State Of Washington v. Denise Lorraine Weiss ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
November 15, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47942-7-II
Respondent,
v.
DENISE LORRAINE WEISS, UNPUBLISHED OPINION
Appellant.
JOHANSON, J. — Following a bench trial on a stipulated record, the trial court found Denise
Lorraine Weiss guilty of unlawful possession of a controlled substance. At sentencing, the trial
court waived discretionary legal financial obligations (LFOs), but imposed mandatory LFOs,
including a mandatory $100 deoxyribonucleic acid (DNA) collection fee. Weiss appeals from the
imposition of the mandatory $100 DNA collection fee, asserting that the DNA collection fee
statute violates her substantive due process rights in light of her inability to pay the fee. We affirm.
FACTS
On September 2, 2014, the State charged Weiss with unlawful possession of a controlled
substance. The matter proceeded to a bench trial on a stipulated record, after which the trial court
found Weiss guilty of the charged crime. At sentencing, defense counsel requested that the
sentencing court waive discretionary LFOs, asserting that Weiss lacked the ability to pay the LFOs.
The sentencing court inquired about Weiss’s financial resources. Weiss told the sentencing court
No. 47942-7-II
that she (1) was not employed, (2) had not worked at a full-time job for six years, (3) was in the
process of appealing the denial of social security disability benefits, and (4) had previously worked
as a house painter but could not continue that work due to her disabilities. The sentencing court
found that Weiss did not have the present or likely future ability to pay discretionary LFOs and,
thus, declined to impose any discretionary LFOs. The sentencing court imposed $800 in
mandatory LFOs, including $100 in DNA collection fees. Weiss appeals from the imposition of
the mandatory DNA collection fee.
ANALYSIS
RCW 43.43.75411 provides in relevant part that “[e]very sentence imposed for a crime
specified in RCW 43.43.754 must include a fee of one hundred dollars” for the collection of the
offender’s DNA sample. (Emphasis added.) Sentencing courts lack discretion to waive this DNA
collection fee. State v. Mathers, 193 Wash. App. 913, 920-21, 376 P.3d 1163 (2016), review denied,
No. 93262-0 (Wash. Sept. 28, 2016); State v. Lundy, 176 Wash. App. 96, 102, 308 P.3d 755 (2013).
Weiss contends that the mandatory nature of this DNA collection fee, without any consideration
of her ability to pay the fee, violates her substantive due process rights. We disagree.
We review constitutional challenges de novo. State v. Schmeling, 191 Wash. App. 795, 798,
365 P.3d 202 (2015). We presume that a statute is constitutionally sound, and Weiss bears the
heavy burden of showing that there is no reasonable doubt that the challenged statute is
unconstitutional. Schmeling, 191 Wash. App. at 798.
1The legislature amended RCW 43.43.7541 in 2015. LAWS OF 2015, ch. 265 § 31. Because this
amendment is not relevant to the issue in this case, we cite to the current version of the statute.
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No. 47942-7-II
Our state and federal constitutions prohibit the deprivation of life, liberty, or property
without due process of law. U.S. CONST., amends. V, XIV, § 1; WASH. CONST., art. I, § 3. “‘The
due process clause of the Fourteenth Amendment confers both procedural and substantive
protections.’” Nielsen v. Dep’t of Licensing, 177 Wash. App. 45, 52, 309 P.3d 1221 (2013) (quoting
Amunrud v. Bd. of Appeals, 158 Wash. 2d 208, 216, 143 P.3d 571 (2006)). “Substantive due process
protects against arbitrary and capricious government action.” Amunrud, 158 Wash. 2d at 218-19.
Government action violates substantive due process if the resulting deprivation of life, liberty, or
property is substantively unreasonable or is unsupported by a legitimate justification. Nielsen, 177
Wash. App. at 53.
Weiss concedes that the mandatory DNA collection statute does not concern a fundamental
right and that our review of her constitutional challenge to the statute is under the rational basis
standard. Under the rational basis standard, we determine whether a rational relationship exists
between the challenged law and a legitimate state interest. Amunrud, 158 Wash. 2d at 222. This
standard is highly deferential to the challenged law. Nielsen, 177 Wash. App. at 56.
Weiss acknowledges the legislature’s legitimate interest in funding the collection, analysis,
and retention of convicted offenders’ DNA profiles to facilitate criminal investigations and
prosecutions, but contends that the interest is not rationally served by imposing a mandatory fee
on offenders unable to pay it. We recently rejected an argument identical to Weiss’s: that the
mandatory nature of the DNA collection fee, without any consideration of her ability to pay the
fee, violates her substantive due process rights.
In State v. Seward, we held,
[T]hat the DNA collection fee, the [victim penalty assessment], and the filing fee
are rationally related to the legitimate state interests described above in two ways.
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First, imposing these fees and the assessment on all felony offenders without first
considering their ability to pay is rationally related to legitimate state interests
because even though some offenders may be unable to pay, some will. So the
imposition of these fees and assessments on all offenders creates funding sources
for these purposes.
Second, imposing these fees and the assessment on offenders who may be
indigent at the time of sentencing is also rationally related to funding these purposes
because the defendant’s indigency may not always exist. We can conceive of
situations in which an offender who is indigent at the time of sentencing will be
able to pay the fees and assessments in the future. So it is not unreasonable to
believe that imposing these fees and assessments on all indigent offenders would
result in some funding for these purposes.
No. 47581-2, slip op. at 5-6 (Wash. Ct. App. Nov. 1, 2016).
Accordingly, we affirm the imposition of the DNA collection fee.
A majority of the panel having determined that this 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.
JOHANSON, J.
I concur:
LEE, J.
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BJORGEN, C.J. (concurring) — I disagreed with the majority’s substantive due process
analysis in State v. Seward, No. 47581-2, slip op. (Wash. Ct. App. Nov. 1, 2016), for the reasons
set out in my dissent in that appeal. My disagreement with that analysis continues, but, because
Seward is a published decision of this court, concur with applying it in this appeal.
______________________________________
BJORGEN, C.J.
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