State v. Berger
| Full Citation | State v. Berger, 28240-6-III (Wash. App. Mar 24, 2011) |
| Decision Date | 24 March 2011 |
| Docket Number | 28240-6-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ARTHUR J. BERGER, JR., Appellant. |
UNPUBLISHED OPINION
Arthur J. Berger, Jr. appeals from Yakima County convictions of attempting to elude a pursuing police vehicle, driving while under the influence (DUI), and second degree driving while license suspended (DWLS).
We affirm the convictions but remand for correction of the statutory basis for the DUI suspended sentence/probation.
In the early evening hours of July 23, 2008, two witnesses made 911 calls reporting a red car (a Cadillac driven by Mr. Berger) swerving in and out of lanes on I-82, driving off the roadway onto the shoulder, almost hitting other cars, and cutting off other drivers. One of the 911 callers, Socorro Trujillo maintained some distance but followed Mr. Berger to the Granger exit, where he pulled into a Conoco station, parked near a gas pump, and entered the store. Ms. Trujillo parked next to a marked police car near the store entrance and also went inside. She was still on her 911 call and handed her cell phone to Officer David Leary who happened to be present. Ms. Trujillo told Officer Leary that he needed to arrest the man who was in the restroom.
The 911 dispatcher informed Officer Leary of the caller's reckless driving report and description of the vehicle. Officer Leary saw the vehicle outside. When Mr. Berger exited the restroom and Ms. Trujillo identified him, Officer Leary who was in full police uniform, followed Mr. Berger outside and yelled for him to stop. Mr. Berger jogged to his car and got in. Officer Leary approached to within 20 feet and twice yelled at Mr. Berger not to start the engine. Mr. Berger started the car, smiled, made eye contact with Officer Leary and gave him the middle finger as he accelerated from the parking lot some 60 feet onto Bailey Avenue.
Officer Leary ran to his patrol car, instantly activated his lights and sirens, and engaged pursuit. Mr. Berger's speed increased to an estimated 90 m.p.h. in a 25 m.p.h residential zone. Officer Leary maintained clear sight behind Mr. Berger's car for one or two seconds on Bailey Avenue until Mr. Berger veered right at a curve onto Granger Avenue. In total, Officer Leary estimated that once his lights and siren were activated in the Conoco parking lot, he maintained a clear line of sight with Mr. Berger's vehicle for five to seven seconds prior to reaching the Granger curve. Officer Leary followed onto Granger Avenue to find Mr. Berger's totaled vehicle crashed into a fence and light pole at the Granger School District offices.
Officer Leary approached the wreckage with his service weapon drawn and Mr. Berger yelling profanities at him. Trooper William Rutherford arrived and handcuffed Mr. Berger. Both officers detected a strong odor of alcohol on Mr. Berger. His face was flush, his eyes watery and red, his speech repetitive, and his demeanor argumentative. Officer Leary found an open can of beer in the car. He also learned that Mr. Berger's driving privileges were currently revoked and ineligible for reinstatement.
Trooper Rutherford read Mr. Berger his Miranda[1] warnings. Mr. Berger indicated he understood those rights and would speak with the officer. Mr. Berger said the vehicle was his and that he was coming from Mount Everest. Subsequently, as Mr. Berger was being treated by medical personnel in an ambulance, Trooper Rutherford again read him Miranda warnings, as well as implied consent warnings for a blood-alcohol test. After hearing the implied consent warnings, Mr. Berger responded, "'What the . . . are they going to do, suspend my already suspended license?'" Report of Proceedings (RP) at 408. When Trooper Rutherford asked if he would be willing to submit to the blood test, Mr. Berger responded, "I'm not doing anything."[2] RP at 408. He refused the blood test.
Mr. Berger testified on his own behalf. He admitted to driving terribly on the freeway. He also saw Officer Leary in full uniform in the Conoco parking lot and ignored his commands to stop. He admitted giving Officer Leary the middle finger and that he drove around the officer knowing he was being told to stop. He also admitted that he gunned the accelerator to the floor when fleeing the Conoco lot. He quickly increased his speed to 68 m.p.h. and then up over 100 m.p.h. on Bailey Avenue until he hit his brakes to take the right curve onto Granger Avenue. He denied hearing Officer Leary's sirens or knowing the officer was pursuing him. He claimed no recall of refusing the blood draw. He admitted to consuming alcohol a few hours before the accident.
