I N THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Petitioner ,

v. JENA DALE BROOKS, Respondent. ) ) ) ) ) ) ) ) ) No. 35002

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PUBLISHED OPINION

P ENNELL , J.

— Washington’s traffic code prohibits operating a vehicle on any part of a highway that does not meet the statutory definition of a roadway. Jena Brooks’s car was stopped for violating this provision after it crossed a neutral area separating a highway onramp from an adjacent lane of travel. Because the neutral area does not meet the definition of a roadway, the stop was permissible. The superior court’s ruling to the contrary is therefore reversed. 

### FILED FEBRUARY 1, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo s . 35002

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2 Figure 1 BACKGROUND While merging onto westbound U .S. Route 97 from U.S. Route 2 in Chelan County , Jena Brooks’s car crossed over a portion of the highway designated as a “neutral area.” A neutral

area is a paved triangular space separating an entrance or exit ramp from an adjacent lane of highway. T he neutral area between Route 97 and its merger with westbound Route 2 is marked on each side by thick white channelizing lines

. Figure 1 is a depiction of a neutral area similar to the one crossed by Ms. Brooks

. 1 A Washington State Patrol trooper observed
M s. Brooks ’s vehic ular activity and performed a traffic stop. Ms. Brooks was ultimately arrested for driving o n a suspended license and other misdemeanor offenses. During proceedings in district court, Ms. Brooks file d a motion to suppress , arguing her veh icle had been stopped without c ause. The motion was denied . Per tinent

1 F ED
. H IGHWAY A DMIN ., U.S. D EP ’ T OF T RANSP ., M ANUAL ON U NIFORM T RAFFIC C ONTROL D EVI CES FOR S TREETS AND H IGHWAYS fig.3B

- 9, at 360 ( 2009 ed., rev. May 2012).No s . 35002

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3 to this appeal, the district court ruled Ms. Brooks’s merger over the highway’s neutr al area constituted “driving with wheels off roadway,” in violation of RCW 46.61.670. 2
Ms. Brook s was subsequently convicted of several misdemeanor offenses after a jury trial. Ms. Brooks successfully appealed the suppression ruling to the superior court.
It found Washington’s definition of a roadway ambiguous in the context of a highway ’s neutral a rea. T he superior court then invoked the rule of lenity and determined Ms. Brooks should not have been stopped for driving with wheels off the roadway in violation of RCW 46.61.670

. The State sought discretionar y review from this court. Review was grante d on two specific issues: (1) whether the term ro adway is ambiguous in the current context , and (2) if the term is ambiguous , whether the rule of lenity is an available tool of statutory construction that might benefit a defendant such as Ms. Brooks

. ANALY SIS Discerning the meaning of the term “ roadway, ” as used in RCW 46.61.670 , is a

2 “ Driving with wheels off roadway. It shall be unlawful to operate or drive any vehicle or combination of vehicles over or along any pavement or gravel or crushed rock surface on a public highway with one wheel or all of the wheels off the roadway thereof, except as permitted by RCW 46.61.428 or for the purpose of stopping off such roadway, or having stopped thereat, for proceeding back onto the pavement, gravel or crushed rock surf ace thereof. ” RCW 46.61.670

.No s . 35002

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4 matter of statutory interpretation. As such, our review is de novo. Dep’t of Ecology v. Campbell & Gwinn, LLC , 146 Wn.2d 1, 9, 43 P.3d 4 (2002). We focus our statutory inte rpretation analysis on the language used by the legislature. In re Marriage of Schneider , 173 Wn.2d 353, 363, 268 P.3d 215 (2011). Resources such as dictionaries may be used to decipher a statute’s plain meaning. Cornu

- Labat v. Hosp. Dist. No. 2 , 177 Wn .2d 221, 231, 298 P.3d 741 (2013)

. However, we will not resort to aides of construction such as legislative history and (perhaps) the rule of lenity unless we first find the legislature’s language truly ambiguous. Timberline Air Serv. Inc. v. Bell Helico pter

Textron, Inc. , 125 Wn.2d 305, 312, 884 P.2d 920 (1994); State v. Conover , 183 Wn.2d 706, 712 , 355 P.3d 1093 (2015). Interpreting the term “roadway” begins with the relevant statutory text . Title 46 RC W defines “roadway” as “ that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder even though such sidewalk or shoulder is used by persons riding bicycles. ” RCW 46.04.500.
Th e statutory definition of a roadway involves a two

- part inquir y. First , we ask whether a given portion of highway meets the triggering definition of a roadway. In other words, is the area improved, designed, or ordinarily used for vehicular travel ? If not, the inquiry ends. The area is not a roadway. But if at l east one of the three triggering definitions appl ies , we go on to ask whether the area is excluded from the scope of aNo s . 35002

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5 roadway because the area constitutes a sidewalk or shoulder. If neither exclusion applies, then the area in question falls under the leg islature’s definition of a roadway

