State v. Sanchez
| Decision Date | 03 December 1985 |
| Docket Number | No. 7047-2-II,7047-2-II |
| Citation | 711 P.2d 1029,42 Wn.App. 225 |
| Parties | The STATE of Washington, Respondent, v. Daniel SANCHEZ, Appellant. |
| Court | Washington Court of Appeals |
Albert Armstrong, (Court appointed), Mozena & Armstrong, Vancouver, for appellant.
Michael R. Foister, Deputy Pros. Atty., Vancouver, for respondent.
Defendant Daniel Sanchez appeals his conviction for negligent homicide by means of a motor vehicle (negligent homicide), RCW 46.61.520(1), after a jury trial. 1 The primary issues we are called upon to decide are (1) whether a conscious person arrested for negligent homicide must be given notice of his right to an independent blood test contemporaneously with the compulsory test administered at the direction of the arresting officer, and (2) whether the absence of a state witness because of a planned vacation satisfies the unavailability requirement of ER 804(b)(1), so as to permit the use of a pretrial deposition of the witness at trial. Additional issues concern the propriety of various evidentiary rulings; the denial of a proposed instruction; and sufficiency of the evidence of the alternative means of committing the offense of negligent homicide, including sufficiency of the evidence of causation based on Sanchez' intoxication.
We uphold the notice of the right to an independent blood test, given at a time that would permit an evaluation of the alcoholic content of the blood so as to dispute or confirm the results of the compulsory test, even though such notice was not given contemporaneously with the administration of the compulsory test. We hold also that the evidentiary rulings were proper, that there was no error in the denial or giving of the instructions or in the evidentiary rulings; and the evidence was sufficient to support the conviction. However, we conclude that admission of the videotaped deposition violated the unavailability requirement of ER 804(b)(1). Accordingly, we reverse and remand for a new trial.
Daniel Sanchez left the Totem Pole Lounge in Vancouver on January 3, 1983, at 1:50 a.m. The roads were icy. As Sanchez was driving up a hill on Highway 99, two deputies noticed that his car was fishtailing as it accelerated and was travelling faster than was warranted by the road conditions. The car then swerved to one side, passed over the crest of the hill, and the deputies heard the sound of a crash. Sanchez' car had crossed the center line and collided with another vehicle, killing its driver, Sandra Elmer, on impact.
Deputy Backous of the Clark County Sheriff's Office ordered a blood sample to be drawn from Sanchez after he had been taken to a hospital from the scene of the accident. The test of blood drawn at 3:43 a.m. showed a concentration of alcohol in his blood of .19 percent. Deputy Backous forgot to notify Sanchez that he had a right to procure an independent alcohol test under RCW 46.20.308(1). 2 Deputy Sheriff Treverthon later went to the jail, where Sanchez had been taken, and informed him of this right at 5:52 a.m. At a suppression hearing, the judge ruled that notice of the right to alternative testing had been given in accord with statutory requirements. The result of the blood test was admitted into evidence.
The trial was set to begin March 7, 1983, but it was continued until March 14, 1983, at Sanchez' request. Deputy Backous had planned a vacation to Mexico for the latter date so the prosecution moved to preserve her testimony by videotaped deposition to be conducted on the original trial date. The motion was granted notwithstanding Sanchez' offer to continue the trial date to a more convenient time. All prosecution witnesses whose testimony would be relevant to the deposed testimony were made available to Sanchez before the deposition. All parties were present at the deposition over which the trial judge presided, and defense counsel cross examined Deputy Backous, who testified under oath. The trial court, over objection, admitted the videotape at trial in lieu of Deputy Backous' live testimony.
A photograph of the deceased, taken after she had been extricated from the car, was admitted over objection that it was cumulative and unduly prejudicial. Sanchez' offer of evidence of other accidents in the county that night in order to show hazardous driving conditions was rejected on the basis of lack of materiality.
The court rejected Sanchez' proposed instructions that required unanimity on at least one of the alternative means of committing negligent homicide before a guilty verdict could be returned.
