312 P.3d 774
Wash. Ct. App.2013Background
- Defendant Mashek was charged with felony DUI under RCW 46.61.502(6) after a 1994 vehicular assault DUI conviction; deputy observed Mashek driving erratically and smelling intoxicants on Feb 6, 2011.
- Mashek consented to a breath test after signing Miranda rights and speaking with counsel; 15-minute pre-test observation involved the officer not always visual for 3 minutes.
- The 15-minute observation period required prima facie evidence that Mashek did not vomit, eat, drink, smoke, or have foreign substances in her mouth.
- Two breath tests yielded BACs of 0.118 and 0.116; the State sought felony DUI based on the 1994 conviction.
- The trial court granted suppression of the breath test results, dismissed the felony DUI charge, and barred a proposed drug-recognition expert from testifying on field sobriety tests.
- The State appeals raising: (a) improper suppression due to observation; (b) the 1994 conviction qualifies as a prior offense; (c) drug-recognition expert testimony admissibility; the Court reverses in part and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is continuous visual observation required for the 15-minute period? | Mashek argues 3 minutes of non-visual observation violated RCW 46.61.506(4)(a)(ii)-(iii). | Mashek contends the statute requires continuous visual observation. | No; observation may use all senses, not solely visual. |
| Does Mashek’s 1994 vehicular assault DUI conviction count as a prior offense for felony DUI? | State argues the 1994 conviction fits RCW 46.61.502(6). | Mashek contends amendments to the statute affect whether the conviction can count. | The 1994 conviction can count as a prior offense; dismissal reversed. |
| Was the trial court proper in excluding drug recognition expert testimony on field sobriety tests? | State argues ER 702 foundation issues were misapplied. | Mashek argues exclusion was correct due to lack of proper foundation. | The court did not abuse its discretion; the drug-recognition expert testimony was properly excluded. |
Key Cases Cited
- Walk v. Department of Licensing, 95 Wn. App. 653 (Wash. App. 1999) (observing officer need not visually watch entire period if communication suffices)
- Baity v. State, 140 Wn.2d 1 (Wash. 2000) (ER 702 foundation and admissibility of DRN testimony)
- Haddock v. State, 141 Wn.2d 103 (Wash. 2000) (statutory interpretation of breath test observation requirements)
- Armendariz v. Wash., 160 Wn.2d 106 (Wash. 2007) (statutory interpretation and plain meaning of terms)
- Haselwood v. Bremerton Ice Arena, 166 Wn.2d 489 (Wash. 2009) (plain-meaning approach to statutory terms and prima facie evidence)