[Copyrighted Material Omitted]
Gerald R. Fuller, Grays Harbor Co. Pros. Ofc., Montesano, WA, for Appellants.
Lise Ellner, Attorney at Law, Vashon, WA, for Respondents.
[177 Wn.App. 752] ¶ 1 The State appeals the trial court's dismissal of a felony driving under the influence of alcohol (DUI) charge against Roberta D. Mashek under RCW 46.61.502(6). The State argues that (1) the trial court erred when it concluded that the State failed to comply with the 15-minute observation requirement under RCW 46.61.506(4)(a)(ii) and (iii) before administering Mashek's breath alcohol test, (2) the trial court erred when it concluded that Mashek's 1994 DUI assault conviction under former RCW 46.61.522(1)(b) (1983) was not a prior vehicular assault DUI conviction for the purposes of RCW 46.61.502(6) and dismissed the felony DUI charge, and (3) the trial court abused its discretion when it granted Mashek's motion to prohibit the State's proposed drug recognition expert from testifying about field sobriety tests.
¶ 2 We hold that the trial court erroneously required continuous visual observation of the subject of a breath [177 Wn.App. 753] alcohol test under
RCW 46.61.506(4)(a)(ii) and (iii). Therefore, we reverse and remand for the trial court to determine whether the State complied with RCW 46.61.506(4) (a)(ii) and (iii) in accordance with this opinion. We also reverse the trial court's dismissal of the felony DUI charge and remand for further proceedings. Finally, we affirm the trial court's exclusion of the State's proposed drug recognition expert.
¶ 3 On February 6, 2011, at around 9:00 pm, Deputy Sheriff Jason Wecker observed a car driving toward his patrol vehicle in the middle turn lane down Main Street in Elma, Washington. The car drove through an intersection without turning and swerved into the lane of oncoming traffic directly toward Wecker, who had to turn to the right to avoid hitting the car.
¶ 4 Wecker pulled the car over. He contacted the car's driver, Mashek, and noticed that her eyes were red and droopy and he smelled intoxicants coining from her car. Mashek consented to perform standardized field sobriety tests. After Mashek performed the tests, Wecker concluded that she was intoxicated, arrested her for DUI, and read her Miranda  rights. After speaking with her attorney, Mashek consented to undergo a breath alcohol test.
¶ 5 In order for a breath alcohol test to be admissible in a prosecution for DUI, the State must present, among other elements, prima facie evidence that the person being tested did not vomit, eat, drink, smoke, or have any foreign substances in her mouth for 15 minutes before the test. RCW 46.61.506(4)(a)(ii), (iii). During the 15 minutes before the test, Mashek was seated at a table in the testing room with Wecker, who sat directly across from her for the majority of that time. Before the 15-minute period began, Wecker asked Mashek if she had any foreign substances in [177 Wn.App. 754] her mouth, and she replied that she had a tongue ring, which she subsequently removed. Wecker did not observe Mashek eating, drinking, or smoking and there was no food or drink in the room during the 15-minute period, but Mashek had an electronic cigarette and some mints that Wecker did not take from her during his search. The process leading up to Mashek's test was videotaped, and the videotape revealed that Wecker did not visually observe Mashek for a 3-minute period during the 15 minutes leading up to the breath test because his body was positioned away from her while he was setting up the testing machine.
¶ 6 Wecker administered two tests. The first showed a blood alcohol level of .118 grams per milliliter, and the second showed a blood alcohol level of .116 grams per milliliter. The State charged Mashek with felony DUI, RCW 46.61.502(6), because she had been convicted of vehicular assault DUI under former RCW 46.61.522(1)(b) in 1994.
¶ 7 Mashek moved to suppress the results of the breath alcohol test because Wecker failed to visually observe her for part of the 15-minute period preceding the test. She
argued that she put her head below the desk where Wecker [177 Wn.App. 755] could not see her and that Wecker failed to subsequently check her mouth. Mashek also argued that there were multiple occasions on which she put her hands to her mouth and face and Wecker did not see her. The trial court granted the motion to suppress the results of the breath alcohol test. Although the trial court found that " [d]uring the observation period, Ms. Mashek did not put any foreign substances into her mouth," it concluded that Wecker failed to comply with RCW 46.61.506(4)(a) because he did not observe Mashek for a 3-minute span of the 15-minute period, and, thus, the results of the breath alcohol test were not admissible at trial.
