IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Appellant,

v. THOMAS LEE OLSON, Respondent. No. 72965-9-1 « cV;_ en s:^" 

## DIVISIONONE ^ g|[ UNPUBLISHED OPINION cf<" °1 o—' FILED: August 15, 2016 Appelwick, J. — Olson appeals his conviction and sentence for felony 

### driving under the influence, driving while license suspended/revoked, and possession ofa controlled substance. Heasserts that his due process rights were violated when the State failed to prevent 911 call recordings from being 

### automatically destroyed after herequested that they bepreserved. He maintains that this behavior constituted governmental misconductwarranting reversal under 

### CrR 8.3(b). Forthefirsttime onappeal, he contendsthat as appliedto anindigent defendant, the statutes that require imposition of a mandatory deoxyribonucleic 

### acid (DNA) fee and a victim penalty assessment (VPA) fee at sentencing violate substantive due process. We affirm. FACTS 

### On January 22, 2014, Officer Daniel Finan and Lieutenant Daniel Young 

### responded to a report of a single vehicle traffic accident near the intersection of Lakemont Boulevard Southeast and NewportWay Southeast in Bellevue. 

### A witness, Marianne Jones, was at the scene. Jones had been driving northbound on Lakemont Boulevard behind the truck. Jones noticed the truck 

### swerve into the opposite lane oftraffic, and she called 911. Jones continuedNo. 72965-9-1/2 

### following the truck. She could see that there was one person in the truck—the driver. She observed the truck swerve into a concrete barrier over a grass 

### embankment, swerve again across oncoming traffic, drive up onto a sidewalk, and 

### knock down a lamp post. She noticed that parts of the truck were falling off onto the road. She saw the truck stop before itreached the intersection. Jones saw 

### the driver get out of the truck and beginpicking up pieces of the truck that had fallen onto the road. 

### JoelLessing alsocalled 911 that day afterwitnessing theaccident. Lessing was parked near the intersection when he saw a bluetruck drive across all lanes oftraffic, strike a guardrail, and grind to a halt before reaching the intersection. After the truck stopped, Lessing proceeded through the intersection toward the truck, rolled down hiswindow, and asked the driverifhe was okay. 

### WhenLieutenantYoung arrived, he saw someone sitting inthedriver's seat 

### of a heavily damaged pickup truck. When Officer Finan arrived on the scene, he observed a damaged blue pickup truck with its driver's sideairbag deployed. A male individual was standing outside the driver's side door of the truck. Jones 

### pointed toward theindividual and told Officer Finan that hehad been driving the truck. Officer Finan and Lieutenant Young approached the vehicle. The male individual identified himself as Thomas Olson. During the course of their contact 

### with Olson,OfficerFinan and LieutenantYoung saw drug paraphernaliain Olson'sNo. 72965-9-1/3
sweatshirt. Olson admitted to smoking heroin about an hour earlier. Olson was arrested and read his Miranda1 rights. Olson told Officer Finan that a friend of his had been driving the truck and that Olson had been riding inthe passengerseat. He said they had been following 

### behind a friend driving another vehicle. Olson said the other car was driving 

### erratically and causedthe truck to crash. Olsonstatedthat once the truckcrashed, he and the driver of the truck got out, the driver got into the other friend's car, and thosetwo drove away to get a tow truck for thetruck. Olson told Lieutenant Young 

### that he was waiting for the otherdriverto come back. LieutenantYoung remained
on the scene for an hour and a half, and no one ever returned with a tow truck. 

### On January 29, 2014, the State charged Olson with felony driving while under the influence of or affected by intoxicating liquor or any drug (DUI) and 

### driving while license suspended/revoked inthefirst degree. OnJanuary 30, 2014, an attorney appeared on behalf ofOlson and entered a requestfor discovery. 

### Among otherthings, Olson's attorneyrequestedthatthe Statepreserveallphysical evidencerelatingtothealleged offense, including, butnotlimitedto911 recordings until final disposition of the case or until further orderof the court. 