The jury found Mr. Berger guilty as charged of eluding, DUI, and DWLS, and also found by special verdict for the DUI conviction that he had refused to submit to a blood test. The jury rejected Mr. Berger's theory that he had not consumed enough alcohol to affect his driving and that his belligerent behavior and flushed watery-eyed facial appearance was due to the airbag inflating into his face when he crashed. The jury also rejected his theory that he sped so fast in gaining an approximate one-half mile head start on the officer from the Conoco parking lot that he could not have been aware of the police pursuit prior to the crash and, thus, had no obligation to pull over.
The court imposed concurrent sentences of 18 months for the eluding conviction and 365 days for second degree DWLS, and a consecutive sentence of 365 days with 363 days suspended and five years' probation for the DUI. Mr. Berger appeals.
Admission of Blood Test Refusal.
Mr Berger first contends that the trial court erred by admitting evidence that he refused to submit to a blood test after his arrest. We disagree.
A trial court's evidentiary rulings are not to be disturbed on appeal absent an abuse of discretion. State v. Wilson, 144 Wn.App. 166, 183, 181 P.3d 887 (2008). The court abuses its discretion only if its decision is manifestly unreasonable or based on untenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
RCW 46.20.308(1) is the implied consent statute for motor vehicle operators arrested for a suspected DUI:
Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503.
"The refusal of a person to submit to a test of the alcohol or drug concentration in the person's blood or breath under RCW 46.20.308 is admissible into evidence at a subsequent criminal trial." RCW 46.61.517; see State v. Long, 113 Wn.2d 266, 272-73, 778 P.2d 1027 (1989).
RCW 46.61.506(5) requires that blood tests administered under the provisions of RCW 46.20.308 be performed only by certain qualified individuals such as a physician, registered nurse, or first responder, among others. But as discussed below, the State is correct that the statute is irrelevant in this case.
In State v. Cohen, 125 Wn.App. 220, 222, 104 P.3d 70 (2005), the defendant refused to submit to a breath test following an arrest for drunken driving. The parties stipulated that a required quality assurance procedure had not been performed on the machine the defendant would have used had she not refused the breath test and, thus, the results of any test conducted on that machine would have been inadmissible. The trial court extended that reasoning to also suppress the refusal evidence. Id. at 222-23. In reversing the suppression order, the Court of Appeals explained:
The rationale for admission of refusal evidence is that a refusal to take the test demonstrates the driver's consciousness of guilt. The refusal is the relevant fact, and the admissibility of the refusal does not depend on whether or not the results themselves, had any existed, would have been admissible. The hypothetical admissibility of the results of a test not taken is irrelevant to a consciousness of guilt analysis.
Applying this reasoning, the presence or not of a person qualified under RCW 46.61.506(5) to perform the blood draw is likewise irrelevant to Mr. Berger's refusal to submit to the blood test after receiving implied consent warnings. Nothing in the plain language of RCW 46.61.517 requires the presence of any such individual as a predicate to admissibility of blood test refusal evidence. Mr. Berger's contention that admission of his blood test refusal without proof that a "qualified technician"[3] was available is without merit. The evidence was properly admitted under RCW 46.61.517 and Cohen, 125 Wn.App. at 224-25.
Mr. Berger's further contention that his request for an attorney when refusing the blood test precludes admission of his refusal into evidence is also without merit.
When a driver arrested for suspicion of driving under the influence of drugs or alcohol is subject to a blood or breath test pursuant to RCW 46.20.308, the suspect must be advised of his or her Miranda rights, as well as the right to access counsel under CrRLJ 3.1. State v. Kronich 131 Wn.App. 537, 542, 128 P.3d 119 (2006), aff'd, 160 Wn.2d 893, 161 P.3d 982 (2007). "'If the defendant requests the assistance of counsel, access to counsel must be provided before administering the test.'" Id. at 542-43 (quoting State ex rel. Juckett v. Evergreen Dist....
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