. Of the three triggering definitions, highway design is the least indicative of roadway status in the current context. A highway’s neutral area is not a vehicle lane. It is too short to facilitate mea ningful travel. A nd its triang ular shape cannot consistently accommodate the size of a vehicle. Rather than being designed for vehicular travel , it is apparent the neutral ar ea is designed as a buffer zone. It keeps vehicles separate so as to facilitate speed adj ustme nt and , in the context of a highway onramp, safe vehicle merging. National standards set by the Manual on Uniform Traffic Control Devices for Streets and Highways confirm our observations about the apparent design purpose of a highway’s neutral area. F ED
. H IGHWAY A DMIN ., U.S. D EP ’ T OF T RANSP ., M ANUAL ON U NIFORM T RAFFIC C ONTROL D EVICES FOR S TREETS AND H IGHWAYS (2009 ed.,

rev. May 2012) (MUTCD). 3 The MUTCD refers to the neutral area as an “island.” MUTCD, § 3I.02, at 430. As such, it is an area intended for vehicle “separation.”

3 The MUTCD is the national standard for traffic control signals on public highways and has been adopted by Washington’s secretary of transportation. RCW 47.36.020; WAC 468

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- 010. Therefore, it is an appropriate guide to in terpreting the meaning of traffic control devices, such as pavement markings, used on public highways within our state. The complete MUTCD is available online at https://mutcd.fhwa.dot.gov/pdfs/2009r1r2/mutcd2009r1r2edition.pdf.No s . 35002

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6 MUTCD, § 1A.13(03)(98), at 15. Although a neutral area may be designated either by

a wide or double solid white channelizing line (MUTCD, §§ 1A.13(03)(29), at 12, 1A.13(03)(124), at 17), the two options carry no substantive signifi cance. Like a double white line, a solid white line can serve as an indicator that crossing is prohibited. MUTCD, § 3A.06(01)(B) at 348. 4 The whole point of a neutral area is to exclude vehicles and promote orderly and efficient traffic flow. MUTCD, §§ 3B.05(06), at 370, 3I.02(02), at 430. Ms. Brooks claims the neutral area meets the first triggering roadway definition

— improvement for vehicular travel

— because the area is paved. We disagree. Although the neutral area is an improved piece of land , it i s not improved for purposes of vehicular travel . As noted, the purpose of the neutral area is to provide a safe space between vehicles. The MUTCD contemplates using a variety of improvements to alert drivers
to the presence of the neutral area. At the v ery least, the improvements must include pavement and solid white lines

. MUTCD, § § 1A.13(03)(29), at 12 , 1A.13(03)(124),
at 17

. But additional options may also be used , such as i nternal crosshatching, reflective

4 A solid white line indic ates crossing is discouraged, rather than prohibited, when used as a lane line marking. MUTCD , §§ 3B.04(20), at 362 , 3B.05, at 370. However, the lines demarking a neutral area are channel iz ing lines, not lane lines. MUTCD , § 1A.13(03)(124), at 17. Chan nel iz ing lines designate the presence of an island, not a lane of travel. MUTCD, § 1A.13(03)(29), at 12.No s . 35002

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7 marks, or rumble strips. MUTCD, § 3B.05( 10 ), at 37 1 , ch. 3I, at 430

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. These improvements do not exist for the purpose of facilitating travel. Quite the opposite. The purpose of a marked and improved neutral area is to make drivers aware of the buffer zone and keep vehicles o ut so traffic ca n merge or exit safely and efficiently. Pavement is not, in and of itself, a sufficient indicator that an area has been
im proved for vehicular travel

. In the context of highway construction, pavement can serve a variety of purposes. In addition to allow ing for heightened visibility of traffic control markings, pavement can help with drainage and structural integrity . While paving constitutes an improvement to the natural landscape, it is not necessarily an improvement for purposes of vehicular travel

. Because a highway’s paved neutral area does not amount to an improvement for purposes of vehicular travel , the mere existence of pavement does not qualify the area as a roadway. With respect to the third triggering definition of a roadway

— regular use

— ther e is

n o evidence vehicles regularly violate the intended purposes of neutral areas and use the space for vehicular travel

. U nlike a highway shoulder, which can provide a safe passage for small vehicles such as bicycles, the neutral area is not regularly a menable to safe vehicular travel

. See Clerk’s Papers at 59 (noting safety hazards of crossing the neutral area). Some neutral areas may be used for toll collection or pedestrian refuge. MUTCD, § 1A.13(03)(98), at 15. But we find no i ndication of any re gular, acceptable use ofNos. 35002-9-111; 35003-7-111 State v. Brooks

neutral areas by vehicles involved in travel.
Because the neutral area is neither designed, improved, nor regularly used for
vehicular travel, it does not meet any of the three triggering definitions of a roadway.
Our inquiry, therefore, ends here. We need not address whether the neutral area should
be excluded as a shoulder or whether the rule of lenity is applicable in the context of Washington's traffic code.
CONCLUSION
In crossing over the neutral area between Route 97 and Route 2, Ms. Brooks failed

to maintain her vehicle wheels on an area of the highway meeting the statutory definition
of a roadway. A vehicle stop was therefore permitted under Washington's wheels off roadway statute, RCW 46.61.670.
The superior court's order on appeal from the district court is reversed.