### The Bellevue Police Department contracts with the North East King County 

### Regional Public Safety Communication Agency (NORCOM), a company that handles dispatch and 911 calls. 911 Norcom, http://www.norcom.org (lastvisited 

### July 28, 2016). PursuanttoNORCOM's policy, thecalls are retained for 90 days
1 Miranda v. Arizona. 384 U.S. 436, 467-68, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).No. 72965-9-1/4
unless a preservation request is made. The State never provided the recordings to Olson, and the recordings were destroyed. On September 19, 2014, the State amended the charges to include violation of the Uniformed Controlled Substances Act.2 A jury found Olson guilty as 

### charged. Atsentencing, the court imposed $600 inLFOs—a$100 DNAfee and a $500 VPA fee. Olson appeals. DISCUSSION 

### Olsonargues that this court should reverse, because his due process rights were violated when the 911 recordings were destroyed. Heasserts that the State's 

### failure to preserve the 911 recordings constituted "government mismanagement" of the case warranting reversal underCrR 8.3(b). For thefirst time on appeal, he claims that RCW 43.43.7541 and RCW 7.68.035—the statutes mandating the 

### imposition ofthe$600 in LFOs—areunconstitutional as appliedtodefendantswho do not have the ability orlikely future ability to payLFOs. And, he maintains that the LFOordershould be stricken, becausethe trial court failed to comply with RCW 

### 10.01.160(3) by notmaking an individualized inquiry into hisability to pay. I. Due Process Violation 

### Olson argues thathis rightto due process wasviolated, because the State failed to preserve the911 recording evidence afterdefense counsel made a proper discovery request.

2 RCW 69.50.4013.No. 72965-9-1/5


### The government's failure to preserve evidence significant to the defense 

### mayviolate a defendant's due process rights. State v. Wittenbarqer, 124Wn.2d 467,475, 880 P.2d 517 (1994). Whetherdestruction ofevidence constitutes a due 

### processviolation depends on the nature ofthe evidence and themotivation oflaw enforcement. State v. Groth, 163 Wn. App. 548, 557, 261 P.3d 183 (2011). Ifthe 

### State has failed topreserve "materialexculpatory evidence," criminal charges must be dismissed. Wittenbarqer, 124Wn.2d at475. Inorderto be considered "material 

### exculpatory evidence," theevidence mustboth possess anexculpatoryvalue that was apparentbefore itwas destroyed and be of such a nature that thedefendant would be unable to obtain comparable evidence by other reasonably available

means. Id. at 475. 

### By contrast, the State's failure to preserve evidence that is merely "potentially useful" does not violate due process unless the defendant can show badfaith onthepartoftheState. Statev. Burden, 104Wn. App. 507, 512,17P.3d 

### 1211 (2001). "Potentially useful" evidence is " 'evidentiary material ofwhich no more can be said than that it could have been subjected to tests, the results of 

### which might have exonerated the defendant.' " Groth, 163 Wn. App. at 557 

### (quoting Arizona v. Younqblood, 488 U.S. 51, 57, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)). The presence orabsence ofbad faith must necessarily turn on the State'sknowledge oftheexculpatory value oftheevidence at thetime itwas lost or destroyed. \± at 558. Thus, a defendant must show the destruction was improperly motivated. ]d. at 559.No. 72965-9-1/6
Here, neither the State nor the defense heard the tapes and neither knew of any exculpatory value. Olson concedes that the 911 recordings were only potentially useful to the defense. The disagreement between the parties stems from what constitutes a sufficient showing of bad faith and whether Olson has satisfied his burden. Specifically, the State claims that Olson has no evidence of 

### improper motivation and thatwithoutthatevidence, he cannot prove bad faith. By contrast, Olson asserts that he need not show impropermotivation inorderto show bad faith and that the State's reliance on Wittenbarqer and Groth to support this proposition is misplaced. In Wittenbarqer, defendants moved to suppress evidence of a chemical 

