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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                          )           No. 66133-7-I
                                               )          
                       Respondent,             )          DIVISION ONE
                                               )
               v.                              )
                                               )
 ANTHONY FISHER,                               )          UNPUBLISHED
                                               )
                       Appellant.              )          FILED: May 29, 2012
                                               )
                                               )

       Cox, J.  --  Anthony Fisher appeals his conviction for felony vehicular 

assault.  He claims that the trial court abused its discretion by failing to instruct 

the jury as to second degree negligent driving, which he claims is a lesser 

included offense. Further, Fisher argues that the court violated his right to due 

process because he was found to be strictly liability for driving while under the 

influence of a legally prescribed medication. 

       The vehicular assault statute criminalizes driving a vehicle and 

substantially injuring another while under the influence of any drug, even 

Ambien.  And second degree negligent driving is a traffic infraction and not a 

crime.  Therefore, Fisher's due process rights were not infringed nor did the trial 

court abuse its discretion.  Consequently, we affirm. 

       In 2009, Fisher traveled by car to purchase a refill of Ambien, his 

prescription drug sleeping medication.  He took his medication, and then,  

No. 66133-7-I/2

approximately twenty minutes later, began to drive home.  While driving, Fisher 

struck a bicyclist, fracturing her rib and causing other serious injuries.  

       The State charged Fisher by information with vehicular assault.  After 

closing arguments, Fisher requested that the trial court instruct the jury on 

second degree negligent driving.  The court denied Fisher's request.  The jury 

convicted him as charged. 

       Fisher appeals. 

                          LESSER INCLUDED OFFENSE

       Fisher argues that the trial court abused its discretion when it failed to 

instruct on second degree negligent driving, which he argues is a lesser 

included offense of vehicular assault.  We disagree and hold there was no 

abuse of discretion in denying this request.

       A defendant is entitled to a lesser included offense instruction if: (1) each 

element of the lesser included offense is a necessary element of the offense 

charged and (2) the evidence, when viewed most favorably to the defendant, 
supports that only the lesser crime was committed.1 We review a trial court's 

refusal to give a lesser instruction for abuse of discretion.2

       An individual is guilty of negligent driving in the second degree if "under 

circumstances not constituting negligent driving in the first degree, he or she 

operates a motor vehicle in a manner that is both negligent and endangers or is 

       1 State v. Hahn, __ Wn.2d __, 271 P.3d 892, 893 (2012) (citing State v. 
Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)). 

       2 State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998).

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No. 66133-7-I/3

likely to endanger any person or property."3 Under RCW 46.61.522, a person is 

guilty of vehicular assault if he or she "operates or drives any vehicle" while 

"under the influence of intoxicating liquor or any drug, as defined by RCW 
46.61.502, and causes substantial bodily harm to another . . .  ."4

       Here, the trial court did not abuse its discretion when it refused to instruct 

on second degree negligent driving.  Negligent driving in the second degree is a 
traffic infraction.5  As Division Two of this court noted in State v. Farr-Lenzini6

       [a] person cited for an infraction can respond in a number of ways, 
       such as by paying a penalty or requesting a contested hearing.  
       There is no right to a jury at a contested traffic infraction hearing.  
       And the State's burden of proof is only a preponderance of the 
       evidence.  Thus, the Legislature clearly removed this offense from 
       the arena of criminal litigation and procedure.  To instruct the jury 
       to consider it as a lesser included offense of the criminal offense of 
       reckless driving would be contrary to this clear legislative intent.[7]

As in Farr-Lenzini, it would have been improper for the court to instruct the jury 

based on a traffic infraction.  Thus, the court did not abuse its discretion. 

       Fisher argues that second degree negligent driving is a lesser included 

offense of vehicular assault in that all of the elements outlined in RCW 

46.61.525 are necessary elements of vehicular assault.  But, as noted above, 

       3 RCW 46.61.525.

       4 (Emphasis added.) 

       5 RCW 46.61.525(1)(c).

       6 93 Wn. App. 453, 970 P.2d 313 (1999).

       7 Id. at 467.

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No. 66133-7-I/4

because this statute outlines a traffic offense, it cannot be a lesser included 

offense.      Furthermore, the evidence, even when viewed in the light most 

favorable to Fisher does not support that only the lesser crime was committed.  

Fisher's actions satisfied the elements of the charged offense:  he caused 

substantial bodily harm to another while driving under the influence of a drug.  If 

did not fall within the elements of negligent driving.  Thus, his argument is 

unpersuasive.

        USE OF PRESCRIPTION DRUGS AND VEHICULAR ASSAULT

       Fisher also contends that, because he was lawfully using a prescription 

drug at the time of the accident, his conviction for vehicular assault violated his 

due process rights.  Because the vehicular statute clearly encompasses Fisher's 

behavior, and because it is within the Legislature's power to craft strict liability 

crimes, we disagree.

