Shields, A.c.j. Munson and Thompson, JJ., concur.
Michael Miller was convicted of vehicular homicide. He appeals, contending there was insufficient evidence he committed the crime, the court gave an unacceptable instruction on the legal definition of vehicular homicide, and the court erred in refusing to suppress the blood sample taken from him at the hospital. We affirm.
In the early hours of December 7, 1988, a 2-car accident occurred on Highway 395 just north of Spokane, which resulted in the death of Dorothy Garland. The actual facts of the accident are in dispute.
Muriel Konen was a passenger in the 1980 Dodge Omni driven by Ms. Garland, traveling southbound on the highway. Meanwhile, Michael Miller was traveling northbound in his 1968 Dodge van. Ms. Konen testified visibility was good, there was no problem observing the center line, the Omni was traveling 45 m.p.h.,*fn1 and was completely in the southbound lane. She suddenly noticed what she thought was a motorcycle, approaching in her southbound lane. She realized just before impact the vehicle was a van with one headlight missing.
Mr. Miller testified there was thick fog in the area, and he was traveling about 50 m.p.h. when he suddenly noticed headlights more than halfway over the center line in his
northbound lane. He claims he veered to the left, the Omni began turning back into its proper lane, he had his low beams on, and both headlights were working. After impact, both vehicles came to rest in the southbound ditch.
Trooper Kermit Gagner was the first officer to arrive at the scene. He testified there were patches of fog in the area, but visibility was good. He noted traction sand covered some of the center line. He found a collision scrub mark, gouge marks, and debris.*fn2 The scrub mark was near the center line in the southbound lane; the three gouge marks, which he determined were caused by the Omni, were in the middle of the southbound lane and formed an arc from right to left. The majority of the debris found in the southbound lane came from the Omni. He testified he originally believed the scrub mark near the center line was from the left front tire of the Omni. However, he changed his mind once he reconstructed the accident on paper and concluded the mark came from the right rear tire of the van. Under either scenario, he was of the opinion the van was in the wrong lane, and the Omni did not cross the center line at any time.
Detective Powell Shoemaker testified he began working on the case hours later. He examined the van's headlights and determined both low beams worked, but the right high beam did not. He determined the right rear wheel of the van was in such condition it would lock up before the rest of the wheels when the brakes were applied. He believed the scrub mark was not caused by the left front tire of the Omni, but the right rear tire of the van. He therefore determined the van was "pretty much nearly all the way over the center line when it impacted with the Dodge Omni . . .".
Mr. Miller's expert witness, an accident reconstructionist, testified the accident could not have occurred the way the
police said it did. It was his opinion the damage on the Omni indicated the driver of the Omni turned to the right prior to impact; the scuff mark was made by the left rear tire of the van; both vehicles were in the northbound lane; and, therefore, the Omni was in the wrong lane. He also claimed there was no proof any of the headlights were out at the time of the accident. He further noted the State's theory the right high-beam headlight of the van was out, and the van was traveling in the wrong lane, would not coincide with Ms. Konen's testimony she believed the left high beam from the van was from a motorcycle traveling in its proper lane.
It was also revealed Mr. Miller had stopped at a bar prior to the accident and had consumed one 12-ounce beer and two 16-ounce beers. Patrolman Clark Indahl testified he interviewed Mr. Miller at the hospital and observed Mr. Miller's eyes were blood shot and watery, he had a thick coating on his tongue and a moderate odor of intoxicants. He admitted, however, he administered an alphabet field test on Mr. Miller, which Mr. Miller performed satisfactorily. Further, Mr. Miller's speech was good and he was cooperative. The officer also admitted bloodshot eyes could be caused by a number of reasons, including lack of sleep. Nevertheless, he gave his opinion Mr. Miller was under the influence of alcohol. A blood alcohol test ...