State Of Washington v. Christopher K. Wittman ( 2016 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
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No. 72811-3-1
Respondent,
v. DIVISION ONE ci CO
\
CHRISTOPHER K. WITTMAN, UNPUBLISHED OPINION
Appellant. FILED: August 8, 2016
Leach, J. — Christopher Wittman appeals the trial court's imposition of a
mandatory $100 deoxyribonucleic acid (DNA) fee. He argues that the mandatory
DNA fee statute,1 as applied to an indigent defendant, violates substantive due
process and equal protection. Our recent opinions in State v. Shelton2 and State
v. Lewis3 considered and rejected the same arguments. Wittman also claims that
the trial court abused its discretion when it required him to provide a DNA
sample. But the record does not show that Wittman has actually provided a DNA
sample or that the state crime laboratory database has one. The trial court did
not abuse its discretion. We affirm.
Background
On December 18, 2013, Wittman drove his car while intoxicated and
speeding, causing a collision that injured several people and killed Barbara
Eakin. Wittman pleaded guilty on September 17, 2014, to vehicular homicide
1 RCW 43.43.7541.
2 No. 72848-2-I, 2016 WL 3461164, at *1 (Wash. Ct. App. June 20, 2016).
3 No. 72637-4-I, slip op. at 1 (Wash. Ct. App. June 27, 2016).
No. 72811-3-1/2
(DUI)4, vehicular assault (DUI), and reckless endangerment. His criminal history
included two earlier felony convictions. The trial court imposed concurrent
sentences of 130 months for vehicular homicide and 20 months for vehicular
assault and imposed a 364-day suspended sentence on the reckless
endangerment conviction. It imposed a mandatory DNA collection fee and
required Wittman to provide a DNA sample.
Analysis
Wittman claims, for the first time on appeal, that the mandatory DNA fee
required by RCW 43.43.7541 violates substantive due process when imposed on
an indigent defendant. The State has not attempted to collect the DNA fee from
Wittman and has not imposed sanctions for his failure to pay the fee. Thus, as
this court recently held in Shelton, this as-applied substantive due process
challenge is not ripe for review.5 Nor is imposition of the fee a manifest error
affecting a constitutional right subject to review under RAP 2.5(a)(3).6
Wittman also asserts that as applied to a repeat offender, the statute
violates equal protection. But in Lewis, this court considered and rejected the
same challenge. We held that a rational basis exists to impose a fee for every
felony sentence because the fee funds both the cost of collection and the costs
to operate and maintain the DNA database.7
4 Driving while intoxicated (DUI).
5 Shelton, WL 3461164, at *4.
6 Shelton, WL 3461164, at *4.
7 Lewis, slip op. at 10.
No. 72811-3-1/3
Wittman also claims that the trial court abused its discretion when it
required him to provide a DNA sample. RCW 43.43.754(2) provides, "If the
Washington state patrol crime laboratory already has a DNA sample from an
individual for a qualifying offense, a subsequent submission is not required to be
submitted."
Wittman cites only his criminal history described in the record to support
his claim that he already submitted a DNA sample. But the record does not show
that Wittman actually submitted a DNA sample or that the Washington State
Patrol Crime Laboratory has a DNA sample for a qualifying offense. Without this
showing, his argument fails.8
Conclusion
Under Shelton and Lewis, Wittman's arguments fail. We affirm.
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WE CONCUR:
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8 Lewis, slip op. at 10-11.