       "Our primary duty in interpreting any statute is to discern and implement 
the intent of the legislature."8 A statute is unambiguous when it is not 

susceptible to two or more interpretations.9 When statutory language is 

unambiguous, the court gives effect to the plain meaning of the statute.1 The 

court cannot add words to an unambiguous statute when the legislature has 

       8 State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (citing Nat'l Elec. 
Contractors Ass'n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999)).

       9 State v. Delgado, 148 Wn.2d 723, 726-27, 63 P.3d 792 (2003) (citing 
State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993)).

       1 J.P., 149 Wn.2d at 450 (quoting Riveland, 138 Wn.2d at 19).

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No. 66133-7-I/5

chosen not to include them.11  The meaning of a statute is a question of law that 

this court reviews de novo.12 We also review alleged due process violations de 

novo. 

       As noted above, a person is guilty of vehicular assault if he drives a 

vehicle while "under the influence of intoxicating liquor or any drug, as defined 
by RCW 46.61.502(b), and causes substantial bodily harm to another . . .  ."13

RCW 46.61.502(b) states that a person is guilty of driving under the influence if 

he drives a vehicle within this state while under the influence of or affected by 
intoxicating liquor or any drug.14  Further, section 2 of that statute makes clear 

that being under the influence of a legally prescribed drug does not constitute a 

valid defense.  "The fact that a person charged with a violation of this section is 

or has been entitled to use a drug under the laws of this state shall not constitute 
a defense against a charge of violating this section."15 Additionally, under RCW 

46.61.540, the word "drugs" "shall include but not be limited to those drugs and 

substances regulated by chapters 69.41 and 69.50 RCW."  These chapters 
include regulation of medicines such as prescription sleep aids.16  Thus, the 

       11 Id. (citing Delgado, 148 Wn.2d at 727).

       12 State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).

       13 (Emphasis added.) 

       14 (Emphasis added.)

       15 RCW 46.61.502(2).

       16 See RCW 69.41.010(9).

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No. 66133-7-I/6

plain language of this statute is clear.  A person commits vehicular assault if he drives a 

vehicle while under the influence of any drug and subsequently causes 

substantial bodily harm to another. 

       Here, it was undisputed that Fisher was driving a vehicle while under the 

influence of a prescription drug, Ambien.  Because this drug falls within the 

definition of "any drug" used in the vehicular assault statute, the trial court did 

not violate his due process rights when it accepted the jury's finding of guilt. 

       Fisher argues that the supreme court's decision in Kaiser v. Suburban 
Transportation System17 supports his argument that the trial court's 

interpretation of RCW 46.61.522 was incorrect.  But Kaiser is unpersuasive.  

There, in dictum, the court indicated that a driver might avoid civil liability for 

injuries to another caused by the driver's medication and consequent loss of 

consciousness.  But, as noted above, the plain language of the criminal statute 

regarding vehicular assault is clear:  an individual is guilty if he drives a vehicle 

while under the influence of any drug and causes substantial bodily harm to 
another.18 The Legislature's clear intent does not support the dictum of the 

divided court in Kaiser. 

       There, a bus passenger was injured after the driver lost consciousness
due to certain medication he had taken.19 It was a civil, not a criminal case, and

       17 65 Wn.2d 461, 398 P.2d 14 (1965) (abrogated on other grounds by 
Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (1967)).

       18 RCW 46.61.522

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No. 66133-7-I/7

consequently, the court was interpreting the bus driver's culpability under a negligence

standard, rather than according to a criminal statute.  Further, the court held that 

it was for the jury to determine whether the bus driver had been warned of the 
possible effects of the drug.2  Here, the vehicular assault statute is clear. 

       Fisher also appears to argue that the statute itself violates due process

because it creates a strict liability crime.  In its analysis of the vehicular homicide 

statute, the supreme court concluded that "the Legislature may create strict 
liability crimes -- crimes which include no culpable mental state."21 Thus, the 

Legislature's decision to make vehicular assault a strict liability crime is within its 

discretion, and not an abuse of a defendant's due process rights. 

       Additionally, Fisher contends that the trial court's Jury Instruction 5 

rendered him strictly liable for the accident because it directed the jury to find 

that his use of Ambien, a lawfully prescribed drug, automatically constituted "any 

drug" within the definition of the statute. A trial court's "decision whether to give 

a particular instruction to the jury is a matter that we review only for abuse of 
discretion."22 Further, we consider a claimed error in a jury instruction only if the 

specific issue was timely raised to the trial court by a specific adequate 
exception to that instruction.23 Because the record before us does not indicate 

       19 Kaiser, 65 Wn.2d at 462-63. 
       2 Id. at 468.

       21 State v. Rivas, 126 Wn.2d 443, 452, 896 P.2d 57 (1995).

       22 Anfinson v. FedEx Ground Package Sys., Inc., 159 Wn. App. 35, 44, 
244 P.3d 32 (2010). 

                                           7 

No. 66133-7-I/8

that Fisher timely raised an adequate exception to Instruction 5, we need not 

consider Fisher's objections to the jury instruction. 

       We affirm the judgment and sentence.

WE CONCUR:

       23 See Van Hout v. Celotex Corp., 121 Wn.2d 697, 702, 853 P.2d 908 
(1993). 

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