State v. Mecham

• Decision Date: 21 April 2014
• Docket Number: No. 69613–1–I.,69613–1–I.
• Citation: 323 P.3d 1088
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Mark Tracy MECHAM, Appellant.

323 P.3d 1088

STATE of Washington, Respondent,

v.Mark Tracy MECHAM, Appellant.

No. 69613–1–I.

Court of Appeals of Washington, Division 1.

April 21, 2014.

Editor's Note: The opinion of the Court of Appeals of Washington, Division 1, in State v. Mecham, published in the bound volume at this citation, 323 P.3d 1088, was withdrawn from the Washington Reporter bound volume because opinion was withdrawn from publication on denial of reconsideration. For superseding opinion, see 2014 WL 3842911.Nielsen Broman Koch PLLC, Attorney at Law, Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Prosecuting Atty. King County, King Co Pros/App Unit Supervisor, Erin Hairopoulos Becker, King County Prosecutors Office, Seattle, WA, for Respondent.

APPELWICK, J.

¶ 1 At Mecham's trial for felony driving under the influence, the State introduced Mecham's refusal to perform a field sobriety test as substantive evidence of his guilt. Mecham argues that the State impermissibly penalized him for exercising his constitutional right to refuse consent to a field sobriety test. Mecham also makes a confrontation clause challenge to the admission of a certification of mailing on his license revocation order. We affirm.

FACTS

¶ 2 On May 15, 2011, Officer Scott Campbell observed Mark Mecham driving in Bellevue, Washington. Campbell pulled Mecham over after he ran a random license check and discovered an outstanding warrant. He did not see Mecham drive unsafely or commit any traffic infractions.

¶ 3 While arresting Mecham, Officer Campbell noticed that Mecham appeared intoxicated. Campbell observed that Mecham's breath smelled of alcohol, his movements were sluggish, and his speech was slurred and repetitive.

¶ 4 Campbell asked Mecham to perform a voluntary field sobriety test. The standard field sobriety test has three components. First, it involves the horizontal gaze nystagmus test, in which the person must follow a moving object with the eyes while the officer looks for involuntary jerking movements. Second, it includes the “walk and turn,” where the person must take several heel-to-toe steps on a line. And, finally, it involves standing on one leg while counting out loud.

¶ 5 Mecham declined to perform the field sobriety test.

¶ 6 Campbell noticed that Mecham's car doors were open and unlocked, with the keys still in the ignition, so he offered to secure Mecham's car. Mecham told Campbell just to shut the doors, but not to go in his car. When Campbell approached to shut the doors, he noticed an open beer can with a straw in it behind the passenger seat.

¶ 7 Campbell transported Mecham to the Bellevue booking facility. Once there, he read Mecham the implied consent warnings and asked Mecham to submit to a breath test. Mecham refused.

¶ 8 At the police station, Officer Darrell Moore helped Campbell draft an application for a search warrant to test Mecham's blood alcohol content. Officer Moore also smelled intoxicants on Mecham's breath. He noticed that Mecham's speech was slurred, his eyes were glazed and bloodshot, and his pupils were dilated despite the bright room. Based on these observations, Moore also believed Mecham to be impaired.

¶ 9 Once they obtained a warrant, the officers took Mecham to Overlake Hospital for a blood draw. A lab assistant drew Mecham's blood approximately three hours after his arrest.

¶ 10 A forensic toxicologist, Rebecca Flaherty, analyzed Mecham's blood. She reported that his blood alcohol content was 0.05 grams per 100 milliliters (g/100 ml). She testified that, based on the rate alcohol is metabolized in the body, Mecham likely had a blood alcohol level of 0.065 g/100 ml within two hours after he stopped driving, and possibly as high as 0.08 g/100 ml. ¹ While alcohol affects people differently, Flaherty explained, most people cannot safely drive with a blood alcohol content of 0.05 g/100 ml.

¶ 11 On August 25, 2011, the State charged Mecham with one count of felony driving under the influence (DUI). On October 23, 2012, the State amended the information to add two misdemeanor charges: driving while license suspended/revoked in the first degree (DWLS) and violation of ignition interlock. RCW 46.20.342(1)(a); RCW 46.20.740. Mecham requested a bench trial on the two misdemeanors. The felony DUI charge was tried by a jury.

¶ 12 Mecham stipulated that Officer Campbell made a lawful stop and arrest. Mecham also stipulated that, at the time of his arrest, he had previously been convicted of four or more prior offenses within 10 years, pursuant to RCW 46.61.5055(14)(a).