### breath analysis testbased on the fact that the Statefailed topreserve maintenance 

### and repair records for the breath test machines. 124 Wn.2d at 472. By not 

### preserving the evidence, the State was adhering to new procedures and record keeping policies,3 which did notrequirethepreservation oftherecords, jd. at 477- 78. Defendants argued that unlike a typical preservation of evidence case, the 

### procedures themselves constituted a pattern of badfaith designed bythe State to 

### systematically deny defendants access to useful evidence. ]d at477, 472. The defendants alleged that the State opted to no longer keep the records, because 3By statute, the State Toxicologist has the delegated authority to approve 

### breath testing procedures and protocols. Wittenbarqer, 124 Wn.2d at 472. The 

### toxicologistdraftedrevised protocols and proceduresfor breath testing toreflect a switch to updated breath-testing technology. \_± Under the newquality assurance 

### protocol, the State's record keeping policies changed. Id at 473. Specifically, data from the inspections was no longer recorded and instead of recording information such as initial voltage values, adjusted voltage values, and calibration 

### factors, the technicians merely indicated that the required tests were performed with satisfactory results by checking a box on the inspectionforms, id.No. 72965-9-1/7


### defense attorneys had used them successfully to challenge prosecutions in the past. ]d at 477. The Wittenbarqer court noted that the fact that the State was aware that defense counsel had found the old records useful did not lead it to conclude that the State acted in bad faith when it made the policy changes regarding record 

### retention, id And, the court noted that the new procedures represented a good faith effort on the part of the State to verify that the machines were working and 

### accurate, id at 478. Itultimatelyconcluded that the defendants failed toconvince itthat the State's reduction in the amount ofdata retained from the results ofthe 

### tests performed on themachine was improperly motivated, id Consequently, it declined to make a finding ofbad faith, id 

### In Groth, Groth was convicted in 2009 for a murder that occurred in 1975. 

### 163Wn. App. at551. In 1987, whiletheinvestigationwasstill pending, a sergeant ordered destruction ofall of the physical evidence4 from the crime scene except 

### the murderweapon andcrime scene photographs, id at554. Groth argued that the destruction of the evidence constituted a violation of his due process rights, id at 556-57. The Groth court noted that it was unclear why the evidence was 

### destroyed, id at559. Itultimately concludedthattherewasno indicationthatthe sheriff's office knew of any exculpatory aspect of the evidence or that the 4Asubstantial amount ofphysical evidence was destroyed: plastercasts of 

### footwear impressions, blood samplesfound at the crime scene, samples ofthe victim's clothing, blood, hair and fingernail scrapings from the autopsy, another 

### suspect'sboots andclothingfrom thenightofthemurder, anylaboratoryanalyses, and the crime laboratory analyst's notes, reports, andconclusions concerning the forensic testing. Groth, 163 Wn. App. at 557-58, 553.No. 72965-9-1/8
evidence's destruction in 1987 was improperly motivated, id It stated that to the 

### extent any conclusions could be drawn from the record, it appeared that the sheriff's office negligently destroyed evidence of which any exculpatory value was 

### notapparent, id Itnoted that the standard of badfaith required underYounqblood and Wittenbarqer was, consequently, not met. Jd Olson asserts that here, unlike in Wittenbarqer, there is no allegation of 

### systemicbias oranimproperlymotivated policy.5 And, Olson argues thatunlike in Groth, the government here had notice at the time the evidence was destroyed that the evidence was useful to the defense. Olson is correct. Neither case is 

### dispositive in determining whether, factually, Olson has adequately shown bad
faith exists here. 

### However, Wittenbarqer stands for the proposition that a defendant must show that the destruction of the evidence was improperly motivated. See Wittenbarqer, 124 Wn.2d at 478. And, the Groth court clearly announced that a 

