On June 20, 2016, Division One of the Washington State Court of Appeals denied as premature an appeal by a defendant who challenged the constitutionality of imposing DNA sampling collection fees on an indigent defendant. The court did, however, remand the case back to the trial court for a determination of whether the statutory requirements were met to order a mental health evaluation.

In 2014, Michael Shelton was charged with second degree assault with a deadly weapon. A jury convicted him as charged and the trial judge imposed a sentence which included 15 months in prison and 18 months supervised probation. Shelton, who as adjudged indigent at the outset of the case, was also ordered to pay a $500 victim penalty assessment and a $100 statutorily-mandated DNA sample collection fee, and ordered Shelton to obtain substance abuse and mental health evaluations within 30 days of his release.

Shelton appealed, arguing the DNA fee statute, RCW 43.43.7541, violates substantive due process as applied to an indigent defendant. Shelton also argued that the mental health evaluation order was improper because the trial court failed to make a finding required by statute that Shelton was "a mentally ill person." See former RCW 9.94B.080 (2008).

The appellate court first denied Shelton's DNA fee challenge as premature, ruling that his rights are not implicated unless and until the state actually tries to collect the fee.

"Constitutional principles are implicated only when the State seeks to enfOrce collection of the mandatory assessment," and the mere imposition of the DNA collection fee "is not enough to raise constitutional concerns," the court held.

The court went on to find that Shelton may indeed challenge the constitutionality of the DNA fee statute as applied to an indigent defendant when he is "faced with the alternatives of payment or imprisonment." Because his financial circumstances may change by that time, the court said it could not rule on his challenge at this time.

The Court of Appeals did reverse the mental health evaluation order, finding that the statute's plain and unambiguous language states that a trial court may only order such an evaluation if the person is mentally ill and that illness "influenced the offense."

The state conceded that while the trial court did find that "mental health issues contributed to the offense," it did not make a finding that Shelton was a mentally ill person as defined by law. "We accept the concession as well taken," the court said, "and remand to determine whether to order a mental health evaluation in accordance with the requirements as set forth in former RCE 9.94B.080." See State of Washington v. Shelton, No. 72848-2-I (C.A. WA), June 20, 2016.

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