HUNT

Oliver Ross Davis, Washington Appellate Project, Seattle, WA, for Appellant. Timothy J. Higgs, Mason Co. Pros. Atty. Office, Shelton, WA, for Respondent.
HUNT, P.J.

¶ 1 Terry L. Jacob appeals his jury conviction and sentence for felony driving while under the influence (DUI), former RCW 46.61.502(6) (2011). He argues that the trial court (1) miscalculated his offender score under RCW 9.94A.525(2)(e); (2) wrongly imposed the statutory maximum confinement term plus a community custody term; and (3) wrongly excluded testimony that he had used an asthma inhaler on the day of his arrest. The State asserts that the Morales opinion “force[s]” it to concede the first sentencing error (miscalculated offender score); the State concedes the second sentencing error (exceeded statutory maximum). We reject the State's “forced concession” of sentencing error based on Morales, adopt most (but not all) of Division One's rationale in Morales, and accept the State's second concession of sentencing error based on the Supreme Court's superseding of the Brooks notation. We hold that the trial court did not err in excluding the inhaler testimony, affirm Jacob's conviction, vacate his sentence, and remand for recalculation of his offender score and resentencing.

FACTS

¶ 2 On October 3, 2011, Jacob consumed two or three alcoholic drinks between 5:17 PM and 6:02 PM at “Jimmy D's” in Belfair and drove away. I Report of Proceedings (RP) at 169. A few minutes later, three to five miles from Jimmy D's, Mason County Sheriff's Deputy Kelly LaFrance pulled over Jacob's vehicle. LaFrance learned that the vehicle was registered to Jacob, whose license had been revoked and for whom there was an outstanding arrest warrant. As LaFrance approached, she smelled a strong odor of intoxicants coming from the partially opened driver's window, asked Jacob to exit the car, and informed him that he had an outstanding arrest warrant. She observed that his eyes were red and watery, his speech was slurred, and he smelled of intoxicants. She placed Jacob in her patrol car and called Deputy Duain Dugan to process Jacob for a suspected DUI.

¶ 3 Dugan asked Jacob if he (Jacob) would allow him (Dugan) to conduct field sobriety tests; Jacob agreed. Dugan administered a horizontal gaze nystagmus (HGN) test, which indicated impairment. Dugan administered a finger dexterity test, which Jacob did not pass. Dugan also administered a finger-to-nose test: Jacob missed touching the tip of his nose with his finger six out of seven tries.

¶ 4 Dugan placed Jacob under arrest for DUI and gave him the implied consent warning required for administering a breath test for the presence of alcohol. Jacob declined to take a breath test. After obtaining a blood draw search warrant, Dugan transported Jacob to the hospital, where a technician drew Jacob's blood at approximately 10:20 PM.

¶ 5 At trial, state toxicologist Justin Knoy testified that (1) Jacob's blood had registered .10 g/100ml blood alcohol concentration , and (2) certain “medication[s] like muscle relaxants or sleep aids” as well as “different inhalants that some people may use for huffing, like gasoline or Dust[-]Off” may affect the subject's eyes during the HGN test. I RP at 120. Knoy did not, however, testify about the presence of any inhalants in Jacob's blood; nor did Jacob cross-examine Knoy about this subject.

¶ 6 Nevertheless, Jacob later sought to testify that, on the day of his arrest, he had used an “inhaler ... for COPD.” II RP at 214. Jacob claimed that his use of an inhalant device brought into question the accuracy of the blood test results on the day of his arrest; but (1) he made no offer of proof that he had used the type of muscle relaxants, sleep aids, or non-medicinal inhalants “like gasoline or Dust[-]Off,” which Knoy had testified might affect the subject's eyes during an HGN test; (2) he offered no expert testimony about the potential effect on his blood alcohol level of these substances in general or of his medicinal inhalant in particular, nor did he seek to recall State expert witness Knoy to explore these issues. I RP at 120. The superior court denied Jacob's request, ruling that his inhalant use was not relevant because there was no evidence to establish that inhalant use affects a blood alcohol content reading.

