, a turn signal must “be given continuously during not less than the

last one hundred feet traveled by the vehicle before turning.” RCW 46.61.305(2).

However, if a left- or right-hand turn can be made safely without the use of a signal, no

signal is required.

The facts on appeal establish that no traffic, other than the trailing state trooper,

was on the roadway when David Brown used a designated left-hand turn lane to travel

from Clearwater Avenue onto Highway 395. His execution of a turn without signaling

caused no possible concern for public safety. Given this circumstance, Brown’s failure to

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State v. Brown

utilize a turn signal did not violate the plain terms of RCW 46.61.305 and did not justify

Trooper Mason Acheson’s traffic stop.

Mistake in Law

The State argues that, even if we rule that David Brown did not violate RCW

46.61.305(2), Trooper Mason Acheson reasonably believed that Brown breached the

statute and a law enforcement officer’s reasonable belief creates probable cause. Stated

differently, Mason Acheson may have made a mistake of law, but he made a reasonable

mistake of law. In Heien v. North Carolina, ___ U.S. ___, 135 S. Ct. 530, 190 L. Ed. 2d

475 (2014), the nation’s high Court held that a mistake in law, if reasonable, can create

reasonable suspicion for purposes of a traffic stop. In so ruling, the Court characterized a

mistake of law as being the same as a mistake of fact for purposes of the officer forming

a reasonable suspicion. Under United States Supreme Court Fourth Amendment

jurisprudence, an officer’s mistake of fact does not negate reasonable suspicion for an

investigation.

David Brown relies on article I, section 7 of the Washington Constitution, in

addition to the Fourth Amendment of the United States Constitution. The Washington

Supreme Court has never incorporated an officer’s innocent mistake of fact or good faith

into the reasonable suspicion analysis for purposes of the state constitution. State v.

Afana, 169 Wn.2d 169, 179-80, 233 P.3d 879 (2010); State v. Creed, 179 Wn. App. 534,

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State v. Brown

541-43, 319 P.3d 80 (2014); State v. Rose, 75 Wn. App. 28, 35-36, 876 P.2d 925 (1994),

rev'd on other grounds, 128 Wn.2d 388, 909 P.2d 280 (1996). The United States

Constitution prohibits unreasonable searches and seizures; whereas, our state constitution

goes further and requires actual authority of law before the State may disturb the

individual's private affairs. State v. Day, 161 Wn.2d 889, 893, 168 P.3d 1265 (2007).

Therefore, we conclude that the Washington Supreme Court would not permit a mistake

of law to be grounds for reasonable suspicion and rule accordingly. The State provides

no case law to the contrary.

CONCLUSION

We reverse the superior court. We reinstate the district court's grant of David

Brown's motion to suppress and the district court's dismissal of the charge of driving

while under the influence.

Fearing, J. f

I CONCUR:

Pennell, J.

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State v. Brown
Appendix

APPENDIX

The reviewing court, in a muddled decision in State v. Dixon, 206 S.W.3d 587

(Tex. Crim. App. 2006), upheld the suppression of evidence gathered during a traffic

stop. The court held the stop leading to the discovery of the controlled substance to be

unlawful. The arresting officer observed that Richard Dixon executed a right turn from a

right turn lane and later a left turn from a left turn lane, each time without signaling.

David Brown contends that Dixon stands for the proposition that a turn signal is not

required when the turn is made from a dedicated left or right turn lane. We disagree. The

trial court and the reviewing court focused on the officer trailing Dixon for 3.2 miles after

the allegedly unlawful turns. The ruling implies that the officer conducted a pretextual

stop.

In Wehring v. State, 276 S.W.3d 666, 670 (Tex. App. 2008), the Texas court

disagreed with the holding in State v. Dixon. The Wehring court held that a turn signal is

required for one hundred feet even when the driver is in a dedicated turn lane. Jeremy

Wehring failed to employ a turn signal when turning from a dedicated right turn lane.

The State charged Wehring with driving while intoxicated. Wehring alleged that the

initial traffic stop was illegal. The Texas statute read:

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State v. Brown
Appendix

“(a) An operator shall use the signal authorized by Section 545.106
to indicate an intention to turn, change lanes, or start from a parked
position.
“(b) An operator intending to turn a vehicle right or left shall signal
continuously for not less than the last 100 feet of movement of the vehicle
before the turn.”

Wehring v. State, 276 S.W.3d at 670 (quoting TEX. TRANSP. CODE ANN. § 545.104).

Subsection (b) of the statute read similarly to RCW 46.61.305(2) except the statute

omitted the phrase “when required,” language we deem critical to our reading of the

Washington statute. The Texas reviewing court affirmed the legality of the traffic stop.

According to the court, the statute included no exception for those situations in which the

driver has only one direction to turn. The statute provided a bright line rule. Since

Wehring violated the traffic statute, the law enforcement officer held cause to stop him.

In State v. Bea, 318 Or. 220, 864 P.2d 854 (1993), the State charged Randall Bea

with possession of a controlled substance and failure to present a driver’s license after a

law enforcement officer stopped him for failure to signal a traffic turn. The officer

followed Bea as he drove north on Kerby Avenue. After several blocks, Bea came to an

L-shaped intersection of Kerby Avenue and Sumner Street. Kerby terminated at its

intersection with Sumner. Sumner also terminated at the intersection. No stop sign

controlled the intersection. Bea went left from Kerby onto Sumner, the only direction in

which he could have continued to travel on a public street. He did not signal.

