Appeal from Superior Court of King County. Docket No: 94-2-20717-2. Date filed: 07/10/95. Judge signing: Hon. Carmen Otero.
Authored by Susan R. Agid. Concurring: C. Kenneth Grosse, Ronald E. Cox.
The opinion of the court was delivered by: Agid
AGID, J. -- The State revoked David Eagleson's driver's license because he refused to take a breath test. He contends that the trial court erred when it affirmed because the arresting officer did not have a reasonable belief that he was driving while intoxicated. Although the trial court erred in relying on the fellow officer rule, the arresting officer had independent grounds for believing Eagleson was intoxicated. We therefore affirm.
On March 17, 1994, Officer S.L. Shirley stopped David Eagleson for speeding. After some investigation, Shirley contacted Trooper C.D. Old and told him that Eagleson might be intoxicated. Old arrived at the scene and took over based on the information Shirley provided. Old observed that Eagleson had red, watery eyes and that his speech was slow and slurred. He also smelled a strong odor of alcohol on Eagleson's breath. When Old asked Eagleson if he had been drinking, he replied that he had "two or three beers" that evening. Based on these observations, Old explained the field sobriety tests to Eagleson and asked him if he would be willing to perform them. Eagleson did not respond and "stared into open space." Old repeated the question and asked Eagleson if he wanted to take a portable breath test. He explained that test and, again, got no response.
Based upon his own observations and the information provided by Officer Shirley, Old believed that Eagleson was severely impaired by alcohol. He placed Eagleson under arrest for DWI and transported him to the Kent Jail. Once there, Old read Eagleson his Miranda *fn1 rights and the informed consent warning before he asked Eagleson to submit to a breath test. Eagleson signed the informed consent form but refused to take the test. Based on his refusal, the Washington State Department of Licensing revoked Eagleson's driver's license. He appealed the revocation and, at trial, the State called Trooper Old as its only witness. Old testified to his own observations as well as the information provided by Shirley. Eagleson objected to Old's testimony about Shirley's observations as hearsay. The court granted a blanket objection to all testimony about what Shirley had observed but overruled the objection, stating that the testimony was admissible hearsay under the "fellow officer rule." The court found that Old had a reasonable belief that Eagleson was driving while under the influence of alcohol and affirmed the Department's revocation of Eagleson's driving privileges.
Eagleson contends that the trial court relied on inadmissible hearsay without which it could not have found that Old had a reasonable belief that he was driving under the influence of alcohol. Absent the arresting officer's reasonable belief, the implied consent statute does not apply, and the Department of Licensing has no authority to revoke driving privileges. RCW 46.20.308(2).
When the trial court admitted testimony about what Shirley told Old citing the "fellow officer rule" as an exception to the hearsay rule, it misapplied that rule. It is not an exception to the hearsay rule, but a doctrine which allows the collective knowledge of officers investigating a crime to be pooled in making a determination of probable cause to arrest. State v. Maesse, 29 Wash. App. 642, 645-46, 629 P.2d 1349, review denied, 96 Wash. 2d 1009 (1981) (citing Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971)). Its only potential application in this case would be to determine whether Shirley had probable cause to stop Eagleson. The implied consent statute cannot apply if a driver was stopped unlawfully, or without probable cause. Campbell v. Department of Licensing, 31 Wash. App. 833, 837, 644 P.2d 1219 (1982). But probable cause is not an element the State must establish in order for the implied consent statute to apply. RCW 46.20.308. Instead, Eagleson must first raise lack of probable cause. Had he done so, the burden would shift to the State to establish that there was probable cause. See CrR 3.2A; 2 W. LaFave, Search and Seizure sec. 3.1(d) (3rd ed. 1996). Eagleson did not raise the issue of lack of probable cause below, and does not directly raise it on appeal. Thus, the "fellow officer rule" has no application in this case.
The only relevant question is whether Old, the arresting officer, had a reasonable belief that Eagleson was driving while intoxicated. Under the implied consent statute, an officer having a reasonable belief that the driver was driving while under the influence of alcohol may administer a breath test. If the driver refuses, his driving privileges will be revoked. RCW 46.20.308 (1)-(3); Campbell, 31 Wash. App. at 837. The State must establish the officer's reasonable belief by a preponderance of the evidence. O'Neill v. Department of Licensing, 62 Wash. App. 112, 116, 813 P.2d 166 (1991). Officer Shirley's statements were the only evidence offered to show that anyone saw Eagleson driving above the speed limit. Eagleson's speeding was not critical here. When the facts, circumstances, and reasonably trustworthy information within the arresting officer's knowledge are sufficient to warrant a person of reasonable caution in believing that the offense has been committed, the arresting officer need not actually see the defendant driving. Keefe v. Department of Licensing, 46 Wash. App. 627, 635, 731 P.2d 1161, review denied, 108 Wash. 2d 1018 (1987) (officer had probable cause to arrest driver for DWI when he found driver seated in the driver's seat of a car parked at a bus stop with a severely damaged front end). Trooper Old arrived at the scene to find Eagleson in the driver's seat of his car. Old observed Eagleson's slurred speech and red, watery eyes, smelled alcohol on his breath, and later observed him having difficulty getting out of his car. Therefore, even absent Shirley's statements, the State submitted sufficient evidence for the trial court to find, by a preponderance of the evidence, that Old had a reasonable belief that Eagleson was driving while impaired by alcohol.