¶ 8 On October 19, 2011, Mashek moved to (1) exclude the results of the breath alcohol tests because they had previously been suppressed, (2) dismiss the charge of felony DUI because the vehicular assault DUI statute under which Mashek was previously convicted differed from the vehicular assault DUI statute in effect at the time the Legislature enacted the felony DUI statute, and (3) exclude testimony of the State's proposed drug recognition expert on field sobriety tests. The trial court agreed with Mashek and ordered that (1) the State could not use the breath alcohol test results at trial for any purpose; (2) Mashek's prior conviction for vehicular assault DUI was not a prior vehicular assault conviction within the meaning of RCW 46.61.502(6), and, thus, dismissed the felony DUI charge against Mashek; and (3) the State was prohibited from calling a drug recognition expert to testify regarding the effects of alcohol as it related to field sobriety tests. The State appeals the trial court's order excluding the breath alcohol test results, dismissing the felony DUI charge against Mashek, and excluding the State's proposed drug recognition expert testimony.
[177 Wn.App. 756] ANALYSIS
I. STANDARDS OF REVIEW
¶ 9 We review a trial court's order on a suppression motion to determine whether substantial evidence supports the challenged findings of fact and whether those findings support the trial court's conclusions of law. State v. Bliss, 153 Wash.App. 197, 203, 222 P.3d 107 (2009). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the finding's truth. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). " Credibility determinations are for the trier of fact and are not subject to appellate review. We must defer to the [trier of fact] on issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence." State v. Liden, 138 Wash.App. 110, 117, 156 P.3d 259 (2007) (citation omitted). Unchallenged findings of fact are verities on appeal. State v. O'Neill, 148 Wash.2d 564, 571, 62 P.3d 489 (2003).
¶ 10 Whether RCW 46.61.506(4)(a) requires continuous visual observation and whether a vehicular assault DUI conviction under former RCW 46.61.522(1)(b) is a prior vehicular assault DUI conviction for the purposes of RCW 46.61.502(6) are matters of statutory interpretation, questions of law that we review de novo. State v. Haddock, 141 Wash.2d 103, 110, 3 P.3d 733 (2000). " In interpreting a statute, our fundamental objective is to ascertain and carry out the legislature's intent." State v. Gray, 174 Wash.2d 920, 926, 280 P.3d 1110 (2012). If the plain language of the statute is unambiguous, we enforce the statute according to its plain meaning. State v. Armendariz, 160 Wash.2d 106, 110, 156 P.3d 201 (2007). The plain meaning of an undefined statutory term can be discerned from the dictionary definition of the term. Estate of Haselwood v. Bremerton Ice Arena, Inc., 166 Wash.2d 489, 498, 210 P.3d 308 (2009). We also determine the plain meaning of a statutory provision from the general context of the statute, related provisions, [177 Wn.App. 757] and the statutory scheme as a whole. State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005).
¶ 11 Because it is an evidentiary ruling, we review a trial court's decision to admit or exclude drug recognition expert testimony for abuse of discretion. State v. Baity, 140 Wash.2d 1, 9, 991 P.2d 1151 (2000). Thus, we reverse only if the trial court's exercise of discretion was manifestly unreasonable or based on untenable grounds or
reasons. State v. Lormor, 172 Wash.2d 85, 94, 257 P.3d 624 (2011).
II. OBSERVATION REQUIREMENT UNDER RCW 46.61.506(4)(A)
¶ 12 The State argues that the trial court erred when it concluded that Wecker failed to comply with the observation requirements of RCW 46.61.506(4)(a)(ii) and (iii) when he failed to visually observe Mashek for 3 minutes of the 15-minute observation period. The State contends that the officer's observation was adequate because such observation need not be strictly visual, but, rather, can be a combination of other senses, and because the video recording was prima facie evidence that Mashek did not vomit, eat, drink, or smoke for 15 minutes before the test. Mashek responds that the officer's failure to visually observe her for 3 minutes of the observation period constituted noncompliance with the statutory observation requirement and that a video recording cannot be substituted for direct, ...