¶ 7 On December 2, 2011, a jury convicted Jacob of felony DUI under former RCW 46.61.502(6) (2011) and first degree driving while license suspended (DWLS). At Jacob's December 8 sentencing, the trial court calculated his offender score as nine under RCW 9.94A.525(2)(e), based on eight of the nine offenses listed in the following criminal history, plus one additional point for Jacob's having been on community custody when he committed the present offense:

The trial court included two offender score points under RCW 9.94A.525(2)(e)(ii) for the following two prior convictions, because they had occurred within ten years before Jacob's present offense (for which he had been arrested on October 3, 2011): one felony DUI, committed on January 3, 2009; and one non-felony DUI, committed on March 6, 2003. The trial court did not, however, include an offender score point for Jacob's prior 2005 DWLS conviction, denoted by a single asterisk in the above grid.

¶ 8 The trial court then included six more offender points under RCW 9.94A.525(2)(e)(i) for the following six offenses that Jacob had committed more than ten years before the present offense, and within five years since the last date of release from confinement or entry of judgment and sentence: three points for three DUIs committed on January 31, 2001, May 17, 2000, and November 29, 1999; one point for a DUI committed on January 26, 1997; one point for a drug conviction, committed on June 10, 1991 ; and one point for a DUI committed on August 29, 1988.

¶ 9 The trial court sentenced Jacob to 60 months of confinement for the present felony DUI conviction and 364 days for the DWLS conviction; it also imposed a community custody term of 12 months or the period of earned release, whichever was greater, such that Jacob's total combined sentence would not exceed the statutory maximum of 60 months. Jacob appeals his felony DUI conviction and sentence.

ANALYSIS

Felony DUI Offender Score: Morales and RCW 9.94A.525(2)(e)

¶ 10 Jacob argues that the superior court erred in including his 1993 drug conviction and his 1989 DUI in calculating his felony DUI offender score, citing Morales. We agree that inclusion of his 1993 drug and 1989 DUI convictions was improper. We adopt most, but not all, of the corresponding Morales rationale; and we remand for resentencing.

¶ 11 In Morales, Division One of our court strictly interpreted RCW 9.94A.525(2)(e) and held that this statute specifies a limited class of prior offenses to be used in offender score calculations for felony DUI sentences. Morales, 168 Wash.App. at 498, 278 P.3d 668.RCW 9.94A.525(2)(e) provides:

If the present conviction is felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)) ... prior convictions of felony driving while under the influence of intoxicating liquor or any drug, felony physical control of a vehicle while under the influence of intoxicating liquor or any drug [ (RCW 46.61.504(6)) ], and serious traffic offenses [ ] shall be included in the offender score if:

(i) The prior convictions were committed within five years since the last date of release from confinement (including full-time residential treatment) or entry of judgment and sentence; or

(ii) the prior convictions would be considered “ prior offenses within ten years ” as defined in RCW 46.61.5055.
(Emphasis added). These subsection (ii) “prior offenses,” however, do not include every crime; rather, they are limited to the following statutorily specified offenses: nonfelony DUI (RCW 46.61.502), nonfelony physical control of vehicle while under the influence (RCW 46.61.504), vehicular homicide (RCW 46.61.520), vehicular assault (RCW 46.61.522), negligent driving (RCW 46.61.5249), reckless driving (RCW 46.61.500), and reckless endangerment (RCW 9A.36.050); these “prior offenses” also include deferred prosecutions and comparable out-of-state convictions for these listed crimes. Former RCW 46.61.5055(14)(a) (2011).

A. Subsection (ii) “prior [former RCW 46.61.5055 (2011) ] offenses within ten years”

¶ 12 Division One turned first to subsection (2)(e)(ii) of RCW 9.94A.525 to determine (1) which of Morales' prior convictions qualified as “prior offenses ... as defined in former RCW 46.61.5055 (2008),” and (2) which of those “prior offenses” had occurred within ten years of his current felony DUI conviction. Morales, 168 Wash.App. at 495, 278 P.3d 668. The court then determined that Morales' offender score should include three points for three prior nonfelony DUI convictions during this ten-year period. Morales, 168 Wash.App. at 495, 278 P.3d 668;RCW 9.94A.525(2)(e)(ii). Adopting this part of Division One's Morales analysis, we hold that under subsection (ii) the trial court erred in including Jacob's 1993 drug conviction in his offender score because this conviction did not occur within ten years before his present 2011 felony DUI conviction.