### showing ofimproper motivation isrequired. 163 Wn. App. at559. Olson fails to 

### support his argument that—although these cases arefactually distinguishable— thegeneral rule announced inthese cases is inapplicable here. Thus, Olson must show that the destruction of the 911 recordings was improperly motivatedin order to supportthe presence of bad faith, id



### 5 We note that Olson is not alleging that the State has a policy of not 

### responding to discovery requests, resulting in the automatic destruction of evidence.

8No. 72965-9-1/9
We impute NORCOM's destruction ofthe 911 recordings to the State. The destruction ofevidence here is serious given the State's obligation under CrR 4.7. We are troubled by the State's failure to comply with Olson's discovery request. The State should have complied with the discovery request, and it provides no meaningful explanation for its failure to do so. But, the question before us is whether the automatic destruction of potentially useful evidence, after a request for preservation, rises to the level of bad faith. While the facts may invite an inference of bad faith, they do not constitute affirmative evidence of improper motivation required by our case law. Moreover, on these facts, any error in allowing the destruction of the evidence is harmless. See State v. Gulov. 104 Wn.2d 412, 425, 705 P.2d 1182 (1985) (stating that it is well established that a constitutional error may be so 

### insignificant as to be harmless); Younqblood, 488 U.S. at 59 (Stevens, J., concurring) (considering whetherthe defendant was prejudiced by lost evidence). An error of constitutional magnitude is harmless when the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. Gulov, 104 Wn.2d at 425. Constitutional errors are presumed to be prejudicial and the State bears the burden of proving that the error was harmless, jd Olson's theory of the case at trial was that he was not the individual who
was actually driving the truck, that someone else had driven the truck, and thatthe other person leftthe scene in another car. Olson asserts that any error here wasNo. 72965-9-1/10

not harmless, because having access to the 911 recordings would have bolstered the defense's theory so as to establish reasonable doubt. It is unclear from the computer-aided dispatch (CAD) log how many witnesses actually called 911 on the day ofthe incident. Below, Olson argued that
as many as seven people called 911 to report the incident. The CAD log includes a list of seven "call persons." The list includes Jones, Cecily Novak, and five calls identified by telephone service providers that are not identified by number or
name—one from Verizon, two from AT&T, and two from T-Mobile. Inotherplaces, the CAD lists incoming phone calls from callers by name, some by partial name, 

### and some by telephone service provider. By name, it lists receiving calls from Clarissa Schaaf and Jones. It also identifies a call from "Joel"6 and it lists an 

### accompanying phone number. It is unclear from the CAD whether the "call 

### persons" identified only by service providers were allseparate callers. Either way, at least four separate callers were identified from the CAD log—Schaaf, Jones, Novak, and Lessing. At least three of the witnesses who called 911 testified at trial: Jones, Lessing, and Schaaf. The State did not list Novak as a witness. 

### Lessing spoke with the driver of the truck on the day of the incident, and he identified Olson as the driver at trial. Lessing testified that he saw no one else in the car and did not see anyone else at the scene. Jones also identified Olson. She testified that she could see there was only one person inthe truckwhile itwas 

### moving and that she saw onlyone person get out of the truck. Schaaftestified that

6Joel's last name is Lessing.

10No. 72965-9-1/11
she saw a light pole fall and saw a truck backing away from it. She testified that she saw the truck continue moving down the hill toward her. But, she testified that she was unable to see who was driving the vehicle orwhetherthere were multiple people in the vehicle. Still, Olson argues that the 911 calls had the potential of revealing that the eyewitness drivers were distracted. He asserts the recordings would have allowed him to impeach the eyewitnesses. This is purely speculative. He claims that if either of the witnesses was distracted for even 30 seconds, it would have supported his theory ofthe case that in the chaos, the actual driver left. But, the unavailability of the 911 recordings did not preclude Olson from presenting his 

### theory of the case. He cross-examined the witnesses about their potential distractions. Olson's attorney highlighted that Jones was traveling with her children and was worried abouttheir safety and the safetyof a pedestrian. Olson's 

### attorney highlighted that Lessing was on the phone with 911 while driving and that he never actually identified Olsonfrom a lineup, and that he was not concentrating
on what the driver looked like the day of the incident. On direct examination, Schaaftestified that itallhappened veryfast and thatshewas not paying attention. 

