State of Washington v. Jose Luis Sosa
198 Wash. App. 176
| Wash. Ct. App. | 2017Background
- In March 2014 Jose Luis Sosa drove across the center line, causing a two-car collision that seriously injured the other driver; the injured driver later required a lifesaving partial splenectomy.
- Troopers observed signs of alcohol impairment at the scene and hospital; Sosa did not respond to offers of field sobriety or portable breath testing (PBT).
- A warrant was obtained; a blood draw 3.5 hours after the crash showed a BAC of 0.12. Sosa was charged with vehicular assault and convicted on all three statutory alternatives (reckless operation, DUI, and disregard for safety).
- At trial the State introduced evidence of Sosa’s PBT refusal and the blood test; defense counsel challenged reliability through cross-examination but did not seek suppression based on lack of an advisement about independent testing or request WPIC 92.16.
- On appeal Sosa argued (1) his blood-test evidence should be suppressed because officers did not advise him of the right to independent testing, (2) equal protection and due process were violated, (3) counsel was ineffective for several omissions, and (4) the prosecutor made improper sympathetic appeals; he also challenged a $1,041.90 DUI fine imposed at sentencing.
- The Court affirmed the conviction, rejected suppression and most ineffective-assistance and misconduct claims, but reversed the DUI fine for lack of statutory authority and waived appellate costs.
Issues
| Issue | Sosa's Argument | State's Argument | Held |
|---|---|---|---|
| Right-to-advice of independent blood testing | Officers failed to advise Sosa of right to independent blood test; suppression required | Statute (as amended 2013) requires advisement only for breath tests; no statutory or constitutional right to advisement for blood draws | No suppression; no right to on‑scene advisement for blood under the statute or constitution |
| Equal protection — parity with breath testing | Sosa: treating blood-tested persons differently from breath-tested persons violates equal protection | Breath and blood testing are not similarly situated (procedural, evidentiary, and practical differences) | No equal protection violation; different treatment justified |
| Ineffective assistance — PBT refusal/Frye hearing | Counsel should have objected to admission of PBT refusal absent Frye reliability hearing | No PBT was performed; admission of refusal is permitted under implied consent; no reliability inquiry required | No deficient performance; no relief |
| Ineffective assistance — failure to request WPIC 92.16 | Counsel erred by not requesting an instruction on test accuracy/reliability | Jury was aware of accuracy/reliability issues from cross and instructions; no prejudice | Even if omission deficient, no prejudice; claim fails |
| Prosecutorial misconduct (appeal to sympathy) | Prosecutor’s closing improperly invited sympathy for victim/family and future-danger speculation | Comment about severity of injuries was proper given vehicular assault elements requiring substantial bodily harm | Comments not improper given the evidence; no relief |
| Sentencing — DUI fine | DUI fine imposed although conviction was vehicular assault, not DUI | No statutory basis to impose RCW 46.61.5055 DUI fine for a chapter 9A class B felony conviction | DUI fine reversed and remanded to strike (sentence otherwise affirmed) |
Key Cases Cited
- State v. Turpin, 94 Wn.2d 820 (statutory advisement historically required for independent testing)
- State v. McNichols, 128 Wn.2d 242 (implied-consent jurisprudence grounded in statute)
- State v. Morales, 173 Wn.2d 560 (statutory basis for implied-consent rules)
- Missouri v. McNeely, 133 S. Ct. 1552 (warrant required for nonconsensual blood draws absent exigency)
- State v. Baird, 187 Wn.2d 210 (PBT/refusal and implied-consent framework)
- California v. Trombetta, 467 U.S. 479 (preservation and retestability considerations for evidence)