B. Subsection (i) “prior convictions” committed within five years “since” release from confinement or entry, of judgment and sentence

¶ 13 Turning to subsection (2)(e)(i) of RCW 9.94A.525, Division One next determined which prior offenses had occurred within five-year intervals since the last date of release from confinement or entry of judgment and sentence for a prior offense. Division One identified these five-year intervals as having accumulated during subsection (ii)'s ten-year period immediately preceding the current offense. Morales, 168 Wash.App. at 495–96, 498, 278 P.3d 668. Strictly interpreting RCW 9.94A.525(2)(e), Division One held that (1) only statutorily specified prior convictions occurring during an RCW 9.94A.525(2)(e)(i) five-year interval can count as offender score points for felony DUI sentences; and (2) the trial court erred in considering Morales' 1996 assault conviction, which occurred within such a five-year interval, because assault is not one of the prior offense that RCW 9.94A.525(2)(e) includes for felony DUI offender score calculation purposes. Morales, 168 Wash.App. at 497–500, 278 P.3d 668.

1. Prior convictions that count as offender score points

¶ 14 We find persuasive Division One's reasoning in determining the type of “prior convictions” that are includable under subsection (i) for felony DUI offender score purposes. Thus, we adopt the first part of its Morales holding—that under subsection (i) only RCW 9.94A.525–specified prior convictions count as offender score points for purposes of sentencing a defendant convicted of former RCW 46.61.502(6) (2008) felony DUI. Accordingly, we agree with Jacob and hold that, like the improper inclusion of Morales' prior assault conviction in his offender score, the trial court here similarly erred in including Jacob's 1993 drug conviction in his offender score because drug convictions are not among the statutorily specified prior convictions for offender score inclusion under subsection (i) of RCW 9.94A.525(2)(c).

2. Prior convictions that begin the running of the five-year intervals

¶ 15 But we decline to adopt the second part of Division One's Morales rationale and holding, which use these same statutorily specified prior convictions also to define the five-year intervals during which commission of these prior offenses are includable in a felony DUI offender score under RCW 9.94A.525(2)(e)(i). Division One (1) focused on the legislature's use of the term “any crime” in RCW 9.94A.525(2) subsections (b), (c), and (d); and (2) reasoned that, because subsection (e)(i) of RCW 9.94A.525(2) does not similarly use the phrase “any crime,” the legislature must have intended that only the crimes specified in RCW 9.94A.525(2)(e) could underlie “release from confinement” or “entry of judgment and sentence.” Morales, 168 Wash.App. at 493, 278 P.3d 668. Respectfully disagreeing with Division One on this point, we do not adopt that part of its Morales rationale to define the type of offenses that circumscribe subsection (i) five-year statutory intervals. Instead, we hold that, in determining whether a defendant has been crime-free for five-year intervals under RCW 9.94A.525(2)(e)(i), the sentencing court must decide whether one of the listed prior offenses occurred within a five-year period measured from the last preceding judgment and sentence or the last preceding release from custody for any crime.

¶ 16 To support our holding, and our departure from Division One's Morales holding on this point, we first look to the statute's plain language. Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9–10, 43 P.3d 4 (2002) (citing State v. J.M., 144 Wash.2d 472, 480, 28 P.3d 720 (2001)). Where different language is used in the same connection in different parts of a statute, it is presumed that a different meaning was intended. State v. Roggenkamp, 153 Wash.2d 614, 625, 106 P.3d 196 (2005) (citing State v. Beaver, 148 Wash.2d 338, 343, 60 P.3d 586 (2002)). Courts will not read into a statute that which the legislature left out. Seattle Ass'n of Credit Men v. Gen. Motors Acceptance Corp., 188 Wash. 635, 639, 63 P.2d 359 (1936). Applying these statutory construction principles here, we hold that the lack of the phrase “any crime” in RCW 9.94A.525(2)(e)(i) neither defines nor limits the parameters of the five-year statutory intervals to which the sentencing court may look for commission of additional “prior convictions” outside subsection (ii)'s ten-year period immediately preceding the present conviction.