Sanchez first argues that the result of the compulsory blood test should have been excluded because he was not notified by the arresting officer at the time the compulsory test was administered that he had a right to an independent blood test. Because of the delayed notice, Sanchez contends that he was denied the opportunity to procure competent evidence to rebut the results of the State's blood alcohol test.
RCW 46.20.308(1) requires that an arresting officer shall inform the arrestee that he has a right to an additional alcohol test by a qualified person of his choosing. The purpose is to protect defendant's right to proof, and it is a statutory, rather than a constitutional, right. State v. Turpin, 94 Wash.2d 820, 620 P.2d 990 (1980). Because of the serious nature of the negligent homicide charge, as well as the transiency of evidence of intoxication, it is crucial that defendant's right to develop evidence which may rebut that presented by the State be protected. State v. Turpin, 94 Wash.2d at 826, 620 P.2d 990. Therefore, notice of the arrestee's right to an independent test must be given at a time when he would have a reasonable opportunity to develop evidence of his state of intoxication or lack thereof at the time of the offense. Here, testimony of a toxicologist on the rate of absorption and dissipation of alcohol in the blood stream during the interval after the earlier test established that, had Sanchez elected to procure an independent test after Treverthon notified him of this right, the results of such a test could have cast considerable doubt on the accuracy of the compulsory test if indeed it was erroneous. It is true Sanchez, through his expert, disputed the relevance of the average rate of dissipation, relied on by the State's toxicologist since it would not necessarily apply to Sanchez. However, even if we accept the outer limits of the rate of dissipation of alcohol as testified to by Sanchez' expert, his challenge does not undermine the potential value of a later test that Sanchez might have elected to procure. Assuming the compulsory test accurately showed .19 percent blood alcohol level, a later test would have been taken well within the time span when Sanchez' blood would have shown a significant alcohol concentration. The level of alcohol, or lack thereof, in Sanchez' blood at the critical time could have been determined by using the rate of dissipation most favorable to Sanchez (or Sanchez' actual rate of dissipation if available) in extrapolating from the results of the later test. Such a test would either confirm or dispute the earlier test. Sanchez was thus afforded the protection of RCW 46.20.308(1). The trial court did not err in admitting the results of the compulsory blood test.
Sanchez next contends that the trial court violated his Sixth Amendment right to confrontation by admitting Deputy Backous' videotaped deposition. Because we find that the State failed to show unavailability of the witness as required by ER 804(b)(1) and CrR 4.6, we find it unnecessary to reach the constitutional issue.
While CrR 4.6 authorizes the court to order a deposition before trial if the court has reason to believe that a prospective witness may be unavailable at trial, its admissibility is governed by the Rules of Evidence. CR 4.6(d). Such rules require a showing of unavailability of the declarant before the declarant's deposition testimony containing statements otherwise proscribed by the hearsay rule may be admitted. ER 804(b)(1).
Although technology for preserving testimony by a videotaped deposition may present a scene similar to the live testimony before a jury, reflecting body language, demeanor and the like, such testimony is not tantamount to live testimony and when offered to prove the truth of the matters asserted and not excluded or excepted from the rule is clearly hearsay. Such is the case before us.
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...according to the particular facts of each case. 1 State v. Aaron, 49 Wash.App. 735, 740, 745 P.2d 1316 (1987). In State v. Sanchez, 42 Wash.App. 225, 711 P.2d 1029 (1985), the defendant's trial was set for March 7, but was continued at the defendant's request until 1 week later. A deputy wh......
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...Sanchez, In re Marriage of, 33 Wn. App. 215, 654 P.2d 702 (1982) . . . . . . . . . . . . . . . . 9.06[2]; 54.02 Sanchez; State v., 42 Wn. App. 225, 711 P.2d 1029 (1985). . . . . . . . . . . . . . . . . . . . .22.06[12] Sanders; State v., 66 Wn. App. 380, 832 P.2d 1326 (1992) . . . . . . . .......
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