### And, she stated thather young daughterwas in the carat the time. Olson declined to cross-examine Schaaf. The jury had the opportunity to observe the witnesses' demeanor, weigh their answers, andjudge their credibility. And, during closing argument Olson's counsel reiterated that Jones was 

### distracted. Counsel also argued that the State's eyewitnesses were generally

11No. 72965-9-1/12
concerned with the safety oftheir passengers, other people on the scene, and that they had to navigate the intersection and pay attention during the critical moments. Counsel noted that the distractions meant that the witnesses did not have the ability to observe everything that occurred that day. We conclude that any reasonablejury would have reached the same result
even with the 911 recordings available. Therefore, we reject Olson's claim thatthe due process violation entitles him to reversal.

II. CrR 8.3(b) Also related to the State's failure to preserve the 911 recording evidence, Olson argues that the trial court erred when it did not dismiss the case due to 

### "government mismanagement" of the case under CrR 8.3(b). CrR 8.3(b) states that the court may dismiss any criminal prosecution due to arbitrary action or 

### governmental misconduct where there has been prejudice to the rights of the accused which materially affects the accused's right to a fair trial. This court reviews a trial court's denial of dismissal under CrR 8.3(b) for abuse ofdiscretion. State v. Qppelt. 172 Wn.2d 285, 297, 257 P.3d 653 (2011). 

### Two things must be shown before a court can require dismissal ofcharges under CrR 8.3(b). State v. Michielli. 132 Wn.2d 229, 239, 937 P.2d 587 (1997). First, a defendant must show arbitrary action or governmental misconduct, id. Governmental misconduct need not be of an evil or dishonest nature; simple 

### mismanagement is sufficient, id at 239-40. Yet, Washington courts have clearly maintained that dismissal is an extraordinary remedy to which the court should

12No. 72965-9-1/13

resort in only truly egregious cases of mismanagement or misconduct. State v. Wilson, 149 Wn.2d 1, 9, 65 P.3d 657 (2003). The second necessary element a defendant must show is prejudice affecting the defendant's right to a fair trial. Id. An analysis under CrR 8.3(b) may well support a conclusion of governmental misconduct. But, because the same governmental conduct as viewed above through the lens of a constitutional violation is harmless, we conclude that Olson cannot establish prejudice sufficient to justify dismissal under this rule. Wilson, 149 Wn.2d at 9. Consequently, we hold that the trial court did not abuse its discretion when itdenied Olson's CrR 8.3(b) motion to dismiss.

III. LFOs 

### At sentencing, the trial court imposed $600 in mandatory LFOs—a $500 VPA fee and a $100 DNA fee. RCW 43.43.7541 and RCW 7.68.0357 establish 

### that the court's imposition of the DNA and VPAfees are mandatory. Specifically, RCW 7.68.035(1 )(a) states that when a person is found guilty of having committed a crime, there "shall be imposed bythe court upon such convicted person a penalty assessment." And, RCW 43.43.7541 states that "every sentence imposed
. . . must include a fee of one hundred dollars." For the first time on appeal, Olson argues that as applied to an indigent 

### defendant, imposition of the mandatory VPA fee under RCW 7.68.035 and the mandatory DNA fee under RCW 43.43.7541 violates substantive due process. 

