Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^** 

Kathryn M. Henson appeals her conviction following a conditional guilty plea to driving while intoxicated (DWI), in violation of 18 U.S.C. §§ 7 and 13, through the application of the Revised Code of Washington (RCW) 46.61.502 and 46.61.515. Henson contends that the district court erred when it affirmed the federal magistrate's order denying a motion to suppress breathalyzer test results. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review de novo the denial of a motion to suppress. United States v. Thomas, 844 F.2d 678, 680 (9th Cir. 1988).

"The Assimilative Crimes Act, 18 U.S.C. §§ 7 and 13, ("ACA") subjects persons to federal prosecution in federal court for violations of criminal statutes of the state in which the federal lands are located. The ACA transforms a crime against the state into a crime against the federal government." United States v. Kiliz, 694 F.2d 628, 629 (9th Cir. 1982) (citation and footnote omitted). Federal, not state, procedural rules apply to prosecutions under the ACA. United States v. Roberts, 845 F.2d 226, 228 (9th Cir.), cert. denied, 488 U.S. 845 (1988). Thus, " 'only those ... statutes making drunk driving a criminal offense and authorizing punishment therefor are assimilated into federal law under the [ACA].' " Id. (quoting United States v. Best, 573 F.2d 1095, 1098 (9th Cir. 1978)). Regulatory provisions of state law are not assimilated into federal law under the ACA. See United States v. Snyder, 852 F.2d 471, 474 (9th Cir. 1988) (California punishment requiring license suspension for DWI is regulatory, not punitive, and therefore not assimilated under the ACA); United States v. Dewater, 846 F.2d 528, 530 (9th Cir. 1988) (Hawaii Health Department rules "dealing with calibration, supervision, operation and reliability of the intoxilizer procedures" are procedural, not evidentiary, and thus not assimilated under the ACA); Roberts, 845 F.2d at 228-29 (California implied consent law provisions not assimilated because they neither make drunk driving criminal nor authorize punishment).

Henson contends that RCW 46.61.502 incorporates the provisions of RCW 46.61.506 as an element of driving while intoxicated. Henson moved to suppress the breathalyzer results on the ground that the test administered to her did not properly comply with the requirements of RCW 46.61.506. RCW 46.61.502 provides in relevant part:

A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state while:

(1) The person has 0.10 percent or more of alcohol per two hundred ten liters of breath, as shown by analysis of the person's breath made under RCW 46.61.506.

(West 1991). RCW 46.61.506 provides in relevant part:

(3) Analysis of the person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 ... shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods, to supervise the examination of individuals to ascertain their qualifications and competence to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state toxicologist.

(West 1991). Henson argues that the district court erred by affirming the magistrate's determination that the provisions of RCW 46.61.506 were procedural and therefore not assimilated under the ACA.

The relevant provision of RCW 46.61.506 directs the state toxicologist to develop methods for certifying individuals to administer breathalyzer exams and for ensuring that breathalyzer exams are administered properly and reliably. This provision of the drunk driving law is regulatory in nature. See Snyder, 852 F.2d at 474; Dewater, 846 F.2d at 530; Roberts, 845 F.2d at 228-29. The courts of the State of Washington are in agreement that RCW 46.61.506 is a procedural, not criminal, statute. See, e.g., State of Washington v. Peterson, 674 P.2d 1251, 1253-54 (1984) (despite redefinition of the DWI law in 1979 in terms of a 0.10 Breathalyzer reading, " [t]he authority given to the State toxicologist to prescribe procedures for maintaining and administering the tests remains the same;" and " [a]ny challenge to the reliability of the Breathalyzer reading goes to its weight rather than to its admissibility"); State of Washington v. Melcher, 655 P.2d 1169, 1171 (1982) (" [b]y defining the crime (legislation) and delegating to the state toxicologist the duty of establishing measurement procedures (administration), [RCW 46.61.506] is not open to attack for unconstitutional delegation of legislative power"). Thus, the presumption of guilt under RCW 46.61.502 arises out of the presence of 0.10 percent of alcohol per two hundred and ten liters of breath in a defendant's body, not out of the specific manner in which the breathalyzer exam is administered. See Dewater, 846 F.2d at 530.

RCW 46.61.506 goes beyond establishing the elements of the offense of driving while intoxicated and is not assimilated into federal law under the ACA. See Roberts, 845 F.2d at 228; see also Dewater, 846 F.2d at 530. Therefore, Henson could not invoke RCW 46.61.506 as a basis for suppressing the results of her breathalyzer exam, and the district court did not err by affirming the magistrate's denial of Henson's motion to suppress. See Dewater, 846 F.2d at 530.

AFFIRMED.