City of Seattle v. Sage, 2284--
| Decision Date | 24 June 1974 |
| Docket Number | No. 2284--,2284-- |
| Citation | 11 Wn.App. 481,523 P.2d 942 |
| Parties | The CITY OF SEATTLE, Appellant, v. Noel Blaine SAGE, Jr., Respondent. i. |
| Court | Washington Court of Appeals |
John P. Harris, Corp. Counsel, James G. Blair, Asst. Corp. Counsel, Seattle, for appellant.
John R. Simmons, Seattle, for respondent.
The defendant was charged with negligent driving and driving while under the influence of intoxicating liquor in violation of a city ordinance. He was convicted of both offenses in the Seattle Municipal Court and appealed to Superior Court where the matter came on for a de nove hearing on February 7, 1973. The trial court dismissed the charges on a pretrial motion on three grounds: (1) the complaint was defective in that it was not signed as required by the citing officer; (2) there had not been a valid arrest; and (3) the defendant was not advised of his statutory rights before submitting to the breathalyzer. The city has appealed the dismissal of the charges.
The defendant moved this court to dismiss the appeal under CAROA 51 claiming that the notice of appeal was not served or filed within the time limited by rule. CAROA 46 requires that a written notice of appeal be filed with the clerk of the court within 30 days after entry of the order from which an appeal is taken. The trial court's dismissal of the charges was granted following a hearing on the motion to dismiss as reflected in the minute entry of the court. On the 21st of February, 1973, an 'Order of Dismissal and Exoneration of Bond' was signed by the trial court. The order, entered ex parte without notice to the city, recited that the complaint was dismissed and ordered the clerk to return the $250 appeal bond to the defendant. On May 2, 1973, the city gave notice of appeal which was filed on May 3, 1973 and thereafter served. CR 54(e) provides that the attorney of record for the prevailing party shall prepare and present a proposed form of order or judgment not later than 15 days after the entry of the decision. Under CR 54(f)(2), no order or judgment shall be signed or entered until opposing counsel has been given 5 days notice of presentation and served with a copy of the proposed order or judgment except in certain circumstances inapplicable here. The effect of the failure to comply with the notice requirement of CR 54(f) is to void the entry of the judgment and make the action of the trial court ineffectual. Under these circumstances, we deny the motion to dismiss the appeal and review the contentions raised by the city so that the parties will not be put to the useless acts of resubmitting an oeder of dismissal and reperfecting an appeal to attain again the present posture of the proceedings.
The record provides little insight into the facts surrounding the alleged violation since the case was dismissed prior to trial. The prosecution arose out of a traffic accident in which the defendant was injured. The city called a Seattle Police officer who testified that he arrived at the scene of the accident shortly after it had happened. This officer further testified that the defendant was one of three injured people at the accident and that his first action was to call for aid cars and ambulances. He then testified:
A . . . and after I'd talked, or bent over Mr. Sage; and I could smell alcohol on his breath at the time; and it was my opinion at this time that this was a possible cause; and at this point I felt that he was, should be placed under arrest for being intoxicated in public. And subject to further tests, a possible charge of driving while intoxicated. Q Did you place him under arrest for this? A Yes, I did. Q Did you fully advise him of all his rights at this time? A The man was not conscious. At this point I advised the driver of the aid vehicle that the man was under arrest, and he was to remain at the hospital until our arrival, and to notify hospital personnel.
On cross-examination, this officer further testified:
Q (Defense Counsel) You didn't place him under arrest? A He didn't respond. Q You didn't see any offense committed by this man? A He was drunk, in my opinion. Q What did he do to show you he was drunk? A I felt he was intoxicated. This was the feeling I had because of the strong odor of alcohol on his breath. I had to bend over the man to see if he was breathing. Q What offense did he commit in your presence? A Public intoxication. Q He was drunk in public? A Yes, sir. Q And on the basis of what facts? Just the smell of this man? The odor of alcohol? You concluded that he was drunk in public? A It was my opinion that he was. Q That you placed him under arrest for drunk in public? A Yes, sir. Q How did you place him under arrest? A Well, I didn't place handcuffs on him, if this is what you mean. I advised the aid car that he was in our custody, and was to be detained at the hospital, and police hold put on him until our arrival. In this case, because of the accident, of the injuries, he wouldn't be leaving the hospital prior to our arrival. We were minutes out of the arrival.
During the hearing on the pretrial motion, the city also called an officer who testified that he did not arrest the defendant following the accident because the defendant was asleep in the hospital when he saw him.
The citation delivered to the defendant was considered defective by the trial court for lack of an actual handwritten signature. In the blank marked 'officers' on the Washington Uniform Traffic Complaint and Citation form, there appeared 'Det. J. M. Ragsdale' in typewritten letters. The defendant...
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State v. Byers, 43491
...Jackson v. United States, 408 F.2d 1165, 1169 (8th Cir. 1969); State v. Sullivan, 65 Wash.2d 47, 395 P.2d 745 (1964); Seattle v. Sage, 11 Wash.App. 481, 523 P.2d 942 (1974). Even if it were shown that Sergeant Franklin's statements to appellants were couched in terms amounting to a 'request......
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...Jackson v. United States, 408 F.2d 1165, 1169 (8th Cir. 1969); State v. Sullivan, 65 Wash.2d 47, 395 P.2d 745 (1964); Seattle v. Sage, 11 Wash.App. 481, 523 P.2d 942 (1974). Even if it were shown that Sergeant Franklin's statements to appellants were couched in terms amounting to a 'request......
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Survey of Washington Search and Seizure Law: 1988 Update
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