130 Wash. 2d 215 | Wash. | 1996
— Rodger Smith almost ran into a state trooper head-on. The trooper detained him and he failed
Smith was convicted of DUI by a jury in Spokane County District Court. On appeal, he contends the DataMaster result is inadmissible as the "fruit of a poisonous tree,” the inadmissible PBT result. Moreover, he argues he was denied due process because the PBT result was not preserved, thereby denying him the opportunity to cross-examine the trooper on the PBT result. We affirm the Court of Appeals and uphold Smith’s DUI conviction.
ISSUES
1. Did the trial court err in denying Smith’s motion to suppress the DataMaster results?
2. Did the trial court err in precluding defense counsel from questioning Trooper Wiley about the PBT?
FACTS
On August 11, 1991, Trooper Richard A. Wiley was alone in his patrol car about 1:00 a.m. He was heading southbound on Monroe Road in Spokane when he observed a vehicle coming toward him veer over the center line into his lane. Trooper Wiley had to jerk his car to the right to avoid a collision. Trooper Wiley then made a U-turn and gave chase. The driver, Rodger Smith, stopped at a gas station. When Trooper Wiley approached Smith, he first noticed a "strong odor of intoxicants” on Smith’s breath. Clerk’s Papers at 105. When Smith began looking for his license, registration, and proof of insurance,
Trooper Wiley had Smith perform various field sobriety tests. Smith failed these tests, which included reciting the alphabet from a to z, walking a straight line, and standing on one leg with his arms at his sides while counting to 30 as fast as possible. Trooper Wiley concluded Smith was impaired.
Trooper Wiley then asked Smith to consent to a PBT, advising him the results were inadmissible in court. Smith consented to the test and Trooper Wiley administered it. Trooper Wiley obtained only a digital read-out on the PBT device. He preserved no written record of the result. Smith remembers seeing the result, but recalls only that an "8” was displayed. Trooper Wiley did not recall the PBT result at trial.
The trooper arrested Smith for DUI and transported him to the Public Safety Building. At the Public Safety Building, in answer to Trooper Wiley’s questions, Smith admitted he had been drinking bourbon in two different locations. The trooper advised Smith of his rights regarding the breathalyzer pursuant to the implied consent statute, RCW 46.20.308, and then administered a BAC Verifier DataMaster test to Smith, obtaining a reading of 0.12 grams of alcohol per 210 liters of breath.
Prior to his jury trial in the Spokane County District Court, Smith moved to suppress the results of the Data-Master test, claiming the PBT was an illegal search in violation of the implied consent law. The motion was denied.
At trial, Smith admitted to having three bourbon and Cokes and sips from a fourth at two different locations in Spokane and Coeur d’Alene over a period of approximately six hours. He had begun his evening’s entertainment after working a 12-hour day shift from 6:00 a.m. to 5:30 p.m. for
Fire Lieutenant Dave West, Smith’s companion that evening, testified on Smith’s behalf. At the time of his testimony, West was president of the Firefighters Union. He had known Smith for 17 to 18 years. West testified he picked Smith up at the Hedgehouse between 8:00 and 8:30 p.m., and drove him and West’s friend, Karen, to the Holiday Inn in Coeur d’Alene, arriving before 9:00 p.m. He said he himself had two to three drinks at the Holiday Inn, and that Smith’s consumption "wouldn’t have been a lot different than mine.” Clerk’s Papers at 182.
The jury found Smith guilty of driving while intoxicated. Smith was not sentenced, as he appealed before a sentencing hearing could occur. The court denied Smith’s motion for a new trial; Smith then filed a notice of appeal to Superior Court.
The Spokane County Superior Court issued a written opinion reversing the conviction and ordering a retrial because the district court prevented Smith from cross-examining the trooper on the PBT and the trooper gave an opinion on Smith’s intoxication, an ultimate issue to be decided by the jury.
The State then moved for discretionary review to the Court of Appeals, assigning error to both conclusions of the superior court, and Smith cross-appealed, assigning error to the trial court’s failure to suppress the results of the DataMaster test, the trial court’s ruling the PBT test
ANALYSIS
A. The Portable Breath Test
The present case is prompted largely by the decision of Trooper Wiley to use the PBT, a device counsel for the State referred to in oral argument as "experimental.” RCW 46.61.506(3) provides breath test results are valid only if administered in accordance with procedures adopted by the state toxicologist. That official has not approved the PBT for measuring alcohol in a person’s breath. WAC 448-13-020 (Supp. 1996) ("DataMaster is the only breath test instrument approved by the state toxicologist”).
Moreover, no hearing occurred on the scientific validity of portable breath testing equipment generally or on the particular equipment used in this case pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). State v. Cauthron, 120 Wn.2d 879, 886, 846 P.2d 502 (1993), reaffirmed the continued viability of the Frye test in Washington: "[E]vidence deriving from a scientific theory or principle is admissible only if that theory or principle has achieved general acceptance in the relevant scientific community.” Frye, 293 F. at 1014.
B. Motion to Suppress
Smith contends the trial court should have granted his pretrial motion to suppress the result of the DataMaster test, which indicated Smith had an alcohol/breath ratio of 0.12 grams of alcohol per 210 liters of breath, because the PBT he took was an illegal, warrantless search administered in violation of the implied consent statute.
Smith maintains the administration of the PBT was
Nor was the administration of the PBT unconstitutional. Because the performance of a field sobriety test is nontestimonial in nature, no Fifth Amendment protections attach. Heineman v. Whitman County Dist. Court, 105 Wn.2d 796, 801, 718 P.2d 789 (1986). Neither does Wash. Const, art. I, § 9, provide greater protection. Id.