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One Oregon statute, OR. REV. STAT. (ORS) § 811.335, reviewed in State v. Bea

read:

“(1) A person commits the offense of making an unlawful or
unsignaled turn if the person is operating a vehicle upon a highway and the
person turns the vehicle right or left when:
“. . . .
“(b) The person fails to give an appropriate signal continuously
during not less than the last 100 feet traveled by the vehicle before turning.”

State v. Bea, 318 Or. at 225. A second Oregon statute, former ORS § 811.400

(1983), declared:

“(1) A person commits the offense of failure to use an appropriate
signal for a turn, lane change or stop if the person is operating a vehicle that
is turning, changing lanes, stopping or suddenly decelerating and the person
does not make the appropriate signal under ORS 811.395 [describing hand
signals and signal lights].”

State v. Bea, 318 Or. at 226. Neither statute contained the words “when required.”

The Oregon Court of Appeals, in State v. Bea, concluded that former ORS

811.400(1), relating to signaling when “turning,” did not apply to Randall Bea’s action

because, when he went left from Kerby Avenue onto Sumner Street, he did not deviate

from his presumed course of travel. He went in the only direction he could proceed. The

court thereby reversed Bea’s convictions, since the officer had no grounds to stop his

travel.

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State v. Brown
Appendix

The Oregon Supreme Court reversed the state Court of Appeals in State v. Bea.

The Supreme Court noted that neither ORS 811.335 nor former ORS 811.400 defined

what driving maneuver constitutes a “turn.” The court applied the ordinary meaning of

the word “turn,” which includes the action that occurs when a vehicle arrives at the

juncture of two streets, changes its direction of travel, and changes from one course of

street to another. David Brown’s appeal does not concern the meaning of the word

“turn.”

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 No. 35304-4-III

LAWRENCE-BERREY, C.J. (dissenting) - A court's fundamental objective when

interpreting a statute is to determine and give effect to the legislature's intent. State v.

Larson, 184 Wn.2d 843, 848, 365 P.3d 740(2015). The majority journeys to other states

to ascertain our legislature's intent. No such journey is required when a plain meaning

analysis of RCW 46.61.305 results in only one reasonable interpretation. For this reason,

I dissent.

This court is asked to determine whether RCW 46.61.305 requires a person to

signal before turning from one road onto another road. RCW 46.61.305 states:

When signals required-Improper use prohibited. ( 1) No person shall
turn a vehicle or move right or left upon a roadway unless and until such
movement can be made with reasonable safety nor without giving an
appropriate signal in the manner hereinafter provided.
(2) A signal of intention to turn or move right or left when required shall be
given continuously during not less than the last one hundred feet traveled by the
vehicle before turning.

(Second emphasis added.)

"We look first to the plain language of the statute as '[t]he surest indication of

legislative intent.'" Larson, 184 Wn.2d at 848 (quoting State v. Ervin, 169 Wn.2d 815,

820, 239 P.3d 354(2010)). To effect legislative intent, we read the statute as a whole and

harmonize its provisions by reading them in context with related provisions. Segura v.

Cabrera, 184 Wn.2d 587,593,362 P.3d 1278 (2015).
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No. 35304-4-III
State v. Brown - dissenting

If the plain language is unambiguous, subject to only one reasonable

interpretation, our inquiry ends. State v. Velasquez, 176 Wn.2d 333,336,292 P.3d 92

(2013 ). A statute is not ambiguous merely because multiple interpretations are

conceivable. Id. When the plain meaning of statutory language is unambiguous, we do

not use secondary tools of construction. Id.

The State argues that subsections ( 1) and (2) can be harmonized by reading them

in context with one another. I agree. The above italicized words make clear that

subsection ( 1) explains when signaling is required, and subsection (2) explains the

manner of signaling. Subsection ( 1) states that signaling is required when a person

"tum[s] a vehicle or move[s] right or left upon a roadway." RCW 46.61.305(1).

Subsection (2) states that the manner of signaling is "continuously during not less than

the last one hundred feet traveled by the vehicle before turning." RCW 46.61.305(2).

Reading the two provisions in context, there is no other reasonable interpretation.

Here, David Brown failed to signal before he turned from one road onto another

road. I would conclude that Mr. Brown violated RCW 46.61.305 and that Trooper

Mason Acheson had authority to conduct a reasonable stop.

Although this is all that needs to be said, an additional rule for giving statutory

language its plain meaning also is satisfied by this construction. The additional rule

requires that we "' construe statutes [so] that all of the language is given effect.'" Lake v.

Woodcreek Homeowners Ass 'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (quoting

Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003)). My

2
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No. 35304-4-III
State v. Brown - dissenting

proffered construction does give meaning to the statutory phrase "when required."

"When required" refers back to subsection ( 1). Although this meaning gives the phrase

less importance than what the majority gives it, the code drafters wrote that the phrase "is

not important." Majority at 10. When the code drafters themselves write that a phrase is

unimportant, legislative intent is effected by giving less import to the unimportant.

RCW 46.61.305( 1) does prohibit turning or moving a vehicle when it cannot be

done with reasonable safety. This prohibition concerns when one may turn, not when

signaling is required. By conflating the two concepts, the majority reads words into the

statute that are not there.

Lawrence-Berrey, C.J.

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