City of Vancouver v. Kaufman
| Decision Date | 15 October 2019 |
| Docket Number | No. 51202-5-II,51202-5-II |
| Citation | 450 P.3d 196 |
| Parties | CITY OF VANCOUVER, Respondent, v. Melissa Nicole KAUFMAN, Appellant. |
| Court | Washington Court of Appeals |
Sean M. Downs, Grecco Downs, PLLC, 500 W 8th St., Ste. 55, Vancouver, WA, 98660-3085, for Petitioner.
Nicholas Zurick Barnabas, City Attorney's Office, Po Box 1995, Vancouver, WA, 98668-1995, for Respondent.
PUBLISHED OPINION
¶ 1 Melissa Kaufman was granted discretionary review of her municipal court conviction for driving under the influence (DUI). She argues that the trial court erred by admitting evidence of her refusal to submit to a preliminary breath test (PBT) and improper opinion testimony by a police officer. We agree and hold that the trial court erred in admitting evidence of Kaufman’s refusal to submit to a PBT. We also accept the City of Vancouver’s concession that the trial court erred in admitting improper opinion testimony, but hold that the City cannot prove beyond a reasonable doubt that the error was harmless. Accordingly we reverse and remand for further proceedings.
¶ 2 At approximately 6:45 AM on March 11, 2016, Officer Keith Tyler of the Vancouver Police Department was patrolling within the city limits of Vancouver, Washington. Tyler observed Kaufman driving past his patrol car in an adjacent lane. Tyler visually approximated that Kaufman was driving between 25 and 28 miles per hour; the speed limit in that location was 20 miles per hour. Tyler turned his "warning" lights on, and Kaufman slowed her vehicle down. Tyler then observed Kaufman move her vehicle into a turn lane without using her turn signal for at least 100 feet before she made the turn. Tyler contacted Kaufman and asked for her license, registration, and proof of insurance. Tyler did not smell an odor of intoxicants on Kaufman at this time.
¶ 3 When Tyler ran the registration of Kaufman’s vehicle, he found that Kaufman had an outstanding misdemeanor warrant. Tyler returned to Kaufman’s vehicle and arrested her on the warrant. The first time Tyler noticed an odor of intoxicants on Kaufman was when he placed her in handcuffs. Kaufman was upset and crying at that point. Tyler also noticed that her eyes were "a little bloodshot" and her eyelids were "a little droopy." Clerk’s Papers (CP) at 214. Tyler decided he would begin a DUI investigation once they arrived at the jail.
¶ 4 At the jail, Tyler offered to administer a PBT, which is a test he uses "to establish probable cause." Id. at 215. Kaufman refused to take the test. Tyler then asked Kaufman if she would be willing to take a series of voluntary standardized field sobriety tests (FSTs), and she refused. Tyler read Kaufman her Miranda1 rights and prepared a "Pre-arrest Observations" report. CP at 220. Tyler reported that Kaufman’s eyes were "watery and bloodshot," her speech was a little slow but "fair," her face was "flushed," her coordination was "fair," she displayed mood swings, and her level of impairment was "slight." Id. at 220-21. Tyler then read Kaufman the implied consent warning for breath and asked Kaufman if she would submit to a Datamaster breath test. Kaufman refused.
¶ 5 The City charged Kaufman with DUI.2 Kaufman’s case proceeded to trial in Vancouver Municipal Court. Kaufman brought a pretrial motion to exclude evidence of her refusal to submit to the PBT and the FST but the court ruled this evidence was admissible.3
¶ 6 At trial, Tyler confirmed that Kaufman was not arrested for DUI. During an offer of proof made outside the presence of the jury, Tyler admitted that he did not have probable cause to believe Kaufman had driven under the influence of intoxicants at the time of her arrest on the unrelated warrant. Tyler also admitted that he had to make a decision "with very little information" because his observations at the scene were insufficient to support probable cause and Kaufman refused to perform the tests normally administered during a DUI investigation. Id. at 249.