¶ 13 The trial court denied repeated defense motions to suppress Mecham's refusal to perform a field sobriety test. The court ruled that even if the field sobriety test amounted to a search, it was justified by probable cause. The court likewise rejected Mecham's proposed jury instruction that his refusal could not be used as evidence of guilt.

¶ 14 Mecham also proposed an alternative “to convict” jury instruction for the felony DUI, which stated, “In order to return a verdict of guilty, you must unanimously find from the evidence that each of [the felony DUI] elements has been proven beyond a reasonable doubt.” The trial court declined to give Mecham's proposed instruction. Instead, the court gave a to convict instruction consistent with the Washington Pattern Jury Instructions:

If you find from the evidence that [the felony DUI elements] have been proven beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing the evidence, you have a reasonable doubt as to any one of [these elements], then it will be your duty to return a verdict of not guilty.

11A Washington Practice: Washington Pattern Jury Instructions: Criminal 92.02, at 274 (3d ed.2008).

¶ 15 In closing, the State argued that Mecham refused to participate in field sobriety testing in order to frustrate and delay the investigation. Several other times in closing the State argued that Mecham refused the field sobriety test, because he knew it would reveal his guilt.

¶ 16 At the bench trial on the misdemeanors, the trial court admitted an order from the Washington State Department of Licensing (DOL) revoking Mecham's driver's license from October 29, 2010 until August 11, 2013. The revocation order contains a certification of mailing in the bottom right corner, which reads:

I certify under penalty of perjury under the laws of the state of Washington that I caused to be placed in a U.S. Postal Service mail box, a true and accurate copy of this document to the person named herein at the address shown which is the last address of record. Postage prepaid on September 14, 2010 in Olympia, WA.

[/s/] Elizabeth A. L[illegible]

Agent for the Department of Licensing

¶ 17 The court admitted the revocation order as a DOL business record pursuant to testimony from Abdul Qaasim, a DOL custodian of records. Qaasim explained that he searched the DOL records for information on Mecham and determined that Mecham was a habitual traffic offender. Qaasim also found the revocation order in his research and testified to the date of revocation. However, the person who signed the certification of mailing did not testify. Mecham objected on confrontation clause grounds. The trial court ruled that Mecham did not have a right to confront the person who signed the certification of mailing.

¶ 18 The jury found Mecham guilty of felony DUI. The trial court found Mecham guilty of first degree DWLS and violation of ignition interlock. Mecham timely appealed.

DISCUSSION

¶ 19 Mecham makes three arguments on appeal. First, he asserts that a field sobriety test constitutes an unreasonable search under the Fourth Amendment and article I, section 7 of the Washington Constitution. As a result, he argues, the State improperly penalized him for exercising his constitutional right to refuse consent to a field sobriety test by commenting on his refusal at trial. Second, he argues that the to convict instruction given at his felony DUI trial violated his constitutional right to a jury trial. And, third, he argues that the certification of mailing on the license revocation order constitutes testimonial hearsay and its admission violated his right to confront the witnesses against him.

I. Field Sobriety Test

¶ 20 Mecham argues that the trial court erred in admitting evidence that he refused to perform to a field sobriety test.² The State then used this as evidence of Mecham's guilt at trial. Mecham argues that a field sobriety test constitutes a search under the Fourth Amendment and article I, section 7. Therefore, he argues, the State's comment on his refusal to perform a field sobriety test unfairly penalized him for exercising his constitutional right to refuse consent to a warrantless search. When a trial court denies a motion to suppress, we review the trial court's conclusions of law de novo. State v. Winterstein, 167 Wash.2d 620, 628, 220 P.3d 1226 (2009).

¶ 21 Field sobriety tests are not governed by Washington's implied consent statute, RCW 46.20.308. Nevertheless, in Washington, there is “no legal obligation to perform a field sobriety test.” City of Seattle v. Personeus, 63 Wash.App. 461, 465–66, 819 P.2d 821 (1991). Unlike blood and breath alcohol tests, however, a suspect's right to refuse a field sobriety test is based in common law and not specifically protected by statute. City of Seattle v. Stalsbroten, 138 Wash.2d 227, 236–37, 978 P.2d 1059 (1999).

¶ 22 The Washington Supreme Court held in Stalsbroten that admitting evidence of a suspect's refusal to perform a field sobriety test does not violate the Fifth Amendment, because refusal is neither testimonial nor compelled. Id. at 238–39, 978 P.2d 1059. The question here is whether admitting refusal as evidence of guilt violates article I, section 7 and the Fourth Amendment.³ This turns on whether a field sobriety test constitutes an unreasonable search.

A. Reasonableness...