City of Seattle v. Levesque

• Citation: 12 Wash.App.2d 687,460 P.3d 205
• Decision Date: 16 March 2020
• Docket Number: No. 78304-1-I,78304-1-I
• Court: Court of Appeals of Washington
• Parties: CITY OF SEATTLE, Appellant, v. Jeffrey LEVESQUE, Respondent.

12 Wash.App.2d 687

460 P.3d 205

CITY OF SEATTLE, Appellant,

v.Jeffrey LEVESQUE, Respondent.

No. 78304-1-I

Court of Appeals of Washington, Division 1.

FILED: March 16, 2020

Miriam Elizabeth Norman, City of Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, 98104-7095, for Petitioner(s).

Whitney Haven Sichel, King County Department of Public Defense, 710 2nd Ave. Ste. 700, Seattle, WA, 98104-1724, for Respondent(s).

PUBLISHED OPINION

Smith, J. ¶1 This case arises from Jeffrey Levesque’s appeal of his conviction for driving under the influence (DUI). During trial in Seattle Municipal Court, Officer Calvin Hinson testified that when he arrested Levesque, Levesque showed signs and symptoms consistent with having consumed a central nervous system (CNS) stimulant and was "definitely impaired." Following his conviction, Levesque appealed to the superior court, which reversed. The city of Seattle (City) appeals the superior court’s decision.

¶2 We conclude that because Officer Hinson was not a drug recognition expert (DRE) and lacked otherwise sufficient training and experience, he was not qualified to opine that Levesque showed signs and symptoms consistent with having consumed a particular category of drug. Furthermore, because his opinion that Levesque was "definitely impaired" constituted an impermissible opinion of Levesque’s guilt, the trial court’s admission of that testimony violated Levesque’s constitutional right to have the jury determine an ultimate issue. Finally, because Levesque presented an alternative theory for his behavior, the City did not establish beyond a reasonable doubt that any reasonable jury would have convicted Levesque. Therefore, we affirm the superior court’s reversal of Levesque’s conviction.

FACTS

¶3 On April 29, 2015, the Seattle Police Department dispatched Officers Calvin Hinson and Sarah Coe to the scene of an automobile accident involving two vehicles. Levesque had failed to stop his vehicle prior to hitting the vehicle in front of him. The accident caused moderate to severe damage, and Levesque’s vehicle could not be driven.

¶4 Officer Hinson placed Levesque under arrest for DUI. Officer Hinson later testified that he found probable cause to make the arrest based on

the manifest driving[,] which [included] the accident while not being able to remember how the accident was caused[; t]he signs and symptoms of possible impairment of under a stimulant which included the perspiring while standing outside of the vehicle on the West Seattle Bridge while it was chilly outside and windy; the inability to recollect the events; and just the overall scene; and the conversation that we had ... and his mannerisms and his actions.

Although Officer Hinson had received training in field sobriety tests (FSTs), he did not perform any FSTs at the scene because of Levesque’s symptoms, the absence of any alcohol smell, and the location of the accident and corresponding impracticability of FSTs. Officer Hinson did not perform a horizontal gaze nystagmus

(HGN) test for signs of impairment. Officer Hinson, who is not DRE certified, testified that he attempted to contact a DRE by radio, but no DRE was available.¹

¶5 After arresting Levesque, Officer Hinson transported Levesque to Harborview Medical Center, where he had his blood drawn. The drug analysis results showed that Levesque’s blood contained 0.14 milligrams per liter (mg/L) of amphetamine

and 0.55 mg/L of methamphetamine. The City charged Levesque with DUI.

¶6 Before trial, Levesque moved in limine to, among other things, (1) limit officer testimony to personal observations and (2) exclude any testifying officer’s opinion on ultimate issues. The trial court granted the first motion. The trial court also granted the second motion but ruled that an officer could state "in his opinion, based upon the totality of the circumstances, that [Levesque] was impaired." The trial court also granted Levesque’s additional motion to exclude officers as experts but declared that an officer—testifying as a lay witness—could "certainly testify to what he [or she] objectively observed during the investigation."

¶7 At trial, the City played clips of the dashboard videotape from the incident. Additionally, Officer Hinson testified that he approached Levesque at the scene and asked him what happened. Levesque responded that he remembered driving but that "nothing really happened" and that he could not remember the accident. Because Levesque did not have his driver’s license, Officer Hinson asked Levesque for his address or the last four digits of his social security number to verify his identity. Levesque had difficulty responding and answered inappropriately by stating his birth date many times.

