City of Seattle v. Personeus
| Decision Date | 02 December 1991 |
| Docket Number | No. 28422-3-I,28422-3-I |
| Citation | 63 Wn.App. 461,819 P.2d 821 |
| Parties | CITY OF SEATTLE, Respondent, v. Bradford PERSONEUS, Petitioner. |
| Court | Washington Court of Appeals |
Howard K. Todd, Gaitan & Cusack, Seattle, for petitioner.
Margaret M. Boyle, Asst. City Atty., Seattle, for respondent.
Bradford Personeus has filed a motion to modify a commissioner's ruling denying discretionary review of a superior court decision affirming his conviction in Seattle Municipal Court of driving while intoxicated. We grant the motion to modify, grant discretionary review, accelerate review pursuant to RAP 18.12, and reverse.
The relevant facts are summarized in the commissioner's ruling:
In August, 1989, Personeus was stopped by Seattle Police Sergeant Howard Monta because he was driving slowly, with a perceptible weave, and without signaling his turns. Monta pulled in behind Personeus in a tavern parking lot and activated his emergency lights. Monta noted the odor of alcohol on Personeus' breath and that he had slurred speech. Monta is a supervisor with responsibility for other officers and did not want to process his stop of Personeus. He therefore called for another officer to administer field sobriety tests and told Personeus to wait. Personeus asked to leave the scene to walk to his home but Monta told him he could not.
The second officer arrived about 13 minutes later. During the interval, Personeus was neither advised of his right to a lawyer nor given an opportunity to contact one. The second officer had Personeus perform numerous coordination and agility tests.
In pretrial hearings, the Seattle Municipal Court ruled that Personeus had not been free to go from the moment Monta activated his emergency lights, that there was no reason for Monta to refrain from administering the field sobriety tests, and that the delay in administering the tests had been for the convenience of the police. Nevertheless, the court ruled that Personeus had no right to refuse to take the field sobriety tests and that the results of those tests were therefore admissible. Prior to trial, the trial judge suppressed the results of Personeus' breath alcohol test. 1 At trial, Personeus attempted to offer the testimony of a Dr. Hlastala, who would have testified regarding the burn-off rate of alcohol. The trial judge excluded this testimony on the ground that it was not relevant because the breath test had been suppressed and because the phenomenon of alcohol burn-off is within the common knowledge of most jurors.
The trial judge also denied Personeus' request that the jury be instructed that "under the influence of" and "affected by" alcohol have the same meaning. The jury returned a conviction.
On appeal, the superior court affirmed, holding as follows:
(1) The instructions, when taken as a whole, did not deprive the def. of a fair trial as they properly instructed the jury; (2) There is a sufficient basis in the record to support the finding that the trial court did not abuse its discretion when excluding the testimony of def.'s expert, nor did the exclusion abridge the def.'s right to present evidence; and (3) the def. did not have a right to an attorney prior to the request that he perform field sobriety tests (FST's), nor did the [def.] have a right to refuse such tests. That the def. was detained for 13 minutes prior to performing FST's does not change that finding: the def.'s right to an attorney did not accrue during the wait, under the criminal rule for courts of limited jurisdiction.
Commissioner's Ruling, at 2-3.
Personeus maintains that discretionary review is warranted on evidentiary, instructional, and constitutional grounds. 2 He first contends that the superior court erred in upholding the trial court's exclusion of the proposed testimony of Dr. Hlastala, an expert witness who was going to explain the "burn-off phenomenon" of alcohol. The trial court excluded the testimony, concluding that it would not be of assistance to the jury under the circumstances because the results of the breath test had been excluded and because the jury was capable of understanding the "burn-off phenomenon" without expert testimony.
Expert testimony is admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue ..." ER 702. The trial court has great discretion with respect to the admissibility of expert testimony; where the reasons for excluding or admitting expert testimony are "fairly debatable," the trial court's exercise of discretion will not be reversed on appeal. Group Health Cooperative v. Department of Revenue, 106 Wash.2d 391, 398, 722 P.2d 787 (1986) (quoting Walker v. Bangs, 92 Wash.2d 854, 601 P.2d 1279 (1979)). Expert testimony is unnecessary when "the issue involves a matter of common knowledge about which inexperienced persons are capable of forming a...
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