State v. Kronich, 23427-4-III.

• Decision Date: 07 February 2006
• Docket Number: No. 23427-4-III.,23427-4-III.
• Citation: 128 P.3d 119,131 Wn. App. 537
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kyle K. KRONICH, Appellant.

128 P.3d 119

131 Wn. App. 537

STATE of Washington, Respondent, v. Kyle K. KRONICH, Appellant.

No. 23427-4-III.

Court of Appeals of Washington, Division 3.

February 7, 2006.

Tracy A. Staab, Federal Public Defenders, Spokane, WA, for Appellant.

Kevin M. Korsmo, Brian C. O'Brien, Attorneys at Law, Spokane, WA, for Respondent.

BROWN, J.

¶ 1 Kyle K. Kronich appeals his convictions for driving while under the influence (DUI) and third degree driving while license suspended. He contends (1) his breath test refusal should have been suppressed because he was denied an attorney and (2) a Department of Licensing (DOL) record violated Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We affirm.

FACTS

¶ 2 Deputy Sheriff Jeff Jenkins was behind Mr. Kronich's vehicle at a train crossing waiting for a train to pass. While waiting, Deputy Jenkins checked Mr. Kronich's license plate by radio and learned Mr. Kronich's license was suspended. Deputy Jenkins verified Mr. Kronich's description and then stopped the vehicle. Mr. Kronich exited the vehicle and appeared "lethargic." Clerk's Papers (CP) at 47. His eyes were half-closed and he appeared sleepy and very slow moving.

¶ 3 Deputy Jenkins smelled a strong odor of intoxicants on Mr. Kronich's breath. Mr. Kronich was arrested for driving with a suspended license. Deputy Jenkins saw numerous open beer containers in the car. Mr. Kronich refused a breath test, blood test, and field sobriety tests. Deputy Jenkins completed a DUI Arrest Report box showing, "Attorney Requested?" DUI Arrest Report at 2. Deputy Jenkins checked "Yes." Id. Then, the Deputy filled in "No" in the box, "Attorney Contacted?" Id. Within the "Attorney's Name" box, the deputy noted, "Did not want to call." Id.

¶ 4 Mr. Kronich was charged with driving under the influence of intoxicating liquor and/or drugs and third degree driving while license suspended. Before trial, Mr. Kronich unsuccessfully sought suppression of his breath test refusal, arguing denial of access to counsel. The court reasoned Mr. Kronich accepted the deputy's offer to contact an attorney, but "for some reason Mr. Kronich decided that he didn't want to call anybody." CP at 30. The court concluded he waived his right to access to counsel, noting, "All the State has to do or the law enforcement agency has to do is help provide access." CP at 30. Further, the court reasoned the defense failed to make "the case that total access to an attorney was denied." CP at 31.

¶ 5 During trial, the State admitted a DOL Order of Revocation of Mr. Kronich's driving privileges and a cover letter from the DOL custodian of records, certifying that DOL records indicated Mr. Kronich: "Had not reinstated his/her driving privilege. Was suspended/revoked." Exhibit 2.

¶ 6 Mr. Kronich was convicted as charged. On RALJ review, the superior court affirmed Mr. Kronich's convictions, finding the district court "applied the wrong standard regarding who has the burden of producing evidence in the suppression hearing." CP at 98. But, the superior court concluded, the error was harmless because even without the evidence of Mr. Kronich's refusal to submit to the breath test, substantial evidence existed to show intoxication. Additionally, the superior court concluded admission of the DOL document falls under the public record exception and, therefore, does not violate Crawford, 541 U.S. 36, 124 S.Ct. 1354. This court granted discretionary review.

ANALYSIS

A. Access to Counsel

¶ 7 The issue is whether the trial court erred in denying Mr. Kronich's suppression motion to exclude evidence of his refusal to perform the breath test on the grounds he was denied access to counsel.

¶ 8 In a RALJ review, our focus is error in the district court, not the superior court. State v. Brokman, 84 Wash.App. 848, 850, 930 P.2d 354 (1997). We review legal issues de novo and factual issues for substantial evidence. City of Bellevue v. Jacke, 96 Wash.App. 209, 211, 978 P.2d 1116 (1999).

¶ 9 An arrested driver subject to a breath test must be advised of the Miranda¹ rights and right to access counsel under CrRLJ 3.1. State v. Staeheli, 102 Wash.2d 305, 309, 685 P.2d 591 (1984). "If the defendant requests the assistance of counsel, access to counsel must be provided before administering the test." State ex rel. Juckett v. Evergreen Dist. Court, 100 Wash.2d 824, 831, 675 P.2d 599 (1984). According to CrRLJ 3.1(c)(2): "At the earliest opportunity a person in custody who desires a lawyer shall be provided access to a telephone, the telephone number of the public defender or official responsible for assigning a lawyer, and any other means necessary to place him or her in communication with a lawyer." The remedy for denying the right to counsel is suppression of the evidence acquired after the violation. City of Spokane v. Kruger, 116 Wash.2d 135, 803 P.2d 305 (1991).

