State Of Washington, Respondent V. Christopher K. Wittman, Appellant

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
CHRISTOPHER K. WITTMAN,
Appellant.
No. 72811-3-1 r~3 	t'V"
DIVISION ONE 	ci 	CO
UNPUBLISHED OPINION
\
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.
i/g^U^-\
WE CONCUR:
m,
8 Lewis, slip op. at 10-11.