State v. Gillenwater, 21975-1-II

• Decision Date: 23 July 1999
• Docket Number: No. 21975-1-II,21975-1-II
• Citation: 96 Wn.App. 667,980 P.2d 318
• Parties: STATE of Washington, Respondent, v. Gary GILLENWATER, Appellant.
• Court: Washington Court of Appeals

Page 318

96 Wn.App. 667

980 P.2d 318

STATE of Washington, Respondent, v. Gary GILLENWATER, Appellant.

No. 21975-1-II.

Court of Appeals of Washington Division 2.

July 23, 1999.

Vernon A. Smith, Bellevue, for Petitioner.

Randall Avery Sutton, Pamela Beth Loginsky, Kitsap Co. Dep. Pros. Atty's, Port Orchard, for Respondent.

ARMSTRONG, J.

We granted discretionary review of Gary Gillenwater's Kitsap County District Court DUI conviction to determine whether the police had probable cause to arrest him for the offense. Finding that they did, we affirm.

FACTS

The pertinent facts were developed at a district court probable cause hearing. On the night of September 30, 1995, three cars were involved in a fatal accident on SR 307 in Kitsap County. Gillenwater was driving northbound in a Honda Accord. Stanley Zaidinski was driving a Ford Taurus northbound behind Gillenwater. Karen Brown was driving a Geo Prizm southbound. Brown's Geo crossed the centerline and struck Gillenwater's Honda, almost head-on. Zaidinski could not avoid the other two cars and drove between them, striking both before coming to a stop. The police determined that Brown was at fault for crossing over the centerline. Brown had a 0.15 Breathalyzer reading. Brown and Gillenwater's passenger, Mr. Terrazus, died in the accident.

Although Gillenwater did not cause the accident, the police arrested him for DUI. They had the following facts at the time of arrest: Trooper Marc Barger saw a cooler full of beer behind the driver's seat of Gillenwater's car; three empty beer cans were on the floorboard, and the car exuded a strong smell of alcohol; Jeff Cowan, a paramedic, told Barger that Gillenwater had a strong smell of alcohol on his person; and the passenger in Gillenwater's car had an odor of alcohol on his person. Barger relayed this information to Trooper John McMillan, who went to the hospital to arrest Gillenwater.

At this point, Barger believed he had probable cause to arrest Gillenwater for DUI. But he took a statement from Zaidinski at the scene before communicating with McMillan,

the trooper at the hospital, so Zaidinski's statement completes the facts known to the police at the time of arrest. Zaidinski simply told Barger that as he was following Gillenwater north, Gillenwater's car was traveling the speed limit, with taillights on, and driving normally rather than erratically. ¹

ANALYSIS

The offense of driving under the influence, or while intoxicated, consists of "driving while under the influence of intoxicating liquor or any drug." RCW 46.61.502(1). "Thus, although one can legally drink and drive, State v. Hansen, 15 Wash.App. 95, 546 P.2d 1242 (1976) ... the two activities cannot be mixed to the extent that the drinking affects the driving...." State v. Franco, 96 Wash.2d 816, 825, 639 P.2d 1320 (1982). Accord State v. Melcher, 33 Wash.App. 357, 363, 655 P.2d 1169 (1982) ("[I]t is not illegal to drink and drive; it is illegal to drink to the point it affects driving."). But proof of erratic driving is not required to convict of driving under the influence. Hansen, 15 Wash.App. at 96, 546 P.2d 1242.

A police officer may arrest a person without a warrant upon probable cause to believe that the person has committed the offense of driving while intoxicated. O'Neill v. Department of Licensing, 62 Wash.App. 112, 116, 813 P.2d 166 (1991) (citation omitted). Probable cause to arrest must be judged on the facts known to the arresting officer before or at the time of arrest. " '[P]robable cause to arrest exists where the totality of the facts and circumstances known to the officers at the time of arrest would warrant a reasonably cautious person to believe an offense is being committed.' " O'Neill, 62 Wash.App. at 116-17, 813 P.2d 166 (quoting Waid v. Department of Licensing, 43 Wash.App. 32, 34-35, 714 P.2d 681 (1986)) (alteration in original). Probable cause to arrest requires more than "a bare suspicion of criminal activity," State v. Terrovona, 105 Wash.2d 632, 643, 716 P.2d 295 (1986), but does not require facts that would establish guilt beyond a reasonable doubt. State v. Conner, 58 Wash.App. 90, 98, 791 P.2d 261 (1990). Probable cause has also been defined as " 'a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.' " State v. Scott, 93 Wash.2d 7, 11, 604 P.2d 943 (1980) (citations omitted). And " '[t]he question of probable cause should not be viewed in a hypertechnical manner.' " State v. Herzog, 73 Wash.App. 34, 53, 867 P.2d 648 (1994) (quoting State v. Remboldt, 64 Wash.App. 505, 510, 827 P.2d 282 (1992)).

Gillenwater argues that the facts are insufficient to show probable cause because there is no evidence that he caused the accident or was driving erratically at the time. He argues further that in every accident case where the trooper has not performed field sobriety tests and has not observed bloodshot eyes or slurred speech, probable cause has been found only where the accident was caused by the suspected...