State v. Mee Hui Kim
| Decision Date | 26 June 2006 |
| Docket Number | No. 55866-8-I.,55866-8-I. |
| Citation | 134 Wn. App. 27,139 P.3d 354 |
| Parties | STATE of Washington, Respondent, v. MEE HUI KIM, Appellant. |
| Court | Washington Court of Appeals |
Lee Davis Yates, King County Prosecutor's Office Seattle, WA for Respondent.
Richard Alan Hansen, Allen Hansen & Maybrown PS, Seattle, WA, for Appellant.
¶ 1 Mee Hui Kim was driving the wrong way on Highway 99 when she hit another car head-on, killing the driver and seriously injuring the passenger in her car. Kim waived her right to a jury and stipulated to a bench trial based on documentary evidence. Kim appeals her conviction for vehicular homicide and vehicular assault. Kim contends the trial court erred in denying her motion to suppress the blood alcohol test results because (1) the police officer could not submit a blood sample without her consent; and (2) the State failed to prove the Washington State Toxicology Laboratory ("WSTL") followed its internal testing policies and procedures. Kim also contends the trial court abused its discretion in excluding testimony that her passenger might have given her a "date-rape drug."
¶ 2 We conclude the trial court did not err in denying Kim's motion to suppress the blood alcohol test results. As conceded below, because there was probable cause to arrest Kim for vehicular assault, the officer had the authority to obtain a blood sample from Kim for testing without her consent. Given the circumstances of the collision, the officer also had reasonable grounds to believe Kim was driving under the influence of alcohol and obtain a blood sample for testing without her consent. At the pretrial hearing on the admissibility of the blood alcohol test, the State presented prima facie proof that the WSTL complied with the Washington Administrative Code (WAC) in performing the test. We conclude the State did not also have to show that the test complied with the WSTL's internal policies and procedures for purposes of admissibility. We also conclude the trial court did not abuse its discretion in excluding testimony and argument that Kim was given a date-rape drug because there was no evidence to support her theory. We affirm.
¶ 3 Shortly after 2:00 a.m. on September 28, 2003, Mee Hui Kim was in Seattle driving her Kia Sephia the wrong way on Highway 99. Kim was traveling at 40 miles per hour going northbound in the southbound lanes of Highway 99. At that location in the downtown Seattle area, Highway 99 is a divided, limited access highway. Just after exiting the Battery Street tunnel north of downtown Seattle, Kim's car collided head-on with a Honda Civic driven by Harrison Yu.
¶ 4 The closest points to enter Highway 99 the wrong way and travel northbound in the southbound lanes were all south of downtown and several miles from of the collision. For all of the potential entry points, there are signs and significant physical barriers to prevent cars from entering Highway 99 in the wrong direction. A witness reported Kim was driving the wrong way for a considerable distance before entering the Battery Street tunnel.
¶ 5 The three occupants of the two cars were trapped until the police and medics arrived. After the police and medics arrived, Kim, her passenger, Dong Lee, and Yu were transported to Harborview Medical Center. Yu suffered catastrophic injuries and died a few days after the accident.1 Lee sustained serious injuries, including a traumatic brain injury, a dislocated hip, a tibia fracture, and injuries to his hand and knee. Kim suffered the least significant injuries, principally a compound ankle fracture.
¶ 6 Seattle Police Officer J.D. Huber responded to the scene of the collision and went to Harborview with the injured occupants. After Kim was treated by the emergency medical staff, Officer Huber introduced himself and told Kim she was under arrest for vehicular assault. Officer Huber told her she could also face charges for vehicular homicide. Kim kept interrupting Officer Huber to ask about Lee. Because Lee was nearby screaming in pain, Officer Huber bent down to talk to Kim. When Officer Huber bent down, he smelled alcohol on Kim's breath. Officer Huber advised Kim of her Miranda2 rights, and gave her the implied consent warnings for obtaining a mandatory felony blood draw, and told her that she had the right to an independent testing.3 Kim said she wanted a lawyer. Officer Huber told Kim he would not ask her any questions but she did not have the right to refuse giving a blood sample for testing and she could talk to a lawyer later.
