State v. Trevino

• Decision Date: 12 October 1995
• Docket Number: 62225-6,Nos. 61890-9,s. 61890-9
• Citation: 127 Wn.2d 735,903 P.2d 447
• Parties: The STATE of Washington, Petitioner, v. Oscar C. TREVINO, Respondent. The STATE of Washington, Respondent, v. Tina M. MIESSE, Petitioner.
• Court: Washington Supreme Court

Page 735

127 Wn.2d 735

903 P.2d 447

The STATE of Washington, Petitioner, v. Oscar C. TREVINO, Respondent.

The STATE of Washington, Respondent, v. Tina M. MIESSE, Petitioner.

Nos. 61890-9, 62225-6.

Supreme Court of Washington, En Banc.

Oct. 12, 1995.

Jim Sweetser, Spokane County Prosecutor, Larry Steinmetz, Deputy, Spokane, for petitioner State.

Walter Waltz, Spokane, for respondent Oscar C. Trevino.

Ronald D. Ness & Associates, Ronald D. Ness, John L. Cross, Port Orchard, for petitioner Tina M. Miesse.

Russell Hauge, Kitsap County Prosecutor, Pamela Loginsky, Deputy, Rhonda Kalil, Deputy, Port Orchard, for respondent State of Washington.

ALEXANDER, Justice.

In this consolidated appeal, we are called upon to decide essentially one question: is suppression of breath analysis test results required, notwithstanding an absence of prejudice to a DUI suspect, when the arresting officer, prior to inquiring about or visually checking the contents of the suspect's mouth, either fails to (1) inform the suspect of his or her right to counsel pursuant to CrRLJ 3.1(c)(1), or (2) give the suspect an implied consent warning? We answer that question negatively, and, consequently, reverse the decision of the Court of Appeals Division Three, in State v. Trevino and affirm the Kitsap County District Court in State v. Miesse.

I. Facts

A. State v. Trevino

At approximately 12:13 a.m. on January 1, 1993, Spokane County Deputy Sheriff Randy Strzelecki observed an automobile being driven in excess of the posted speed limit. Based on this observation, Strzelecki stopped the speeding vehicle. Upon approaching the stopped car, Strzelecki almost immediately observed that the driver, Oscar C. Trevino, showed signs of impairment. Strzelecki, therefore, administered a field sobriety test to Trevino. Strzelecki concluded that Trevino did not perform well on the test and, consequently, at 12:24 a.m., he arrested Trevino and took him to the Public Safety Building in downtown Spokane. At about 1:02 a.m., Trevino was asked by Strzelecki if he had anything in his mouth. Trevino responded, "No." (Clerks Paper's at 67.) The deputy then checked Trevino's mouth for foreign objects preparatory to commencing the fifteen minute observation period that is to precede the taking of a sample of a suspect's breath on a breath analysis machine known as the BAC Verifier DataMaster. ¹ At 1:05 a.m., Trevino was advised, for the first time, of his right to counsel. This advice came as a part of a Miranda warning. ² At 1:09 a.m., Trevino was given the implied consent warning required by RCW 46.20.308. Trevino signed a form indicating that he had received and understood both warnings. ³ Shortly thereafter, Trevino consulted with an attorney by telephone. Trevino then breathed into the machine at 1:20 a.m. and at 1:23 a.m. Analysis of these breath samples disclosed that Trevino's blood alcohol concentration was 0.24.

Strzelecki issued Trevino a citation for violating RCW 46.61.502, driving under the influence. ⁴ Prior to a trial in the Spokane County District Court, Trevino's attorney moved to suppress evidence of the deputy sheriff's question as to whether Trevino had anything in his mouth, Trevino's response to that question, and any testimony by Strzelecki as to what he observed when he checked Trevino's mouth. A district court judge granted the motion and ordered suppression of the evidence, concluding that Trevino had not been properly informed of his right to counsel pursuant to CrRLJ 3.1(c)(1). ⁵

The State sought review of the district court's decision in Spokane County Superior Court by writ of certiorari. The superior court affirmed the district court. The State then obtained review of that decision in Division Three of the Court of Appeals. The court of appeals concluded that the deputy's inquiry of Trevino as to whether he had anything in his mouth and the checking of Trevino's mouth were both parts of the breath analysis test. Based on that determination, it held that the State's failure to inform Trevino of his right to counsel, pursuant to the provisions of CrRLJ 3.1(c)(1), before conducting any of the steps in the breath test, justified the trial court's suppression of evidence concerning Trevino's response to the deputy's question and the deputy's observations, notwithstanding an absence of prejudice to Trevino. We granted discretionary review of that decision.

