State v. Kocher

199 Wash.App. 336

400 P.3d 328

STATE of Washington, Respondent,

v.Christi L. KOCHER, Appellant.

No. 74775-4-I

Court of Appeals of Washington, Division 1.

FILED: June 26, 2017

Robert Soren Green, Green Law Group PS, 9757 N.E. Juanita Dr., Ste. 109, Kirkland, WA, 98034-8966, Diana Lundin, Lundin Law PLLC, 13300 Bothell Everett Hwy., Ste. 303, # 655, Mill Creek, WA, 98012-5312, for Appellant.

Christopher Andrew Fyall, Attorney at Law, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Respondent.

Cox, J.¶1 At issue is whether a state patrol trooper had reasonable suspicion of a traffic infraction by Christi Kocher to make a warrantless traffic stop. Because RCW 46.61.670 provided authority for the stop under the circumstances of this case, we affirm the decision of the superior court on RALJ review.

¶2 A state patrol trooper drove behind Kocher as she drove in the far right lane southbound on Interstate 5 during the late evening. As traffic to Kocher's front and left came to a stop, Kocher drove two wheels of her vehicle over the fog line for approximately 200 feet. Based on these observations, the trooper stopped Kocher's vehicle.

¶3 Kocher submitted to sobriety tests during the stop. The trooper observed clues of intoxication and arrested her for driving under the influence, a traffic infraction under RCW 46.61.502.

¶4 The State charged Kocher with driving under the influence, contrary to RCW 46.61.502 and RCW 46.61.506. She moved to suppress all evidence from the stop and for dismissal. She argued that the trooper had no reasonable suspicion to justify the stop. The State disagreed. It argued that Kocher committed a traffic infraction by driving on the shoulder of the road for approximately 200 feet, in violation of RCW 46.61.670.

¶5 Based on the trooper's testimony and the dash camera footage from his vehicle, the district court found that the State "only established a 200 foot incursion over the fog line that occurred only when traffic in front and next to the defendant came to a stop on Interstate 5."¹ The court concluded that this was insufficient to establish reasonable suspicion under RCW 46.61.140 and the cases cited in its written decision. It granted Kocher's motion to suppress all evidence and dismissed the case.

¶6 The State appealed to the superior court, arguing there was reasonable suspicion under RCW 46.61.670, an argument the district court rejected. The RALJ court agreed with the State, reversing the district court's decision and remanding for further proceedings. The RALJ court concluded that RCW 46.61.670, not RCW 46.61.140, controlled under the circumstances of this case.

¶7 We granted Kocher's request for discretionary review.

REASONABLE SUSPICION

¶8 Kocher argues that the RALJ court applied the wrong statute to determine whether the trooper had reasonable suspicion of a traffic infraction to stop her. Specifically, she contends that RCW 46.61.140, "Driving on roadways laned for traffic," not RCW 46.61.670, "Driving with wheels off roadway," applies. We hold that RCW 46.61.670 controls where it is undisputed that Kocher operated the wheels of her vehicle over the fog line, off of the roadway.

¶9 Both the Fourth Amendment to the United States Constitution and article I, section 7 of Washington's Constitution prohibit unreasonable seizures.² A traffic stop constitutes a seizure.³ Warrantless seizures are per se unreasonable, unless an exception to the warrant requirement applies.⁴ The State bears the burden of establishing an exception.⁵

¶10 "Warrantless traffic stops are constitutional ... as investigative stops but only if based upon at least a reasonable articulable suspicion of either criminal activity or a traffic infraction, and only if reasonably limited in scope."⁶ "The narrow exception to the warrant requirement for investigative stops has been extended beyond criminal activity to the investigation of traffic infractions."⁷ This is due to " ‘the law enforcement exigency created by the ready mobility of vehicles and governmental interests in ensuring safe travel, as evidenced in the broad regulation of most forms of transportation.’ "⁸

¶11 When reviewing whether an investigative stop was lawful, we evaluate the totality of the circumstances presented to the officer, including the officer's training and experience.⁹

¶12 We also interpret statutes to determine and apply the legislature's intent.¹⁰ That intent is solely derived "from the statute's plain language...."¹¹ We must read the enactment as a whole and harmonize the provisions "by reading them in context with related provisions."¹²

¶13 " ‘[W]here the Legislature uses certain statutory language in one instance, and different language in another, there is a difference in legislative intent.’ "¹³ Courts may not add words where the legislature has chosen to exclude them.¹⁴ When the plain language of a statute is unambiguous, courts will not construe the statute otherwise.¹⁵

