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State v. Duffy

May 13, 1997

STATE OF WASHINGTON, APPELLANT,
v.
BRION THOMAS DUFFY, RESPONDENT.



Appeal from Superior Court of Spokane County. Docket No: 95-1-01828-0. Date filed: 01/26/96. Judge signing: Hon. James M. Murphy.

Authored by Frank L. Kurtz. Concurring: Dennis J. Sweeney, Philip J. Thompson.

The opinion of the court was delivered by: Kurtz

KURTZ, J. After a police officer stopped his squad car to investigate what he believed to be a domestic violence situation involving Brion and Kim Duffy, Mr. Duffy drove off with the officer in pursuit and eventually collided with another vehicle. Mr. Duffy was apprehended and booked into jail on charges of eluding an officer, and driving while intoxicated (DWI). The city attorney subsequently decided not to prosecute and referred the matter to the county prosecutor. Charges of attempting to elude, DWI, and hit-and-run attended were filed in superior court. Mr. Duffy's motion to dismiss these charges was granted. The State appeals, contending the court erred in dismissing the DWI and hit-and-run charges based on a violation of speedy trial rights and in dismissing the eluding charge based on a finding of no probable cause for the initial stop. We affirm the dismissal of the hit-and-run attended and driving while intoxicated charges and reverse the dismissal of the charge of attempting to elude.

FACTS

On April 9, 1995, Officer Brian Hamond of the Spokane Police Department was on duty, in uniform, and driving a marked squad car. At approximately 2:22 a.m. he was responding to an accident report when he noticed two cars stopped on the east side of Lincoln Street south of First Avenue. Mr. Duffy was standing at the open door of the rear car talking to a woman in the driver's seat. Officer Hamond stopped in the middle of the road and rolled down his window to investigate. As he rolled down his window, he thought he heard arguing or "angry voices" coming from the car. When Officer Hamond asked if anything was wrong, Mr. Duffy told him everything was fine and they had a minor accident. Mr. Duffy also identified the other driver as his wife.

Officer Hamond testified Mr. Duffy stood between him and the driver of the other car and Mr. Duffy would not step aside to let Officer Hamond see the driver. Unable to see the driver and concerned this might be a domestic incident, Officer Hamond then turned on his safety flashers and backed up behind the two vehicles. Ms. Duffy subsequently testified there had been no accident, Officer Hamond had been able to see her face, and that she had told him that everything was fine.

As Officer Hamond was moving his squad car, Mr. Duffy drove off in his car and the second car started to follow. The officer drove up ahead of the two vehicles and placed his car diagonally across First Avenue. Mr. Duffy then drove around the squad car and accelerated away at a high rate of speed. Officer Hamond activated his siren and pursued. Officer Hamond saw Mr. Duffy's vehicle cut off and collide with another vehicle that was being driven on First Avenue. The officer continued to pursue Mr. Duffy north on Wall Street at a high rate of speed. On Wall Street past Sprague Avenue, Mr. Duffy drove between two portable barriers placed to stop traffic in a construction zone and had to stop because of heavy equipment parked on Wall Street at Riverside Avenue. Mr. Duffy was apprehended after a chase on foot.

Mr. Duffy was booked into the jail on charges of eluding an officer and was also given a citation charging him with DWI in the Spokane municipal court. He did not sign the citation. On April 11, Mr. Duffy's attorney filed a written appearance in the municipal court and waived arraignment. Mr. Duffy was given an arraignment date of April 24. The city attorney decided not to prosecute the DWI charge and referred the matter to the county prosecutor. A letter was sent to Mr. Duffy and to his attorney notifying them the city "declined to prosecute," the April 24 court date was cancelled, and the case had been referred to the county prosecutor.

The municipal court file indicates the case was filed April 10 and closed April 20. The case was referred to the county prosecutor on August 9. Charges of attempting to elude, DWI and hit-and-run attended were filed in superior court on August 21. Mr. Duffy filed motions to dismiss all three charges on the basis of the speedy trial rule and to dismiss the eluding charge for lack of probable cause to stop.

The court dismissed the DWI charge and the hit-and-run charge, finding that no order of dismissal had been entered in municipal court and that these misdemeanors should be dismissed for violation of Mr. Duffy's right to a speedy trial. The felony charge of eluding was not dismissed under the speedy trial rationale as the court concluded that the municipal court did not have jurisdiction over this charge. A hearing was then held on the issue of probable cause. The court found the officer lacked probable cause to detain or arrest Mr. Duffy prior to the pursuit and dismissed the attempt to elude charge on that basis.

DISMISSAL OF THE CHARGE OF ATTEMPTING TO ELUDE

The State contends the order dismissing the eluding charge is based on the erroneous assumptions the officer's signal to stop must be legally correct and Mr. Duffy's response to an alleged improper seizure can be suppressed as fruit of an unlawful seizure. The State asserts the issue of whether or not the officer had probable cause to stop Mr. Duffy is irrelevant because RCW 46.61.024 does not mandate that the attempted stop be legal. Moreover, public policy does not permit an illegal response to an alleged illegal seizure.

The statutory provision defining the crime of attempting to elude reads in part as follows:

Any driver of a motor vehicle who wilfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving ...


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