B. State v. Miesse

Tina Miesse was involved in a one car accident in Kitsap County on August 8, 1993. At 7:03 p.m., shortly after the accident, a Kitsap County Deputy Sheriff arrived at the scene. Miesse was arrested for driving under the influence at 7:25 p.m. The deputy informed Miesse of her constitutional rights, including her right to counsel, and transported Miesse to Kitsap County Jail. At 8:16 p.m., nearly an hour after Miesse was arrested, the deputy checked Miesse's mouth and asked her if she had anything in it. ⁶ At 8:18 p.m., the arresting officer again advised Miesse of her constitutional rights. At 8:31 p.m., Miesse was given, for the first time, an implied consent warning. The officer told her that:

FURTHER, YOU ARE NOW BEING ASKED TO SUBMIT TO A TEST OF YOUR BREATH WHICH CONSISTS OF TWO SEPARATE SAMPLES OF YOUR BREATH, TAKEN INDEPENDENTLY, TO DETERMINE ALCOHOL CONTENT. YOU ARE NOW ADVISED THAT YOU HAVE THE RIGHT TO REFUSE THIS BREATH TEST; THAT IF YOU REFUSE, YOUR PRIVILEGE TO DRIVE WILL BE REVOKED OR DENIED BY THE DEPARTMENT OF LICENSING; AND THAT YOU HAVE THE RIGHT TO ADDITIONAL TESTS ADMINISTERED BY A QUALIFIED PERSON OF YOUR OWN CHOOSING AND THAT YOUR REFUSAL TO TAKE THE TEST MAY BE USED IN A CRIMINAL TRIAL.

(Clerks Paper's at 128.) Miesse then provided the deputy with two breath samples for analysis by the BAC Verifier DataMaster. The first sample was provided at 8:37 p.m., and the second three minutes later. Both tests revealed that Miesse had a blood alcohol concentration of 0.12. Miesse was charged in Kitsap County District Court with violating RCW 46.61.502.

Miesse moved in district court to suppress the breathalyzer test results. Her motion was denied. We took review of that determination directly from Kitsap County District Court. ⁷

II. Analysis

A. Trevino

The State asserts on appeal that the court of appeals erred in upholding the superior court's order affirming the district court's suppression of the evidence gathered prior to the deputy sheriff advising Trevino, pursuant to CrRLJ 3.1(c)(1), of his right to counsel. ⁸ The State contends, in that regard, that the court of appeals wrongly concluded that Trevino's right to be informed of his right to a lawyer attached before the deputy asked him if he had anything in his mouth and checked his mouth for foreign objects. It contends, alternatively, that even if Trevino's right under the rule to be advised of his right to counsel was violated, the evidence gathered by the deputy should not have been suppressed, absent a showing that Trevino was prejudiced by the rule violation.

1.

In support of its argument that Trevino need not have been informed of his right to a lawyer before the deputy asked him about the contents of his mouth or checked his mouth for foreign objects, the State relies to a large extent on our holding in Heinemann v. Whitman County, 105 Wash.2d 796, 718 P.2d 789 (1986). In that case we held that a DUI suspect has no right under JCrR 2.11(c) ⁹ to be advised of his or her right to counsel prior to the time an arresting officer administers a field sobriety test to the suspect. The Heinemann case is not persuasive. That is so because the defendant in that case was not in custody at the time the field sobriety test was conducted. Trevino, on the other hand, was arrested and was in custody before the deputy inquired if he had anything in his mouth and checked his mouth for foreign objects. ¹⁰ More to the point is State ex rel Juckett v. Evergreen Dist. Court, 100 Wash.2d 824, 675 P.2d 599 (1984), in which we held that when a person suspected of DUI is in custody, police officers must inform the person of his right to counsel before administering the breathalyzer test. ¹¹ Evergreen, 100 Wash.2d at 831, 675 P.2d 599.

Trevino asks us to affirm the court of appeals holding that the breath test commences when the arresting officer either inquires about the contents of the mouth or checks the suspect's mouth. If we were persuaded to do so, it would, of course, follow that the rule was violated, the advice required by CrRLJ 3.1(c)(1) not having been given to Trevino prior to the time those steps were taken. ¹² The State, not surprisingly, responds that the observation period and events leading up to the taking of the breath sample are not a part of the breath test.

The court of appeals, as we have noted, agreed with Trevino, concluding that the breath test began when the arresting officer inquired if Trevino had anything in his mouth and checked his mouth for foreign objects. Although, for reasons we set forth at greater length in State v. Miesse, we believe that inquiring about and checking the mouth are not part of the breath test, a resolution of that question is immaterial to this case. That is so because we are satisfied that Trevino's rights pursuant to CrRLJ 3.1(c)(1) were violated, regardless of whether or not checking the mouth and inquiring about the contents of the mouth are deemed to be part of the breath test.

Pursuant to CrRLJ 3.1(c)(1), an arresting officer is required to advise an arrested person "as soon as practicable" of his right to a lawyer. The rule provides, further, that the right shall accrue "as soon as feasible after the defendant has been arrested ". CrRLJ 3.1(b)(1) (emphasis added). Although the terms "as soon as practicable" and "as soon as feasible" are not defined in the rule, the Task Force Comment to Rule 3.1 suggests that this advice must be given "immediately" after the arrest. 4A Lewis H. Orland & Karl B. Tegland, Wash.Prac., Rules Practice...