THE STATE OF WASHINGTON, Respondent, v. MICHAEL WALTER SCHULZE, Appellant.
No. 55470-6
En Banc.
January 10, 1991.
116 Wn.2d 154
RECONSIDERATION DENIED JULY 15, 1991.
David H. Bruneau, Prosecuting Attorney, and James R. Hickman, Deputy, for respondent.
DORE, J.—Michael Walter Schulze appeals his conviction on one count of vehicular homicide.1 We affirm.
ISSUES
Schulze raises several issues regarding the blood test mandated by
FACTS
On August 15, 1987, approximately 1 mile north of Forks, Schulze‘s vehicle crossed the center line of Highway 101 and collided with a pickup truck driven by Gordon Kopseng. The collision occurred sometime between 9:30 and 9:50 p.m. Mr. Kopseng died at the scene of the collision. There were no witnesses to the collision other than Schulze‘s passengers: his girl friend, Allison Black, and his son, Matthew Schulze.
The Forks Police Department received a call about the collision at approximately 9:51 p.m. Officers Vern Johnson
Sergeant Rice transported Schulze to Forks Community Hospital to be examined. In the emergency room waiting area, at 11:14 p.m., Rice read Schulze his Miranda rights. Troopers Richard Helpenstell and Willie Johnson of the Washington State Patrol arrived at the hospital, and Trooper Helpenstell again read Schulze his Miranda rights at 11:20 p.m. It was not until 11:23 p.m. that Schulze was formally placed under arrest for vehicular homicide by Trooper Helpenstell.
Following the arrest, Trooper Helpenstell gave Schulze the “special evidence warning,” which informed Schulze a blood test could be taken without his consent and he had the right to additional tests at his choice and expense. Schulze refused to sign the acknowledgment of the special evidence warning and refused to consent to the blood test. Schulze stated, “‘I don‘t think that‘s right. I want my lawyer from Seattle.‘” Report of Proceedings, at 73, 74 (Jan. 26, 1988). Schulze was defiant about refusing to allow the officers to take his blood. The blood draw was made at approximately 11:45 p.m., without Schulze‘s consent, but without physical resistance.
Schulze was taken to the Forks Police Department at approximately 1 a.m and was allowed to contact his attorney. The blood sample taken from Schulze was analyzed and found to contain .05 percent blood alcohol. The sample also contained diazepam, the active ingredient of valium, in the quantity of 1.23 milligrams per liter and nordiazepam, the metabolite of diazepam, in the quantity of .52 milligrams per liter.
Several witnesses to Schulze‘s behavior at the scene of the collision testified at his trial that Schulze had appeared
Members of the Anderson family, who live near the scene of the collision, arrived at the scene after hearing the crash. Mr. Anderson testified that, although Schulze “didn‘t seem slopping drunk“, he did seem “spaced out.” Report of Proceedings, at 138-55. Mrs. Anderson testified she believed Schulze was intoxicated or on drugs.
John Anderson knew Schulze throughout their school years. He denied to Trooper Sue that Schulze was drunk at the scene. Another friend of Schulze, Tammi Scott, who was present at the hospital, testified that Schulze was not falling down or sloppy drunk. Schulze claimed he was not drunk but had fallen asleep or passed out at the wheel.
Some significant facts of this case deserve special attention. Schulze was not formally arrested until he was at the hospital at 11:23 p.m., approximately 1 1/2 hours after the collision. He had been at the scene of the collision for at least 1 hour. During this time he was conscious, not under arrest, and had his girl friend, his son, and a school friend with him. He and his friends had full access to both vehicles and the ability to investigate the gouge marks left in the road or any other relevant evidence. However, he did not attempt to gather exculpatory evidence on his own nor did he call an attorney to come to the scene to conduct an investigation.
Before his formal arrest, Schulze was read his Miranda rights and, at that time, waived his right to an attorney by not requesting one. It was not until the second time he was
Schulze was convicted by a jury of one count of vehicular homicide on July 22, 1988, and he now appeals this conviction.
STATUTORY FRAMEWORK
Several statutes are relevant to Schulze‘s appeal. The first is the vehicular homicide statute,
When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person [1] while under the influence of intoxicating liquor or any drug, as defined by
RCW 46.61.502 , or [2] by the operation of any vehicle in a reckless manner or [3] with disregard for the safety of others . . .
(1) The person has 0.10 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of the person‘s breath made under
RCW 46.61.506 ; or
(2) The person has 0.10 percent or more by weight of alcohol in the person‘s blood as shown by analysis of the person‘s blood made underRCW 46.61.506 ; or
(3) The person is under the influence of or affected by intoxicating liquor or any drug; or
(4) The person is under the combined influence of or affected by intoxicating liquor and any drug.
