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State v. Smith

September 19, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
RODGER SMITH, PETITIONER.



Appeal from Superior Court, Spokane County; 92-1-01147-7. Honorable Harold D. Clarke JR, Judge.

Authored by Philip A. Talmadge. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Richard B. Sanders, WE Concur

The opinion of the court was delivered by: Talmadge

EN BANC

TALMADGE, J. -- Rodger Smith almost ran into a state trooper head-on. The trooper detained him and he failed field sobriety tests given at the scene. The trooper then administered, with Smith's consent, a portable breath test (PBT), not approved by the state toxicologist. The trooper did not preserve any evidence of the PBT result. Smith was arrested for driving under the influence of alcohol or drugs (DUI), given his implied consent statutory warnings, and subsequently tested 0.12 for blood alcohol on the BAC Verifier DataMaster breathalyzer at Spokane's Public Safety Building.

Smith was convicted of DUI by a jury in Spokane County District Court. On appeal, he contends the DataMaster result is inadmissible as the "fruit of a poisonous tree," the inadmissible PBT result. Moreover, he argues he was denied due process because the PBT result was not preserved, thereby denying him the opportunity to cross-examine the trooper on the PBT result.

We affirm the Court of Appeals and uphold Smith's DUI conviction.

ISSUES

1. Did the trial court err in denying Smith's motion to suppress the DataMaster results?

2. Did the trial court err in precluding defense counsel from questioning Trooper Wiley about the PBT?

FACTS

On August 11, 1991, Trooper Richard A. Wiley was alone in his patrol car about 1:00 a.m. He was heading southbound on Monroe Road in Spokane when he observed a vehicle coming toward him veer over the center line into his lane. Trooper Wiley had to jerk his car to the right to avoid a collision. Trooper Wiley then made a U-turn and gave chase. The driver, Rodger Smith, stopped at a gas station. When Trooper Wiley approached Smith, he first noticed a "strong odor of intoxicants" on Smith's breath.

Clerk's Papers at 105. When Smith began looking for his license, registration, and proof of insurance, Trooper Wiley noticed "poor finger dexterity." Clerk's Papers at 105. He asked Smith if he would be willing to perform some sobriety tests. Smith agreed. When Smith exited his car, Trooper Wiley again noticed a strong odor of intoxicants and Smith's eyes were bloodshot and watery.

Trooper Wiley had Smith perform various field sobriety tests. Smith failed these tests, which included reciting the alphabet from a to z, walking a straight line, and standing on one leg with his arms at his sides while counting to 30 as fast as possible. Trooper Wiley concluded Smith was impaired.

Trooper Wiley then asked Smith to consent to a PBT, advising him the results were inadmissible in court. Smith consented to the test and Trooper Wiley administered it. Trooper Wiley obtained only a digital read-out on the PBT device. He preserved no written record of the result. Smith remembers seeing the result, but recalls ...


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