In oral argument, counsel for the State suggested Trooper Wiley may have used the PBT result to decide whether he had probable cause to arrest Smith for DUI. Even if the PBT result had been improperly utilized to decide probable cause, the DataMaster results were not the fruit of the poisonous tree. Apart from the PBT result,
Because the PBT was neither unconstitutional nor illegal, the resulting DataMaster test was not inadmissible. The district court did not err in denying Smith’s motion to suppress the evidence from the DataMaster test.
C. Due Process
The district court ruled evidence of the administration and result of the PBT was inadmissible; the court also prohibited cross examination of Trooper Wiley concerning the PBT. The court said the PBT was not scientifically reliable enough to allow its admission for the State and would not allow the defendant to talk about it because the only possible exculpatory evidence from the PBT would
Smith invokes the Brady/ Wittenbarger rule and argues the State deprived him of due process in failing to preserve the PBT results: "To comport with due process, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense.” State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994) (citing Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)). But:
A showing that the evidence might have exonerated the defendant is not enough. In order to be considered "material exculpatory evidence,” the evidence must both possess an exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.
Wittenbarger, 124 Wn.2d at 475 (citing California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984)). Likewise, in State v. Copeland, 130 Wn.2d 244, 922 P.2d 1304 (1996), we held the failure of the State to preserve certain DNA materials for testing did not violate Brady/ Wittenbarger. We drew a careful distinction there between potentially useful evidence and material exculpatory evidence. In the absence of police bad faith, there is no denial of due process in failing to preserve the former.
Smith fails to demonstrate the result of the PBT met the Brady/ Wittenbarger test. First, Smith makes no argument of bad faith conduct by the Washington State Patrol in failing to preserve the PBT result. Even if the evidence was potentially useful to him, the failure to preserve it was not a violation of due process.
Second, the PBT result was not material. The PBT result was not admissible, as previously noted, and Smith did not make an offer of proof as to the reliability of the
Third, it is not at all clear the evidence from the PBT would have been exculpatory. Smith himself remembered Trooper Wiley showed him the results of the PBT only "real briefly,” and all he remembers "is something about an 8 being on there.” Clerk’s Papers at 81. In the face of Trooper Wiley’s testimony about Smith’s appearance and field sobriety test failures, combined with the 0.12 Data-Master reading, it is difficult to conclude the unpreserved PBT reading would have provided "material exculpatory evidence.”
Finally, Smith had other means of getting breath results reasonably available to him. Under RCW 46.20.308(2), he had a right to other breath tests. Smith was aware of this right, having signed a card from which Trooper Wiley read the statutory warnings. He declined, however, to avail himself of this right. Thus, Smith was not deprived of due process when the trial court ruled evidence of the PBT result inadmissible.
Smith also argues the trial court deprived him of due process when it would not allow him to argue Trooper Wiley’s memory was at issue when he could remember the details of Smith’s appearance and field
But based on this record, we are persuaded such error was harmless. An error is harmless if we are convinced beyond a reasonable doubt that any reasonable jury would have convicted Smith, despite the error. State v. Aumick, 126 Wn.2d 422, 430, 894 P.2d 1325 (1995); State v. Rice, 120 Wn.2d 549, 569, 844 P.2d 416 (1993). The evidence of Smith’s intoxication in the field overwhelmingly established probable cause to arrest Smith and give him the DataMaster test. Trooper Wiley observed Smith driving erratically. Smith did not deny he swerved over the center line; he testified he did so because of inattention. Smith exhibited several indicia of intoxication. Smith did not dispute Wiley’s testimony about the field sobriety test results. Trooper Wiley arrested Smith and took him to the police station, where Smith registered a 0.12 reading on the DataMaster. We are convinced beyond a reasonable doubt a jury would have convicted Smith despite any error in the cross examination of Wiley.
CONCLUSION
The use of the PBT by the State complicated an other
In this case, there was ample evidence apart from the PBT result to support probable cause to arrest Smith for DUI, and the BAC Verifier DataMaster results were therefore admissible. The district court did not deny due process to Smith in preventing testimony on the PBT result as it did not meet the Bradyl Wittenbarger test. The district court did abuse its discretion in limiting cross examination of Trooper Wiley on the PBT result for the limited purpose of testing his recollection, but the error was harmless on these facts.
Smith’s conviction for DUI is affirmed and the case is remanded to the Spokane County District Court for sentencing.
Durham, C.J., and Dolliver, Smith, Guy, Johnson, Madsen, Alexander, and Sanders, JJ., concur.
Smith raised the issue of Wiley’s testimony on his intoxication in the Court of Appeals, but Smith did not raise it in this Court and we do not address the issue. RAP 13.7(b).
Smith’s case was consolidated in the Court of Appeals with that of Gary Lewellyn, and the Court of Appeals’ decision was published under Lewellyn’s name. Lewellyn did not petition for review, and his case was mandated in July 1995.
RCW 46.20.308(2) provides, in pertinent part: "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 of his or her choosing as provided in ROW 46.61.506.”
The requirements of the implied consent statute may not come into play here. RCW 46.20.308 says a person is deemed to have consented to a breath or blood test for alcohol "if arrested.” The statute does not speak to situations in which no arrest has occurred. Trooper Wiley asked Smith to take the PBT before he arrested him.
"Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.”