¶8 Officer Hinson testified that "through [his] training [and] experience" Levesque showed "signs as possibly being impaired by a stimulant." When asked to opine as to whether Levesque "was impaired by drugs," Officer Hinson testified that his "[o]pinion was that [Levesque] was definitely impaired at the time of the accident." Officer Coe testified that Levesque was "very shaky ... [and] also very sweaty" and that "[s]weating is indicative of an upper involved in the system." Levesque objected to Officer Hinson’s testimony—but not Officer Coe’s—and requested a mistrial outside the presence of the jury following a lunch recess. The court overruled Levesque’s objections.

¶9 The City also presented testimony from Captain Tracy Franks of the Seattle Fire Department and forensic scientist Andrew Gingras. Captain Franks testified that at the scene of the accident, she determined that Levesque’s heart rate and blood pressure were slightly elevated but that Levesque’s "pupils were mid, equal, and reactive to light." However, Captain Franks also testified that the conversation she had with Levesque "was erratic, [and] he didn’t make sense." Captain Franks’ report from the scene of the accident stated that Levesque "show[ed] behavior consistent with recreational drug use: Short attention span, having to ask questions multiple times, unable to open door without assistance, patient denies being in an accident."

¶10 Gingras testified regarding how methamphetamine can impact someone’s driving abilities and that "while using methamphetamine ..., driving tends to be a little faster, so speeding is usually seen, and then excessive lane travel." Gingras also testified regarding the "typical therapeutic range" for methamphetamine levels in the blood and how an individual would react to methamphetamine consumption if prescribed it. Gingras testified, however, that whether a specific level of methamphetamine in the blood impairs an individual’s ability to drive "depends on that individual" and agreed that "blood tests ... [are] insufficient to establish whether someone is impaired or not."

¶11 Levesque’s defense theory was that he was prescribed medication for injuries which explain his behavior. In support of this defense, Levesque presented testimony from his physician, Dr. Katherine Mayer, about treatment and prescriptions that she provided for Levesque prior to the accident, her diagnoses, and Levesque’s symptoms.

¶12 The jury convicted Levesque of driving while under the influence. Levesque appealed his conviction to the superior court, which reversed based on the admission of Officer Hinson and Officer Coe’s testimonies. The superior court determined that "[b]ecause neither testifying officer was a qualified [DRE] and the required 12-step DRE protocol was not performed, the foundation for this testimony was insufficient pursuant to State v. Baity, 140 Wn.2d 1 (2000)." The court also held that the errors were preserved for appeal through "litigat[ion] in pretrial motions and midtrial," and that the trial court’s error admitting the testimony "was not harmless." The City appealed, and we granted discretionary review.

ANALYSIS

¶13 The City contends that Officer Hinson’s and Officer Coe’s testimonies were admissible, and thus, the superior court erred by reversing Levesque’s conviction. We disagree.

Specifically, reversal was proper based on the erroneous admission of Officer Hinson’s testimony.

Preservation of Issues for Appeal

¶14 As an initial matter, the City claims that Levesque failed to preserve his challenges to the testimony from Officer Hinson and Officer Coe. We conclude that Levesque failed to preserve his challenge to Officer Coe’s testimony but did preserve his challenge to Officer Hinson’s testimony.

¶15 "The appellate court may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a). Under ER 103(a)(1), when an error is raised based on admitting evidence, the adverse party must make "a timely objection or motion to strike ... [and] stat[e] the specific ground of objection, if the specific ground was not apparent from the context." The purpose of these requirements is to " ‘encourage[ ] parties to make timely objections[ and] give[ ] the trial judge an opportunity to address an issue before it becomes an error on appeal.’ " Wilcox v. Basehore, 187 Wash.2d 772, 788, 389 P.3d 531 (2017) (quoting State v. Kalebaugh, 183 Wash.2d 578, 583, 355 P.3d 253 (2015) ).

¶16 Here, Levesque’s objections to Officer Hinson’s testimony were both timely and specific. The objections were timely because—contrary to the City’s contention that Levesque simply "bet on the verdict"² —Levesque objected at one of the earliest opportunities outside of the jury, i.e., at the next recess. And the objections were specific because Levesque provided the trial court with the grounds for his objection. Levesque asserted that (1) "Officer Hinson did not make the adequate foundation to testify to Mr. Levesque being impaired by a drug, when he did not conduct any DRE examination [and a] DRE wasn’t called," (2) Officer Hinson’s testimony violated the trial court’s ruling in limine by stating that Levesque was impaired or under the influence, and (3) the testimony went to the...