Walk v. State, Dept. of Licensing

Brown, J.

(concurring in part, dissenting in part) — I *660concur in the majority’s analysis interpreting WAC 448-13--040 to permit one officer to observe the safeguards and affirm to another officer administering the BAC Verifier Data-Master test the relevant information. However, I respectfully dissent to the reasoning and conclusion that this record is insufficient to show the relevant information was communicated from Deputy Chad Birkenfeld to Deputy John Eberle. Finding of Fact 7 and 11 sufficiently support Conclusion of Law 6, assuming reasonable inferences from this record. Although Mr. Walk assigns error to Finding 11, Finding 7 is unchallenged and thus is a verity for purposes of review. See Initiative 172 (Fair Play for Wash.) v. Western Wash. Fair Ass’n, 88 Wn. App. 579, 583, 945 P.2d 761 (1997). Finding 7 provides:

At the direction of Deputy Birkenfeld the BAC Verifier Test was administered to Mr. Walk by Deputy Eerie, also of the Kit-titas County Sheriffs Department.

Finding 11 provides:

Breath Test Document Number 791723 (exhibit 2-8) lists Deputy Eberle as the BAC Operator. In preparing this document Deputy Eberle entered into the BAC Machine that the observation time began an (sic) 10:56 EM.

Conclusion 6 provides:

A reasonable inference is drawn that Deputy Eberle, prior to administering the breath-test to Mr. Walk, made the determinations required by WAC 448-13-040 based upon the mouth-check and observation period initiated by Deputy Birkenfeld at 10:56 EM. (see exhibit 2-4). This same time, 10:56 EM., appears as the time observation began on Breath Test Document Number 791723, prepared by Deputy Eberle, (see exhibit number 2-8).

Both deputies were at the scene and working together. This process continued at the station. Deputy Birkenfeld observed Mr. Walk and Deputy Eberle administered the test. Deputy Eberle arrived at the station at 11:20 p.m., after Deputy Birkenfeld began observation at 10:56 p.m. That Deputy Birkenfeld failed to communicate his observations *661to Deputy Eberle is not an assignment of error or issue raised by Mr. Walk. Neither party has briefed the issue.

First, reversal should not be based upon an issue not set forth by the parties in their briefs. RAP 12.1(a). Second, assuming the issue was properly before us, communication from Deputy Birkenfeld to Deputy Eberle is an essential assumption and inference drawn by both the hearing officer and Mr. Walk and supported by this record. The hearing examiner draws this inference in Conclusion 6. Mr. Walk twice assumes at page 4 of his brief that the BAC testing officer “receive[d]” information from his “fellow officer” (or any third person) for the purpose of framing his interpretation issue that we have decided adversely to him. Further, Mr. Walk at page 8 of his brief says: “Deputy Birkenfeld commenced the observation period at 22:56 and sat with Appellant Walk until 23:20, at which time Deputy Eberle arrived who spent 4 minutes in administering the actual blowing into the machine for the two test samples.” Mr. Walk’s issue relates exclusively to Deputy Eberle not being “present during the entire, uninterrupted minimum 15-minute observation period” (emphasis added) and not seeing the mouth check, not that one deputy failed to communicate the relevant information to the other. (Appellant’s Br. at 8).

Even though not an issue raised by the parties, substantial evidence does exist to support the proposition that Deputy Birkenfeld communicated the relevant information to Deputy Eberle. Substantial evidence must support the conclusion that the alleged fact (communication) is as alleged either directly or by reasonable inference. Cook v. Cook, 80 Wn.2d 642, 646, 497 P.2d 584 (1972). An inference that a fact or proposition is as alleged is drawn by a process of deductive reasoning as a logical consequence from other facts proved or admitted. Braegelmann v. Snohomish County, 53 Wn. App. 381, 383, 766 P.2d 1137, review denied, 112 Wn.2d 1020 (1989).

This record shows that Deputy Birkenfeld and Deputy Eberle were together during some portion of the observa*662tion period, the deputies were together when the BAC testing began, and that Deputy Eberle recorded data in the BAC test record collected by and first known solely to Deputy Birkenfeld. Moreover, it is stated as an uncontested fact from Finding 7 that Deputy Eberle administered the BAC test “[a]t the direction of Deputy Birkenfeld.” (Emphasis added.) The reasonable inferences apparently drawn by both the hearing officer and Mr. Walk are that the beginning observation time was delivered by Deputy Birkenfeld to Deputy Eberle, and that Deputy Eberle received the observation data and recorded it in the BAC test record at Deputy Birkenfeld’s direction. Thus, communication of the observation times from Deputy Birken-feld to Deputy Eberle is supported by logical deductions from this record. Therefore, substantial evidence exists to support the hearing officer’s conclusions and the superior court’s decision to affirm.

In conclusion, RAP 12.1(a) normally precludes a reviewing court from deciding a case outside of the issues submitted and briefed by the parties. Even assuming the issue is properly before us, the record supports that communication of the relevant information did take place. Otherwise, I agree with the majority in its analysis interpreting WAC 448-13-040 to permit one officer to observe and communicate the relevant information to another officer who actually performs the BAC test and records the necessary information in the required form.

Accordingly, I concur in part and dissent in part. I would affirm.

Reconsideration denied June 16, 1999.