¶ 17 Subsections (b), (c), and (d) of RCW 9.94A.525(2) specify only which prior convictions “shall not be included ” in offender score calculations when “the offender spends five years in the community without committing any crime.” RCW 9.94A.525(2)(d) (emphasis added). In contrast, subsection (e)(i) of RCW 9.94A.525(2) expressly requires offender score inclusion of qualifying “prior convictions” that were “committed within five years since the last date of release from confinement (including full-time residential treatment) or entry of judgment and sentence.” Nothing in the pertinent statutory language extends the definition of includable “prior convictions” to the type of crimes underlying a release from confinement or a judgment and sentence that begins the five-year intervals during which conviction for these specified crimes counts in offender score calculations. Again, in our view, the statute's plain language does not support Division One's analysis.

¶ 18 Moreover, no express language in the statute suggests a contrary notion that the legislature intended to so limit the crimes used to determine the parameters of the five-year intervals. We will not read into the statute a limitation that the legislature did not establish and does not exist. Seattle Ass'n of Credit Men, 188 Wash. at 639, 63 P.2d 359 We further note that (1) the plain meanings of the subsection (i) phrases “release from confinement” or “entry of judgment and sentence” include confinement or sentence for any type of crime, RCW 9.94A.525(2)(e)(i); and (2) if the legislature had intended to restrict these parameter-defining crimes to a limited class, as it did expressly for offender score inclusion purposes, it would also have expressly done so.

¶ 19 We apply a similar plain language analysis to the legislature's use of the word “since,” which means “after,” to mark the beginning of a subsection (i) five-year interval. SeeRCW 9.94A.525(2)(e)(i). Under this approach, prior convictions for specified offenses count toward a felony DUI offender score only if they occurred within five years after another prior conviction or release from confinement for any crime. Here, the trial court included Jacob's 1989 DUI conviction in his offender score for his current felony DUI. But although this 1989 DUI conviction occurred within five years of Jacob's 1993 drug conviction, his 1989 DUI conviction occurred before, not after, his 1993 drug conviction. Therefore, as the State conceded at oral argument, under the statute'splain language, Jacob's 1989 DUI conviction should not have been included in his current offender score.

¶ 20 We hold, therefore, (1) that the trial court improperly included Jacob's 1989 DUI in his offender score; but (2) the trial court did not err in using Jacob's 1993 drug conviction to begin a five-year interval “since” Jacob's release from confinement or last judgment and sentence. Accordingly, we vacate Jacob's sentence and remand for recalculation of Jacob's offender score and resentencing consistent with our analysis.

¶ 21 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

******UNPUBLISHED TEXT FOLLOWS******

Exclusion of Inhalant Device Testimony

¶ 22 Jacob argues that his proposed testimony about his COPD inhaler use on the day of his DUI arrest was relevant and that the trial court erred in excluding it because Knoy indicated that inhalants affect blood alcohol levels. This argument fails.

A. Standard of Review

¶ 23 We review a trial court's evidentiary rulings for abuse of discretion. State v. Finch, 137 Wash.2d 792, 810, 975 P.2d 967,cert. denied,528 U.S. 922, 120 S.Ct. 285, 145 L.Ed.2d 239 (1999). A court abuses its discretion when its evidentiary ruling is “ ‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.’ ” State v. Downing, 151 Wash.2d 265, 272, 87 P.3d 1169 (2004) (quoting State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971)). We may uphold a trial court's evidentiary ruling on the grounds that the trial court used or on other proper grounds the record supports. State v. Powell, 126 Wash.2d 244, 259, 893 P.2d 615 (1995).

¶ 24 Evidence is relevant if it has “ ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” State v. Gregory, 158 Wash.2d 759, 835, 147 P.3d 1201 (2006) (quoting ER 401). The threshold for admitting relevant evidence is low; even minimally relevant evidence is admissible. Gregory, 158 Wash.2d at 835, 147 P.3d 1201 (citing State v. Darden, 145 Wash.2d 612, 621, 41 P.3d 1189 (2002)).