(1) Any person who operates a motor vehicle within this state is deemed to have given consent, . . . to a test or tests of his or her breath or blood for the purpose of determining the alcoholic content of his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor.
. . .
(2) . . . The officer shall inform the person of his or her right to refuse the breath or blood test, and of his or her right to have additional tests administered by any qualified person ofhis or her choosing as provided in RCW 46.61.506 . The officer shall warn the driver that (a) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test, and (b) that his or her refusal to take the test may be used in a criminal trial.
(3) Except as provided in this section, the test administered shall be of the breath only. If an individual . . . is under arrest for the crime of vehicular homicide . . . a breath or blood test may be administered without the consent of the individual so arrested.
Finally,
ANALYSIS
I
Schulze‘s first assignments of error relate to his right to counsel under
This court‘s opinion in State v. Judge, 100 Wn.2d 706, 714-15, 675 P.2d 219 (1984) is particularly relevant here. In Judge, we held that a driver suspected of vehicular homicide has no right to counsel based on the sixth amendment to the United States Constitution before submitting to a mandatory blood test. 100 Wn.2d at 714-15. A Sixth Amendment right to counsel attaches only at a “critical stage” in a criminal prosecution. No critical stage arises prior to the initiation of formal judicial proceedings by citation or indictment. Judge, 100 Wn.2d at 714 (citing Kirby v. Illinois, 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972)).
We noted in Judge, 100 Wn.2d at 715, that the rationale of the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966) strengthened our holding. In Schmerber an accident victim‘s attorney advised him not to submit to a blood test after an officer arrested him for driving while intoxicated. The suspect claimed he was denied his right to counsel when he was not allowed to follow the attorney‘s advice. The Supreme Court disagreed: because the suspect had no right not to submit to the test regardless of his attorney‘s advice, he was not denied his right to counsel. 384 U.S. at 765-66. This rationale is equally applicable here because, as was true in Schmerber, Schulze had no right not to submit to the blood test.
The Schmerber and Judge cases require a holding in this case that Schulze‘s blood test results were not inadmissible because he did not have his attorney present during the blood draw. Even though Schmerber and Judge dealt only with the Sixth Amendment, we hold that Washington
Nevertheless, Schulze contends the blood test results should have been suppressed because his
This fact does not change our conclusion. The remedy Schulze seeks for the alleged violation of his court rule right to counsel is either dismissal of the charges against him or suppression of his blood test results. Even assuming arguendo that Schulze‘s court rule right to counsel was violated, neither remedy is warranted. We held in the recent case of Spokane v. Kruger, 116 Wn.2d 135, 803 P.2d 305 (1991) that suppression of evidence, rather than dismissal of charges, is the proper remedy for a violation of a defendant‘s court rule right to counsel. Kruger, at 144-45 (overruling State v. Fitzsimmons, 93 Wn.2d 436, 610 P.2d 893, 18 A.L.R.4th 690, vacated and remanded, 449 U.S. 977, 66 L. Ed. 2d 240, 101 S. Ct. 390, aff‘d on remand, 94 Wn.2d 858, 620 P.2d 999 (1980)). However, suppression is only warranted where, as was the case in Kruger, the evidence to be suppressed has been tainted by the violation. Schulze‘s blood test results were not tainted.
In Kruger, the defendant was arrested for driving while under the influence after a police officer noticed his car swerving and pulled him over. The officer observed that Kruger‘s eyes were bloodshot and watery, his speech was slurred, and his breath smelled of intoxicants. Kruger, at 136. After making these and other observations, the officer placed Kruger under arrest. The officer found open containers of beer and some marijuana in Kruger‘s car. Kruger was then taken to the county jail, where he was booked for driving under the influence of alcohol or drugs, resisting arrest, and possession of a controlled substance.
We held that the proper remedy for the violation of Kruger‘s court rule right to counsel was suppression of the evidence which was tainted by the violation. Kruger, at 146. In so holding, we overruled Fitzsimmons’ holding that such a violation requires dismissal of charges because of the inevitable and irreparable prejudice that occurs with a violation of one‘s right to counsel. Fitzsimmons, at 451. We stated:
It is simply not true that irreparable prejudice must inevitably flow from a denial of counsel. As the dissent in [Tacoma v.] Heater, [67 Wn.2d 733, 409 P.2d 867 (1966)] pointed out, denying a defendant immediate access to counsel does not mean that any and all exculpatory evidence is forever lost. Witnesses who observed the defendant‘s behavior prior to, and possibly during, the events leading up to the arrest can be called to testify. While there will not always be disinterested witnesses available, the same can be said for many circumstances where criminal charges are brought. Moreover, in those cases where prejudice does result from the violation of an accused‘s right to counsel, suppression of the tainted evidence will protect the rights of the accused to a fair trial.