Pennell, J. 

# ·@

I CONCUR:

Siddoway, J.

8No

. 35002

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No. 35003

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L AWRENCE

- B ERREY , A

. C

. J

. (concurring)

— I agree with the majority that the trooper had reasonable suspicion to stop Ms. Brooks. But I disagree with the majority that driving in the middle of the roa dway amounts to “driving with wheels off roadway

. ” I therefore concur. A. O UR GRANT OF REVIEW I NCLUDES WHETHER CROS SING THE NEUTRAL AREA VIOLATES RCW 46.61.050 The majority asserts that we granted discretionary review of only two issues. I disagree. The Sta te sought discretionary review of five issue s . The first was, “Did the superior court err as a matter of law when it decided that crossing [the neutral area] does not violate RCW 46.61.050 (failure to obey traffic control device)?” Mot

. for Discr

. Review at 1. Our commissioner issued a written ruling. The ruling notes that the superior co urt determined that Ms. Brooks did not violate either RCW 46.61.050 (failure to obey traffic control devices) or RCW 46.61.670 (driving with wheels off roadway). The ruling then discusses the ambiguity of whether the neutral area is a shoulder and , therefore , exc luded from the definition of “ roadway, ” and whether the rule of lenity applie s to resolve th is ambiguity in favor of Ms. Brooks. After concluding that the amb iguity and theNo. 35 002

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2 application of the rule of lenity are issues of public importance, the ruling states:

“ Accordingly, IT IS ORDERED . . . the State’s motion for discretionary review is granted.” Commissioner’s Ruling , State v. Brooks , No. 35002

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- III , at 4 ( Wash. Ct. App. Mar. 7, 2017) . There is no language within the order th at limits the scope of review to only two issues.
T he State briefed all five issues contained within its motion for discretionary review. Ms. Brooks took the position in her responsi ve brief that discretionary review was limited to two issues. Nevertheless, she responded to each of the five issues. During oral argument, this panel asked questions concerning RCW 46.61.050, and both parties answered our questions. There is no reason to limit our review to only two issues when

our c ommissioner’s order did not. It is therefore appropriate to review whether crossing the neutral area violates RCW 46.61.050.
B. C ROSSING THE WIDE SOLID LINES THAT BORDER THE NEUTRAL AREA VIOLATES RCW 46.61.0 50 The superior court analyzed the 2009 Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) and concluded that crossing the wide solid lines was discouraged rather than prohibited. I disagree. RCW 46.61.050 (1) requires drivers, bic yclists, and pedestrians to obey traffic control devices. RCW 4 6.04.611 defines “traffic

- control devices ” as “all signs, signals, markings and devices . . . place d or erected . . . for the purpose of regulating, warning orNo. 35 002

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3 guiding traffic.” Here, the w hi te channelizing lines crossed by Ms. Brooks were wide solid lines. Such markings constitute traffic control devices

. The MUTCD sets forth the functions of longitudinal markings. F ED
. H IGHWAY A DMIN ., U.S. D EP ’ T OF T RANSP ., M ANUAL ON U NIFORM T RAFFIC C ONTRO L D EVICES FOR S TREETS AND H IGHWAYS (2009 ed. , rev. May 2012)

. According to section 3A.06.01(B) of the MUTCD , “A solid line discourages or prohibits crossing (depending on the specific application ) .” Just below that section, s ection 3A.06.03 clarifies , “T he width of the line indicates the degree of emphasis.” For this reason, crossing a wide solid line is prohibited. C. D RIV ING THROUGH THE NEUTRAL AREA IS NOT DRIVING WITH WHEELS OFF ROADWAY RCW 46.04.500 defines “roadway” as “that portion of a highway impro ved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder

eve n though such sidewalk or shoulder is used by persons riding bicycles.” The majority acknowledges that the paved neutral area is an improved area of the highw ay, but concludes that the area is not improved for vehicular travel. The majority concludes that the neutral area is not improved for vehicular travel because the purpose of the neutral area “is to make drivers aware of the buffer zone and keep vehicles out . . . .” Majority at
7

. Drivers are made aware of the buffer zone and to keep vehicles out because the buffer zone is bounded by wide solid lines instead of, for instance, narrow broken lines.No. 35002-9-III; No. 35003-7-III State v. Brooks

- concurring

Narrow broken lines would permit vehicles to cross through the neutral area. Because it is the longitudinal markings that tell drivers to keep out of the buffer zone, the statute that controls our analysis is RCW 46.61.050(1) (failure to obey traffic control devices) , not RCW 46.61.670 (driving with wheels off roadway).
But because the majority reaches the correct result , I concur.

Lawrence-Berre y, A.C.J.

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