¶ 7 Tyler testified that Kaufman refused to submit to either the PBT or the Datamaster breath test or to perform FSTs. During cross-examination, Tyler was asked whether he gathered any further evidence of Kaufman’s impairment at the jail, and he answered, "Any new no." Id. at 251. He said his investigation at the jail "reinforced" his observations about Kaufman’s odor of alcohol, her bloodshot and watery eyes, and her flushed face. Id .
¶ 8 On redirect examination, the City had the following exchange with Tyler:
¶ 9 The City repeatedly commented on Kaufman’s refusal to submit to the PBT, FSTs, and the Datamaster breath test in its opening statement and closing arguments. The City suggested that Kaufman’s refusal to perform these tests was the primary evidence that Kaufman had driven under the influence of intoxicants.
¶ 10 The jury was given the following instructions related to DUI:
A person commits the crime of driving under the influence when he or she drives a motor vehicle while he or she is under the influence of or affected by intoxicating liquor.
Id. at 89; 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 92.01, at 290 (4th ed. 2016) (WPIC).
¶ 11 The jury found Kaufman guilty of DUI.4 Former RCW 46.61.502 (2013).
¶ 12 Kaufman appealed her conviction to the superior court. The superior court affirmed, holding that the PBT refusal evidence was properly admitted under State v. Baird , 187 Wash.2d 210, 386 P.3d 239 (2016), and State v. Mecham , 186 Wash.2d 128, 380 P.3d 414 (2016). The court also held that Tyler’s opinion on the guilt of the defendant was improper under State v. Black , 109 Wash.2d 336, 745 P.2d 12 (1987), but concluded that the admission of the improper opinion testimony was harmless beyond a reasonable doubt due to the overwhelming untainted evidence of guilt. We granted discretionary review on the preceding issues.
¶ 13 Kaufman argues that the trial court committed reversible error by admitting evidence of her refusal to take the PBT because she had a constitutional right to refuse to take this test and that admission of her refusal to take the test violated the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution. Kaufman also argues that the trial court erred when it allowed Officer Tyler to opine that Kaufman’s refusal to perform FSTs, the PBT, and the Datamaster breath test demonstrated her consciousness of guilt. We agree on both grounds.
¶ 14 RALJ 9.1 governs a review of the district court’s decision, whether by us or by the superior court. State v. McLean , 178 Wash. App. 236, 242, 313 P.3d 1181 (2013). The decision of the superior court on appeal is subject to discretionary review. RALJ 9.1(h) ; RAP 2.3.
¶ 15 "[I]f a trial error is of constitutional magnitude, prejudice is presumed and the State bears the burden of proving it was harmless beyond a reasonable doubt." State v. Coristine , 177 Wash.2d 370, 380, 300 P.3d 400 (2013). In evaluating whether a constitutional error is harmless, we use the overwhelming untainted evidence test. State v. Watt , 160 Wash.2d 626, 635-36, 160 P.3d 640 (2007). We will find the error harmless only if we are satisfied beyond a reasonable doubt that the untainted evidence presented to the jury is so overwhelming that it "necessarily leads to the same outcome." State v. Mayer , 184 Wash.2d 548, 566, 362 P.3d 745 (2015). In examining the evidence, we look only to the untainted evidence to determine whether the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. Watt , 160 Wash.2d at 636, 160 P.3d 640 ; State v. Guloy , 104 Wash.2d 412, 426, 705 P.2d 1182 (1985).
¶ 16 Kaufman argues that she had a constitutional right to refuse the PBT and that the trial court violated the Fourth Amendment and article I section 7 in admitting evidence of her refusal to submit to a PBT as evidence of guilt at trial. The City argues that Kaufman did not have a constitutional right to refuse the PBT because it occurred "post-arrest" as a search incident to her arrest, thus it was admissible evidence of guilt at trial. We agree with Kaufman.
¶ 17 We review constitutional issues de novo. Mecham , 186 Wash.2d at 137, 380 P.3d 414. A breath test is a search under the Fourth Amendment and under article I, section 7 of the Washington Constitution. State v. Garcia-Salgado , 170 Wash.2d 176, 184, 240 P.3d 153 (2010). Generally, "[w]e presume that...
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