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State v. Sell

May 5, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
ROBERT D. SELL, APPELLANT.



Appeal from Superior Court of Snohomish County. Docket No: 93-1-00467-7. Date filed: 11/15/94. Judge signing: Hon. Joseph Thibodeau.

Authored by C. Kenneth Grosse. Concurring: Mary K. Becker, Ronald E. Cox.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- The dismissal of a traffic infraction due to the failure of the State to appear and present evidence does not preclude the State from presenting evidence of the conduct that gave rise to the infraction at a later hearing on the issue of probable cause to stop for driving under the influence.

A police officer observed Sell improperly cross the center line, causing another car to swerve. He pulled Sell over and detected signs of intoxication. The officer issued Sell a criminal traffic citation for driving under the influence and citations for improper lane change and driving without liability insurance. The swerve was the officer's only reason for stopping Sell, but Sell's blood alcohol level was .13 and .14.

Sell contested the lane change infraction in district court. Neither the State nor the officer attended this hearing. Because the police officer had failed to submit a signed report, a commissioner dismissed the citation. The court docket indicates: "THE INFRACTION NOT COMMITTED DUE TO LACK OF EVIDENCE." The district court then dismissed the driving under the influence charge on double jeopardy grounds. Sell appeals the superior court's reversal of the district court. We affirm the superior court.

It is well established that "collateral estoppel precludes only those issues that have actually been litigated and determined[.]" *fn1 Here, the issue regarding whether Sell made an improper lane change was not actually litigated since the State was not present at the hearing when Sell contested the citation. The district court dismissed the case because the police officer had not attached a report. Accordingly, collateral estoppel does not apply because the issue was not actually litigated.

Sell has also not demonstrated that other double jeopardy principles bar further prosecution. He relies on the "same conduct test" to make a double jeopardy argument but our Supreme Court has rejected this approach. *fn2 A person is only subject to double jeopardy when charged with separate offenses if the crimes are the same in law and in fact. This is the "same elements test." The elements are not the same if each statute requires an element the other does not, *fn3 as is the case here. *fn4 Sell was not subjected to the risk of double jeopardy.

Sell also raises several meritless procedural claims. These include his claim that the State did not timely file its RALJ appeal notice because it prematurely filed its notice after the district court's March 15 oral decision, but before the court's written decision. The State is not precluded from review because it prematurely appealed. Under RALJ 2.5(d), a premature notice of appeal filed after the announcement of the judgment is treated as final the day after entry of the court's decision. Additionally, Sell asserts that the district court did not announce its ruling on March 15. The record indicates otherwise, the court indicated its decision was final and that "it's the issue for appeal[.]" The docket reflects this oral ruling, stating that the district court ordered the charge dismissed. Finally, the State apprised the superior court sufficiently of the basis of its appeal in its notice, and RALJ 9.1 gives the superior court authority to reverse because of errors of law, as was the case here.

We affirm.

WE CONCUR:

Mary K. Becker

Ronald E. ...


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