B. Mischaracterization of Knoy's Testimony

¶ 25 First, we note that Jacob mischaracterizes Knoy's testimony. Knoy testified only that the HGN test measures “the involuntary jerking of the eyes,” which is “brought on by alcohol, [and] other central nervous system depressants,” which could be “prescription medication like muscle relaxants or sleep aids that may be categorized as a depressant” or “different inhalants that some people may use for huffing, like gasoline or Dust Off for instance, and also PCP [phencyclidine]” in the person's system. I RP at 119–20. Knoy did not testify on direct examination about the effect of any medications or other substances that did or might have an effect on blood alcohol level; nor did Jacob attempt to elicit such testimony on cross-examination. Thus, contrary to Jacob's argument to the trial court in support of his proffered testimony, Knoy did not testify “about medications that may have an effect on blood alcohol level content.” II RP at 213–14 (emphasis added). In the absence of any evidence that medicinal inhaler use affects blood alcohol levels, Jacob's proposed testimony that he had used an inhaler the day he was arrested was irrelevant. Thus, we hold that the trial court did not abuse its discretion in excluding this testimony.

Community Custody and Incarceration

¶ 26 Jacob argues that the trial court erred in imposing the statutory maximum term of confinement plus a term of community custody that together exceed the statutory maximum and, therefore, we must remand for resentencing. The State concedes this error, acknowledging that the trial court's notation about not exceeding the statutory maximum term no longer operates to ensure the sentence's validity in light of our Supreme Court's recent decision in State v. Boyd, 174 Wash.2d 470, 473, 275 P.3d 321 (2012). Agreeing with Jacob, we accept the State's concession of error.

¶ 27 Under RCW 9.94A.701(9), the combined terms of confinement and community custody cannot exceed the statutory maximum sentence for the crime. Here, the trial court imposed the statutory maximum sentence of 60 months of confinement under RCW 9A.20.021(1)(c) and a community custody term that would be the greater of either 12 months or the period of any earned release, such that Jacob's total combined sentence would not exceed 60 months. In Boyd, the Supreme Court held that the trial court cannot impose a sentence in excess of the statutory maximum and that the so-called “ Brooks notation” (which the trial court used here in an attempt to keep Jacob's sentence from exceeding the statutory maximum) no longer complies with statutory requirements of RCW 9.94A.701(9), which the legislature amended in 2010. Boyd, 174 Wash.2d at 472, 275 P.3d 321. Instead, the trial court must reduce the term of community custody whenever the standard range confinement in combination with the community custody term exceeds the statutory maximum. RCW 9.94A.701(9); Boyd, 174 Wash.2d at 472, 275 P.3d 321. Accepting the State's concession of error, we hold that Jacob's sentence was improper under Boyd.

¶ 28 We affirm Jacob's felony DUI conviction, vacate his sentence, and remand for offender score recalculation and resentencing.

¶ 29 A majority of the panel having determined that this part of the opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

******END OF UNPUBLISHED TEXT******

We concur: PENOYAR and BJORGEN, JJ.

+---------------------------------------------------------------------------+ ¦ ¦Conviction ¦Date of Crime ¦Date of Sentence¦ ¦ +---------------------------------------------------------------------------+

+---------------------------------------------------------------------------+ ¦ ¦Felony DUI ¦01/03/09 ¦05/11/09 ¦ ¦ +--------+------------------+--------------+----------------+---------------¦ ¦ ¦*DWLS 1 ¦4/18/05 ¦- ¦ ¦ +--------+------------------+--------------+----------------+---------------¦ ¦ ¦DUI ¦03/06/03 ¦07/03/03 ¦ ¦ +--------+------------------+--------------+----------------+---------------¦ ¦ ¦DUI ¦01/31/01 ¦06/05/01 ¦ ¦ +--------+------------------+--------------+----------------+---------------¦ ¦ ¦DUI ¦05/17/00 ¦06/05/01 ¦ ¦ +--------+------------------+--------------+----------------+---------------¦ ¦ ¦DUI ¦11/29/99 ¦06/05/01 ¦ ¦ +--------+------------------+--------------+----------------+---------------¦ ¦ ¦DUI ¦01/26/97 ¦08/21/97 ¦ ¦ +--------+------------------+--------------+----------------+---------------¦ ¦ ¦*Felony Drug ¦06/10/91 ¦01/22/93 ¦ ¦ ¦ ¦Charge ¦ ¦ ¦ ¦ +--------+------------------+--------------+----------------+---------------¦ ¦ ¦* *DUI ¦08/29/88 ¦06/05/89 ¦ ¦ +---------------------------------------------------------------------------+