STATE v. PERRY, 29201-7-II (Wash.App. 4-1-2003)

MORGAN, P.J.

Eric Perry appeals his sentence, imposed by the Cowlitz County Superior Court following his convictions of two counts of delivery of methamphetamine, in violation of RCW 69.50.401(a)(1). He challenges only the requirement that he undergo HIV testing. The State concedes error, and we agree that the requirement must be removed.

A sentencing court may order HIV testing of a person convicted of a drug offense "if the court determines at the time of conviction that the related drug offense is one associated with the use of hypodermic needles." The sentencing court made no finding with regard to the use of hypodermic needles, and the record would not support such a determination. Washington State Patrol Detective James McCarthy testified that methamphetamine may be "snorted, smoked, inhaled, injected." At trial, Perry admitted the occasional use of methamphetamine, but he did not indicate the method of ingestion. There is no other evidence on this issue. Accordingly, this case is remanded to the trial court, which shall remove the requirement of HIV testing. In all other respects, the sentence is affirmed.

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 pursuant to RCW 2.06.040, it is so ordered.

ARMSTRONG and HOUGHTON, JJ., concur.