### 7The legislature amended both ofthese statutes in 2015. See Laws of 2015, ch. 265 § 31; Laws of 2015, ch. 265 § 8. Because the salient portion of these statutes did not change and because the amendments do not affect this 

### court's analysis, we refer to the currentversion ofthese statutes in this opinion.

13No. 72965-9-1/14
The Washington Supreme Court considered and rejected a constitutional challenge to the imposition ofthe mandatory VPA fee under RCW 7.68.035(1) in State v. Curry. 118Wn.2d 911, 917, 829 P.2d 166(1992). The Curry court held that, generally, constitutional principles are implicated only when the State seeks to enforce collection of the mandatory assessment. Id The court noted that 

### imposition of the penalty assessment, standing alone, is not enough to raise constitutional concerns, id at 917 n.3. 

### And, we recently considered the ripeness of a defendant's as-applied substantive due process challenge to the imposition of the mandatory DNA fee in State v. Shelton, No. 72848-2-I, 2016WL 3461164, at *1 (Wash. Ct. App. June 20, 

### 2016). The Shelton court considered the same as-applied substantive due process challenge to the mandatory DNAfee statute. Id at *2. Weheld thatuntil the State attempts to enforce collection of the DNA fee or impose sanctions for failure to pay, the claim is not ripe forjudicial review and is not an error of 

### constitutional magnitude subject to review under RAP 2.5(a)(3).8 Shelton, 2016 WL 3461164, at *6. 

### 8Olson argues that the Washington Supreme Court already rejected the 

### proposition that a challenge to the imposition ofthe DNA andVPAfees is notripe until the State attempts to collectin State v. Blazina, 182Wn.2d 827, 832, n.1, 344 

### P.3d 680 (2015). In Blazina. the courtconcluded that the defendant's challenge to the trial court's entry of an LFO order under RCW 10.01.160(3) was ripe for review at the time the orderwas imposed. 182Wn.2d at 832 n.1. But, as recently 

### noted bythis courtin Shelton. Blazina isdistinguishable. 2016WL 3461164, at*6. The Blazina court did not address the imposition ofmandatoryfees. Rather, it held 

### only that RCW 10.01.160(3) requires the sentencing court to make an individualized inquiry into the defendant's ability to pay discretionary LFOs. 182 Wn.2d at 830. And, unlike discretionary LFOs, the legislature unequivocally 

### requires—notwithstanding RCW 10.01.160(3)—imposition ofthe mandatory DNA

14No. 72965-9-1/15
Olson argues that Curry is distinguishable. He argues that, unlike in Curry, rather than challenging the constitutionality of the LFO statutes based on the fundamental unfairness of their ultimate enforcement potential (incarceration), he is challenging the, "unconstitutional exercise ofthe State's regulatory powerthat is irrational when applied to defendants who have not been shown to have the ability to pay." But, even if Curry is distinguishable in this regard, this court's recent pronouncement in Shelton is clear: an as-applied substantive due process challenge to the DNAfee statute is not ripe for review until the State attempts to enforce collection of the fee. Shelton. 2016 WL 3461164, at *6. And, there is nothing inShelton's reasoning that limits itsapplication to onlythe mandatory DNA fee statute as opposed to also the mandatory VPA fee statute. 

### Still, Olson argues that his claim is ripe for review, because Washington's LFO scheme provides for immediate enforced collectionprocesses, penalties, and sanctions through wage garnishment, payrolldeduction, and the accrual ofinterest at the time ofthe entry ofjudgment. In other words, he implies that his claim is 

### ripe,becausethe State may begin enforcing collection rightaway. But, Olsondoes not identify any evidence in his case indicatingthatthe State has employed these or any enforcementmechanisms to collectthe mandatory LFOs. In fact, the record shows that the trial court waived interest as to the $600 of LFOs in Olson's case. 

### fee and the mandatory VPA at sentencing without regard to the ability to pay. See RCW 43.43.7541; RCW 7.68.035; Shelton, 2016 WL 3461164, at *6.

15No. 72965-9-1/16

We adhere to the decisions in Curry and Shelton and hold that Olson's asapplied substantive due process challenges to the mandatory DNA fee and VPA fee are not ripe for review and that they do not constitute manifest constitutional
error warranting review for the first time on appeal.
We affirm.

WE CONCUR: 

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