Kruger, at 145.
The evidence tainted by the violation of Kruger‘s right to counsel was thus excluded. This included primarily his refusal to take the Breathalyzer test, Kruger, at 138, but did not include the evidence gathered by the officer before the violation. That evidence was admissible because it was not tainted. Assuming for argument‘s sake that Schulze‘s right to counsel was violated, he was also entitled to have the evidence tainted by the violation excluded at trial.
The instant case is very different from Kruger because Kruger was accused of driving while under the influence, while Schulze was accused of a much more serious offense, vehicular homicide. A person accused of driving while under the influence has the option to submit or not to a breath or blood test. Thus, had Kruger been permitted to contact his attorney, the attorney could have advised him whether his best course of action would have been to take the breath test, or to refuse the test and have the evidence of his refusal used against him at trial. By being denied his right to counsel, Kruger was denied what could have been very helpful advice.
In contrast, a person accused of vehicular homicide, as was Schulze, does not have the option of refusing to submit to a blood test. Because of the seriousness of the offense, the Legislature has mandated that vehicular homicide suspects submit to a blood test regardless of consent.
In sum, we hold that neither
II
Schulze next argues the trial court committed reversible error in refusing to suppress the blood drug test results because
Schulze is correct that
III
Next, Schulze contends the “special evidence warning” given to him requires suppression of his blood evidence. We disagree.
Before a person arrested for vehicular homicide may be forced to submit to the blood test mandated by
In this case, Trooper Helpenstell informed Schulze of his right to have additional tests performed. Trooper Helpenstell also informed Schulze his blood could be tested for drugs as well as alcohol and that any additional tests must be performed at Schulze‘s expense. Schulze contends the
The effect of the “at your own expense” language of the special evidence warning was specifically considered by this court in State v. Bartels, 112 Wn.2d 882, 774 P.2d 1183 (1989) and Gonzales v. Department of Licensing, 112 Wn.2d 890, 774 P.2d 1187 (1989). We determined that the words “‘at your own expense‘” should not be included in the special evidence warning, 112 Wn.2d at 889; however, we refused to require suppression absent a finding of prejudice to a defendant, at least in cases where the warnings were given prior to this court‘s opinion in Bartels, i.e., June 1989.
The warning in this case was given in 1987. Schulze has failed to demonstrate that he was prejudiced by Trooper Helpenstell‘s use of the “at your own expense” language. Schulze makes no claim of indigency and, in fact, Schulze retained his own counsel at trial and on this appeal. The test results will not be suppressed because of the use of the words “at your own expense” in the special evidence warning.
Schulze also objects to the statement by Trooper Helpenstell that Schulze‘s blood could be tested for drugs as well as alcohol. Because we have determined Schulze‘s blood was properly tested for drugs, this statement was proper.
IV
Schulze contends the state toxicologist failed to comply with his statutory duty to approve methods for blood alcohol testing under
As a factual matter, it is uncontested that the blood test in this case was conducted according to methods approved by the state toxicologist and gave a scientifically valid result. However, Schulze contends that
Analysis of the person‘s blood or breath to be considered valid under the provisions of this section or
RCW 46.61.502 or46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose. The state toxicologist is directed to approve satisfactory techniques or methods. . .
To implement
Our review of the adequacy of the state toxicologist‘s regulations is governed by the arbitrary and capricious standard. See State v. Ford, 110 Wn.2d 827, 832, 755 P.2d 806 (1988). As the State noted at oral argument, a “cookbook” detailing every step of the authorized procedure is not necessary. We are satisfied that the regulations set forth in
V
Finally, Schulze assigns error to the trial judge‘s failure to give a number of Schulze‘s proposed jury instructions. Jury instructions must be considered in their entirety to determine if there is reversible error in a specific instruction. Caruso v. Local Union 690 of Int‘l Bhd. of Teamsters, 107 Wn.2d 524, 533, 730 P.2d 1299, cert. denied, 484 U.S. 815 (1987). The instructions given by the trial judge in this case, when viewed as a whole, were adequate to explain the law and to enable the parties to argue their theories of the case. See State v. Rice, 110 Wn.2d 577, 603, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989). Schulze was not entitled to the more specific jury instructions he requested. Schulze raises several other issues which we find to be without merit.
CONCLUSION
Approximately an hour and a half after the vehicular homicide, the defendant was taken to the Forks Community Hospital and placed under arrest. At 11:14 p.m., Sergeant Rice read Schulze his Miranda rights, including the right to have an attorney. The defendant made no request for an attorney at that time and waived his rights to have an attorney called. Nine minutes later, at 11:23 p.m., two patrolmen brought in the equipment to take defendant‘s blood sample, and defendant was again read his Miranda rights. The defendant objected and asked the police to secure his Seattle attorney for advice prior to the test being taken.