¶ 7 Kim's blood sample was taken at 3:45 a.m., within two hours of the collision. A forensic toxicologist at the WSTL tested Kim's blood sample using the Head Space gas chromatography method. The results showed a blood alcohol level of 0.20g/100 ml, which is two and a half times the legal limit. Kim's independent expert also tested Kim's blood sample. That test showed an almost identical result of a blood alcohol level of .199 g/100ml.
¶ 8 The State charged Kim with vehicular homicide under RCW 46.61.522(1)(b), for driving while under the influence of alcohol and causing Yu's death, and with vehicular assault under RCW 46.61.520(1)(a), for driving under the influence of alcohol and causing Lee's injuries.
¶ 9 Pretrial, Kim moved to suppress the results of the WSTL's blood alcohol test. Kim argued that Officer Huber did not have probable cause to arrest her for an alcohol related felony and the State did not establish that the toxicologist followed the "Head Space GC Protocol" in the "Washington State Toxicology Laboratory Policies and Procedures Manual" ("Head Space GC Protocol")."4
¶ 10 At the pretrial hearing, the State presented the testimony of Officer Huber and Ann Gordon, a forensic toxicologist and the WSTL Manager. The trial court denied Kim's motion that Officer Huber lacked the authority to obtain a blood sample from Kim for a blood alcohol test without her consent under RCW 46.20.308(1) and RCW 46.20.308(3). The court also decided the State met its prima facie burden of showing the blood alcohol test complied with the requirements of the WAC and was admissible.
¶ 11 Right before trial, the State moved to exclude any testimony or argument about Lee's relationship with Kim and the possibility that Lee gave Kim a date-rape drug the night of the accident. Because Kim presented no evidence to support her theory that Lee gave her a date-rape drug, the court granted the State's motion in limine. But the court ruled Kim could present evidence about her relationship with Lee and what transpired between them on the night of the accident.
¶ 12 After jury selection, Kim stipulated to a bench trial. In the stipulation, Kim waived her right to a jury and agreed to present her case to the court based on the police reports and the other documentary evidence. The trial court found Kim guilty of vehicular homicide and vehicular assault as charged and entered findings of fact and conclusions of law. The court imposed a standard range sentence of 41 months. Kim appeals
¶ 13 Kim relies on RCW 46.20.308(1) to argue the trial court erred in denying her motion to suppress the WSTL's blood alcohol test results. Under RCW 46.20.308(1) a police officer can obtain a blood sample taken without consent if "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. . . ." Kim contends Officer Huber did not have reasonable grounds to believe she was driving under the influence of alcohol until he smelled alcohol on her breath after placing her under arrest for vehicular assault and, therefore, was not entitled to obtain a blood sample without her consent.
¶ 14 Kim's reliance on RCW 46.20.308(1) ignores the independent statutory authority to obtain a blood sample under RCW 46.20.308(3) and ignores her concession below. Under RCW 46.20.308(3) a police officer can obtain a blood sample for testing without consent when an individual is under arrest for vehicular assault or vehicular homicide. RCW 46.20.308(3) provides in pertinent part:
If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which there has been serious bodily injury to another person, a breath or blood test may be administered without the consent of the individual so arrested.5
¶ 15 Kim conceded below that based on her disregard for the safety of others, she was lawfully under arrest for vehicular assault.6 An arrest for vehicular assault is in and of itself a proper basis to obtain a blood draw for testing. RCW 46.20.308(3); State v. Avery, 103 Wash.App. 527, 534, n. 6, 13 P.3d 226 (2000). Because Kim was concededly under arrest for vehicular assault before Officer Huber smelled alcohol, he had the authority to obtain a blood sample under RCW 46.20.308(3) without Kim's consent.
¶ 16 In addition, we agree with the trial court that given the circumstances of the collision, Officer Huber had reasonable grounds to believe Kim was driving under the influence of alcohol or drugs under RCW 46.20.308(1) before he smelled alcohol on her breath and obtain a blood sample without her consent. The collision occurred shortly after the bars closed at 2:00 a.m.; Kim had to overcome a number of significant physical barriers to get onto Highway 99 and drive in the wrong direction; and she drove the wrong way for some distance.
¶ 17 As an alternative argument, Kim contends Officer Huber did not advise her that she had the right to alternative...
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