DUI Conviction Reversed Due to Improper Opinion EvidenceJonathan Rands
Filed WA State Court of Appeals Division Two October 15, 2019: Appellant Court Reverses Conviction Of DUI Due To Improper Opinion Evidence By Officer And Improper Use Of Preliminary Breath Test (PBT).
This is a case, or an issue long over-due for some Appellant oversight. In reviewing the record of this case clearly show that the appeal from Municipal Court to the County Superior Court and the Superior Court denied the Defendant/Appellant claim.
The claim of the Defendant/Appellant was that the "evidence" in the form of the arresting officer testimony that a Portable Breath Test (PBT) was declined by the driver. This was a legal error. The case law in this area is clear, but somewhat case specific. The Trial Court and the Superior Court declined to follow this body of law and due to the effect the inadmissible evidence had on the outcome the Defendant/Appellant exercised another right and continued the appeal of the issues.
The Appeals Court, the next level if you will, did what the lowers courts did not; "dig in," and understand and apply the law. As mentioned above, the law applied by the Appeals Court was always there, but, in my opinion, the District, Municipal and Superior Courts of the Counties frequently do not want to do the deeper analyses. More importantly, in my opinion, they succumb to the perceived pressure that they need to be "tough in DUI."
This mindset is not the appropriate Judicial mindset, but since these Judges and Commissioners are human beings, and occupy elected positions, elected with greater scrutiny on their record than Appeal or Supreme Court Judges, human nature and self-preservation kicks in. Thus, the Appellant procedure, yet again, carries the day. Here is a brief review of the trial testimony and what the Appellant Court held in light of it all.
[Prosecutor]: So if you ask someone to do the field sobriety tests and they refuse to do that does that indicate . . . something to you?
[Officer]: Yes it usually shows me that they are under the influence because they don’t want the tests to fail.
[Prosecutor]: Same thing you offered the defendant PBT to see if there was alcohol in her system, she refused that, what does that indicate to you?
[Tyler]: That she didn’t want to take the tests because the result would show that she’s under the influence.
[Prosecutor]: And last thing is you offered the defendant a chance to give a breath sample on the BAC Datamaster and she forego giving a sample knowing her license would be suspended?
[Prosecutor]: Is that further evidence to you that she was under the influence on that date?
[Tyler]: It’s usually an indication yes.
Read the full document
The Court Of Appeals Wrote that: the City repeatedly commented on Kaufman’s refusal to submit to the PBT, FSTs, and the Datamaster breath test in its opening statement and closing arguments. The City suggested that Defendant/Kaufman’s refusal to perform these tests was the primary evidence that Kaufman had driven under the influence of intoxicants.
Kaufman argues, and the Court Of Appeals Agreed, that the trial court committed reversible error by admitting evidence of her refusal to take the PBT because she had a constitutional right to refuse to take this test and that admission of her refusal to take the test violated the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution. Kaufman also argues that the trial court erred when it allowed Officer Tyler to opine that Kaufman’s refusal to perform FSTs, the PBT, and the Datamaster breath test demonstrated her consciousness of guilt.
Significant to the case, is the fact that a person has a constitutional right to refuse a search, admission at trial of the person’s refusal to submit to the search violates the Fourth Amendment because it improperly penalizes the defendant for the lawful exercise of a constitutional right. Thus, if Kaufman had a constitutional right to refuse the search of her breath by use of a PBT because the test, if taken, would not have fallen under any recognized exception to the warrant requirement, her refusal to take such a test was inadmissible at trial.
A "breath test" under former RCW 46.20.308(2) does not include a PBT. The use of a PBT is governed exclusively by the Washington Administrative Code. A PBT is voluntary, and "participation" in it does not constitute compliance with the implied consent statute.
A PBT may only be used for establishing that a person has consumed alcohol and "establishing probable cause to place a person under arrest for alcohol related offenses." The City’s error was the fact that it ignores that the PBT is exclusively governed by ch. 448-15 WAC, not the implied consent scheme.
An officer may utilize the PBT in the determination of probable cause only if the procedures outlined in former WAC 448-15-030 are followed. Among other requirements, former WAC 448-15-030 requires the officer to advise the subject that the test is voluntary and that it is not an alternative to any evidential breath alcohol test.
This is yet another reason that refusing the test at the time of the request is a good idea.
Because of the right to decline the PBT outside of the Implied Consent Statute, PBT refusal evidence is NOT the same as evidentiary breath test refusal, and such evidence is admissible at trial.
Refusal of an evidentiary breath test is admissible evidence against the defendant under the implied consent statute because the defendant lacks a constitutional right to refuse the test as established by the case of Baird. In that instance, the State may comment on the refusal because the driver is not exercising a constitutional right in refusing to take the breath test, rather, the driver is merely exercising a statutory right to refuse, and the statute which grants a driver the right to refuse the test—the implied consent statute—further provides that said refusal is admissible in evidence against the driver in the event of a trial. A PBT is a different test, at a different time of the police contact, and a right of Constitutional Magnitude.
According to the Washington Caselaw/Common Law:
“Generally, no witness may offer testimony in the form of an opinion regarding the guilt or veracity of the defendant; such testimony is unfairly prejudicial to the defendant ‘because it invad[es] the exclusive province of the [jury].’”
See the case of State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001)(quoting Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993)). Furthermore, some opinions, "particularly expressions of personal belief, as to the guilt of the defendant, the intent of the accused, or the veracity of witnesses," are clearly inappropriate in criminal trials. See State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008). And it is a longstanding rule that "Improper opinion testimony" from a law enforcement officer may be especially prejudicial because the officer’s testimony "often carries a special aura of reliability." See Demery, 144 Wn.2d at 765.
Frequently, because information comes from a police officer it is believed, despite there being no basis in fact, science, or reality of the evidence and this is what the Court try and guard against.
In defending the error of law on appeal, the City argued that the while it may be an "error" this error was harmless beyond a reasonable doubt because Tyler’s testimony was "based on his training and experience" and the evidence presented and his testimony were simply explaining why someone may refuse to comply with a DUI investigation, which is a "straight-forward interpretation" and "any lay person could easily come up with the same inference."
This is the typical justification from the Government lawyers who prosecute these case and want misleading evidence before the jury. However, the Appeal Court held that: This error, like the erroneous admission of Kaufman’s refusal to submit to the PBT, warrants reversal. This is because at trial the City relied heavily on the inference of guilt arising from Kaufman’s refusal to perform any tests, which was bolstered by Tyler’s improper and prejudicial opinion testimony. Neither the City’s untainted evidence pointing to Kaufman’s intoxication nor the City’s untainted evidence tending to show that Kaufman exhibited impaired driving, was so overwhelming that it necessarily leads to a finding of guilt.
The Court a nice job of explaining the fact that how the Government prosecutor used the evidence in the exact way that was most harmful to the defendant and NOT in keeping with the rules of evidence and the notion of a fair trial.