¶14 We review de novo questions of statutory interpretation.¹⁶ Here, Kocher does not challenge the district court's factual determinations. So they are verities on appeal.¹⁷

¶15 Notably, the district court found that "the State only established a 200 foot incursion over the fog line that occurred only when traffic in front and next to the defendant came to a stop on Interstate 5."¹⁸ Thus, there is no dispute that Kocher operated her vehicle partially over the fog line, which is off the roadway, for a distance of 200 feet.¹⁹

¶16 The dispute between the parties centers on which of two statutes controls the determination whether reasonable suspicion to initiate a traffic stop exists under these undisputed facts. Kocher argues that RCW 46.61.140 controls. The State maintains that RCW 46.61.670 controls. We agree with the State.

¶17 In relevant part, RCW 41.61.670 provides:

It shall be unlawful to operate or drive any vehicle ... over or along any pavement ... on a public highway with one wheel or all of the wheels off the roadway thereof, except ... for the purpose of stopping off such roadway, or having stopped thereat, for proceeding back onto the pavement....^{[20 ]}

¶18 Under the plain language of this statute, it is a traffic infraction, except in certain situations not relevant here, to drive a vehicle "on a public highway with one wheel or all of the wheels off the roadway."²¹ A "roadway" is the "portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk or shoulder...."²²

¶19 Based on the straightforward application of this statute to the undisputed facts of this case, the state trooper had reasonable suspicion to believe that Kocher committed a traffic infraction. The warrantless traffic stop was lawful.

¶20 State v. Huffman ²³ is consistent with this result. There, a trooper stopped Sarah Huffman for weaving while driving a vehicle on a roadway.²⁴ Specifically, the trooper observed Huffman "jerking back to the right side of the road [three times]. On the fourth occasion, the vehicle crossed the centerline" of the roadway.²⁵ After the stop and investigation, the trooper arrested Huffman for driving under the influence.²⁶

¶21 In the prosecution that followed, Huffman moved to suppress all evidence obtained from the stop.²⁷ She argued there was no reasonable suspicion of a traffic infraction under RCW 46.61.140 to justify the stop.²⁸ The district court agreed and granted her motion.

¶22 On RALJ review, the superior court reversed. The court concluded that Huffman had committed a traffic infraction under RCW 46.61.100.²⁹

¶23 This court granted Huffman's request for discretionary review. The question was "whether the ‘as nearly as practicable’ language of RCW 46.61.140 applie[d] to RCW 46.61.100."³⁰ We held that this qualifying language of RCW 46.61.140 does not apply to RCW 46.61.100.³¹ We further concluded that our decision in State v. Prado ³² was limited the facts in that case, which involved only a violation of RCW 46.61.140, not RCW 46.61.100.³³

¶24 Similar logic applies here. RCW 46.61.670 is explicit that it is unlawful to drive any vehicle:

over or along any pavement ... on a public highway with one wheel or all of the wheels off the roadway thereof , except ... for the purpose of stopping off such roadway, or having stopped thereat, for proceeding back onto the pavement....^{[34 ]}

¶25 Thus, driving over the fog line is a traffic infraction unless one of the enumerated exceptions in this statute applies.

¶26 Here, Kocher did not squarely raise below the argument that she satisfied the stopping exception.³⁵ . Thus, we need not consider this argument.³⁶ In any event, she properly concedes she did not stop³⁷

¶27 In contrast, RCW 46.61.140 addresses the safe changing of lanes and the use of a centerline. Specifically, it states:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:

(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

....^[38]

¶28 Notably, this statute contains the qualifier "as nearly as practicable" that RCW 46.61.670 does not. Moreover, there is no mention of driving off the roadway as stated in RCW 46.61.670.

¶29 Accordingly, the RALJ court properly applied RCW 46.61.670 and concluded that the trooper lawfully stopped Kocher.

¶30 Similarly to Huffman , Kocher unpersuasively argues that harmonizing RCW 46.61.140 with RCW 46.61.670 requires reading into the latter statute the former's "as nearly as practicable" language. The Huffman court rejected this argument.³⁹ And we hold likewise. We will not, in the guise of construing the statute, add language to RCW 46.61.670 that the legislature chose not to put there.⁴⁰ Such an interpretation would be inconsistent with the plain language of RCW 46.61.670.

¶31 Kocher relies on two cases from this court...