State v. Cox
| Decision Date | 26 July 2016 |
| Docket Number | No. 46903-1-II,46903-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CHRYSTAL ROSE COX, Appellant. |
LEE, J. — Chrystal Rose Cox was convicted of felony driving under the influence of intoxicants under former RCW 46.61.502(6)(b)(ii) (2008). On appeal, Cox challenges the trial court's denial of her motions to suppress (1) evidence resulting from the initial blood draw and the second blood test, arguing that the search warrants' supporting affidavits were insufficient to establish probable cause; and (2) evidence of her refusal to submit to a breath test, arguing that it violates her rights against self-incrimination and warrantless searches. Cox also argues that (3) she was prejudiced by the prosecutor's misconduct; (4) the trial court erred in denying her motion for a new trial based on the alleged prosecutorial misconduct; and (5) the sentencing court erred in calculating her offender score, or in the alternative, her attorney was ineffective for failing to object to the calculation.
We hold that the trial court did not abuse its discretion in denying her motions to suppress the evidence relating to (1) her initial blood draw and her second blood test because the affidavit supported a probable cause finding; and (2) her refusal to submit to a breath test because such evidence is nontestimonial and explicitly allowed under Washington law. We further hold that Cox failed to establish that she was prejudiced by the alleged prosecutorial misconduct and, therefore, her claims of (3) prosecutorial misconduct and (4) denial of a motion for a new trial fail. Finally, we hold that (5) the sentencing court did not err in calculating her offender score because our Supreme Court in State v. Sandholm, 184 Wn.2d 726, 364 P.3d 87 (2015), considered and rejected the same argument Cox now raises. Consequently, we affirm.
On March 31, 2013, Washington State Patrol Trooper Jeffery Heath observed Cox's vehicle traveling "at a very high rate of speed," and used his radar gun to determine that she was traveling at 83 MPH in a zone with a speed limit posted at 60 MPH miles per hour. 4 Verbatim Report of Proceedings (VRP) at 301, 303; 1 VRP at 15; Clerk's Papers (CP) at 2. Cox did not respond immediately to Trooper Heath's emergency lights, but she eventually stopped.
After stopping, Trooper Heath spoke to Cox through the passenger side window of Cox's car. Cox was the only person in the car. When Cox rolled the window down, Trooper Heath detected "a pretty obvious odor of intoxicants coming from inside the vehicle," and noticed Cox had bloodshot watery eyes and slurred speech. 4 VRP at 304-05; 1 VRP at 16-17. Trooper Heath asked Cox to step out of the car and to perform field sobriety tests (FSTs), but did not tell her thatthey were voluntary. A disagreement between Trooper Heath and Cox ensued, which resulted in Trooper Heath calling a second Washington State Patrol Trooper, Ben Taylor, to the scene.
Cox agreed to perform the FSTs for Trooper Taylor. Trooper Taylor modified the first of the three FSTs because Cox was very agitated, they were on an overpass, and he "saw what [he] needed" as he was conducting them.1 4 VRP at 369. Based on Cox's performance on the FSTs, her demeanor, and the odors he smelled, Trooper Taylor arrested Cox and turned her over to Trooper Heath.
Trooper Heath advised Cox of her right to take a breath test, which Cox refused. Trooper Heath then applied for a search warrant for Cox's blood to be drawn and tested. In the affidavit in support of the warrant, Trooper Heath declared that his radar reported Cox traveling at 83 MPH in a 60 MPH speed zone, Cox was slow to respond to his emergency lights, Cox was argumentative, Cox had a strong odor of intoxicants about her person, Cox was alone in the car, Cox's speech was slurred, and Cox's eyes were watery and bloodshot. Trooper Heath also wrote, CP at 76. Trooper Heath did not note that one of the FSTs performed was not conducted according to the troopers' training. Finally, a dash cam recording of the stop showed that Trooper Heath did not tell Cox the FSTs were voluntary. The warrant was granted, and Cox was taken to the hospital for the blood draw.
Cox's blood was tested on two different occasions. Cox's blood was initially tested shortly after it was drawn, but it needed to be retested because State v. Martines2 was published and required a second warrant be obtained for the blood to be tested.
Cox was charged by amended information on October 31, 2014, in Clark County for felony driving while under the influence of intoxicants.3 Prior to trial, Cox moved to suppress evidence seized pursuant to the search warrants.
Cox sought to suppress evidence obtained from the blood draw, arguing, as relevant to this appeal, that the affidavit in support of the blood draw was conclusory and that the warrant for the blood draw did not authorize the blood to be tested. Cox also sought to suppress evidence of her refusal to submit to a breath test, arguing that it was evidence of her refusal to submit to a warrantless search.
A suppression hearing was held, and the trial court found there was probable cause to arrest Cox based upon the FSTs conducted by Trooper Taylor and based upon Trooper Heath's observations of the odor of intoxicants, Cox's bloodshot and watery eyes, and her slurred speech. However, the trial court also found that the evidence seized pursuant to the search warrant should be suppressed because the issuing magistrate believed that Trooper Heath had completed the FSTs and made the arrest. Finally, the trial court found that Cox's refusal to take the breath test was admissible.
The State moved the trial court to reconsider its suppression of evidence seized through Trooper Heath's affidavit and resulting search warrant. Upon reconsideration, the trial court changed its previous finding:
As a result of the trial court's finding that Trooper Heath's excised affidavit supported probable cause for the first warrant, Cox then moved the trial court to consider the suppression of the initial blood test under Martines.4 The trial court denied Cox's reconsideration motion, but allowed Cox to challenge the second blood test.5
Cox challenged the results of the second blood test by arguing, among other things, that the supporting affidavit did not establish probable cause because it relied on documents purported to be attached but were never actually attached, and once those portions were excised from the document, probable cause no longer existed. The trial court disagreed, finding that after excising the portions that were unsupported, probable cause still existed based on Trooper Heath's statements of his observations and interviews, which created the "causal connection between probable cause to the testing of this blood." 3 VRP at 243. The trial court also found:
At the end of the State's rebuttal argument in closing, the following exchange took place:
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