The sole issue here is whether the blood test results should be suppressed.
We deny defendant‘s motion for suppression as
(3) Except as provided in this section, the test administered shall be of the breath only. If an individual . . . is under arrest for the crime of vehicular homicide . . . a breath or blood test may be administered without the consent of the individual so arrested.
Affirmed.
CALLOW, C.J., and BRACHTENBACH, DOLLIVER, DURHAM, and Guy, JJ., concur.
ANDERSEN, J., concurs in the result.
We have consistently held that, under our court rules, the right to counsel for an alcohol related offense attaches at the moment of arrest. Tacoma v. Heater, 67 Wn.2d 733, 409 P.2d 867 (1966); State v. Fitzsimmons, 93 Wn.2d 436, 610 P.2d 893, 18 A.L.R.4th 690, vacated and remanded, 449 U.S. 977, 66 L. Ed. 2d 240, 101 S. Ct. 390, aff‘d on remand, 94 Wn.2d 858, 620 P.2d 999 (1980); State ex rel. Juckett v. Evergreen Dist. Court, 100 Wn.2d 824, 675 P.2d 599 (1984) (Dore, J., writing for a unanimous court); State v. Staeheli, 102 Wn.2d 305, 685 P.2d 591 (1984).3 We unanimously reaffirmed this holding in a case decided this term. Spokane v. Kruger, 116 Wn.2d 135, 803 P.2d 305 (1991).4 The majority fails to account for much of this precedent. Instead, it silently overrules at least three decisions of this court.
The majority relies on precedent holding that the Sixth Amendment does not require recognition of the right to counsel upon arrest. State v. Judge, 100 Wn.2d 706, 714, 675 P.2d 219 (1984). Such reliance ignores our holding in
The majority, relying on Judge and Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966), finds that Schulze‘s right to counsel pursuant to
We followed the reasoning of Heater in State v. Turpin, 94 Wn.2d 820, 620 P.2d 990 (1980). In Turpin, we held that the State has a statutory duty to notify a person accused of vehicular homicide that he has a right to an independent blood test. In so doing we pointed out that “[i]t is in just such cases that the need to protect the defendant‘s right to proof is most important.” 94 Wn.2d at 826. We went on to suppress the results of the blood test because the defendant had no opportunity to procure his own test.
The majority acknowledges that the right to counsel under
The majority further distinguishes this case from Kruger based on the nature of the crimes charged. Majority, at 164. The majority states that because the blood test is mandatory in a vehicular homicide case, Schulze‘s right to counsel was not affected. This ignores our holding in Turpin. In Turpin, we held that an accused must be apprised of the right to independent testing regardless of the fact that he has no right to refuse the mandatory blood test. 94 Wn.2d at 826. Similarly, an accused must be provided access to counsel prior to the mandatory blood test, regardless of the fact that he cannot refuse the test. As Heater and Turpin make clear, the accused needs access to counsel in order to protect his right to gather potentially exculpatory evidence. Providing access to counsel does not interfere with, and is not inconsistent with, mandatory testing.
The majority states that
In addition, the majority states that Schulze waived his right to counsel by keeping silent when his rights were first
Schulze‘s rights were read to him at 11:14 p.m. and again at 11:23 p.m. It was during this time period that he was informed of the blood test, and it was upon learning of the test that he requested he be allowed to speak to his attorney. An intelligent waiver may not be presumed from the fact that Schulze was silent for a few minutes. The majority is mistaken in saying that Schulze waived his right to counsel.
In short, the majority silently overrules many of our major decisions governing the right to counsel for alcohol related offenses. It also endangers precedent governing our authority to promulgate and interpret court rules. Schulze had the right to call his attorney before the blood test was taken. We must reverse and provide the remedy dictated by the majority decision filed this year in Kruger.
SMITH, J., concurs with UTTER, J.
Reconsideration denied July 15, 1991.
Notes
“(1) When a person is taken into custody that person shall immediately be advised of the right to counsel. . . .
“(2) At the earliest opportunity a person in custody who desires counsel shall be provided access to a telephone, the telephone number of the public defender or official responsible for assigning counsel, and any other means necessary to place the person in communication with a lawyer.”
“In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel . . . .”
Because Schulze‘s rights under the court rule were violated, we have no occasion to address the question of whether Schulze‘s rights are of state constitutional dimension. The majority argues that there is no state constitutional right to counsel upon arrest in a case such as this and cites to HeaterHeater holds, in drunk driving cases, arrest is a “critical stage“. See majority, at 161-62; Heater, 67 Wn.2d at 739-40.