¶ 10 In denying Mr. Kronich's motion to suppress, the trial court reasoned under the facts Mr. Kronich accepted the deputy's offer to contact an attorney, but "for some reason Mr. Kronich decided that he didn't want to call anybody." CP at 30. Although the trial court did not make explicit written findings to this effect, this court may look to the trial court's oral decision for interpretation. State v. Motherwell, 114 Wash.2d 353, 358 n. 2, 788 P.2d 1066 (1990). In reviewing a suppression motion denial, we examine whether substantial evidence supports the trial court's findings of fact. State v. Vickers, 148 Wash.2d 91, 116, 59 P.3d 58 (2002).

¶ 11 Here, Deputy Jenkins completed a DUI Arrest Report. On the report, it asks, "Attorney Requested?" DUI Arrest Report at 2. Deputy Jenkins checked the box "Yes." Id. Then, the report asks, "Attorney Contacted?" Id. The deputy checked, "No." Id. Within the "Attorney's Name" box, the deputy noted, "Did not want to call." Id. The DUI report provides substantial evidence that Deputy Jenkins offered access to counsel and Mr. Kronich accepted, but then changed his mind. Mr. Kronich's indecisiveness is not a surprise given the deputy's observation that Mr. Kronich had been drinking, was lethargic, and very slow moving.

¶ 12 Accordingly, substantial evidence shows Mr. Kronich changed his mind about his desire for counsel. While CrRLJ 3.1 requires the State to offer access to counsel, it is not required to force the defendant to accept. See State v. Halbakken, 30 Wash.App. 834, 837, 638 P.2d 584 (1981) (in DUI cases, the State has no duty to provide counsel in the absence of a request). The rule was not violated.

¶ 13 However, assuming Mr. Kronich was denied his CrRLJ 3.1 right of access to counsel, Mr. Kronich would still have to prove prejudicial error. "Because the asserted error is a violation of a court rule (rather than a constitutional violation), it is governed by the harmless error test." State v. Robinson 153 Wash.2d 689, 697, 107 P.3d 90 (2005) (citing State v. Templeton, 148 Wash.2d 193, 220, 59 P.3d 632 (2002)). When a court rule is involved, this court determines whether the error was prejudicial in that "`within reasonable probabilities, [if] the error [had] not occurred, the outcome . . . would have been materially affected.'" Robinson, 153 Wash.2d at 697, 107 P.3d 90 (quoting State v. Neal, 144 Wash.2d 600, 611, 30 P.3d 1255 (2001)).

¶ 14 Other DUI evidence exists beyond the refusal. Deputy Jenkins testified he observed Mr. Kronich driving. Upon stopping him for a suspended driver's license, Deputy Jenkins noticed Mr. Kronich appeared lethargic with his eyes half-closed and moving very slowly. As the deputy approached, he smelled a strong odor of intoxicants on Mr. Kronich's breath. Upon searching his vehicle, Deputy Jenkins observed numerous open containers of beer. Within reasonable probabilities, even if the jury did not learn of Mr. Kronich's refusal to perform the breath test, it would have still convicted him of DUI.

B. Public Record Admissibility

¶ 15 The next issue is whether Mr. Kronich was denied his Sixth Amendment confrontation rights under Crawford when the court allowed admission of a DOL record custodian's certification regarding the status of Mr. Kronich's driving privileges.

¶ 16 We review evidence rulings for abuse of discretion. State v. Chapman, 98 Wash.App. 888, 890, 991 P.2d 126 (2000). Discretion is abused when it is exercised without tenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

¶ 17 Mr. Kronich did not object to the DOL document at trial based on Crawford, even though Crawford was decided before his trial. Rather, he objected based on "foundation." CP at 60. The State explained the document was under seal. It was then admitted without further objection. This is unsurprising given ER 902 (document under seal is self-authenticating).

¶ 18 Our Supreme Court recently addressed a similar situation. In State v. Smith, 155 Wash.2d 496, 120 P.3d 559 (2005), Mr. Smith objected at his first degree driving while license suspended or revoked trial to a letter from a DOL custodian of records based on foundation. On appeal, he argued the letter should have been excluded as hearsay. The court of appeals held a DOL letter, certifying information in DOL's database regarding an individual's driving status is a public record. See State v. Smith, 122 Wash.App. 699, 704, 94 P.3d 1014 (2004) (driving record is "a classic example of a public record"). The Supreme Court held the court of appeals should not have reached this issue because Mr. Smith objected at trial to foundation, not hearsay. Smith, 155 Wash.2d at 501 n. 4, 120 P.3d 559. The Court also declined to reach Mr. Smith's unidenited "constitutional questions." Smith, 155 Wash.2d at 501, 120 P.3d 559.

¶ 19 Here, Mr. Kronich raises a constitutional objection. Under RAP 2.5(a), this court declines to address new constitutional issues raised for the first time on appeal unless the claim reflects a manifest error affecting a...