Argued May 29, 2014.
Steven J. Tucker, Prosecuting Attorney, and Andrew J. Metts III and Mark E. Lindsey, Deputies, for petitioner.
Eric J. Nielsen and Dana M. Nelson (of Nielsen Broman & Koch PLLC ); and Jennifer L. Dobson, for respondent.
Ryan B. Robertson, Briteney A. Mercer, and Theodore W. Vosk on behalf of Washington Foundation for Criminal Justice, amicus curiae.
Jennifer P. Joseph on behalf of Washington Association of Prosecuting Attorneys, amicus curiae.
AUTHOR: Chief Justice Barbara A. Madsen. WE CONCUR: Justice Charles W. Johnson, Justice Charles K. Wiggins, Justice Sheryl Gordon McCloud, Justice Mary I. Yu. AUTHOR: Justice Susan Owens. WE CONCUR: Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Steven C. Gonzá lez.
[182 Wn.2d 193] ¶ 1 The arresting trooper in this DUI (driving under the influence) trial testified that he had " no doubt" that the defendant was impaired based solely on a [182 Wn.2d 194] horizontal gaze nystagmus (HGN) test. We hold that the testimony was an improper opinion on guilt and affirm the Court of Appeals.
¶ 2 Washington State Patrol Trooper Chris Stone saw a truck, driven by Ryan Quaale, speed by in a 25-mile per hour zone on a residential street. Trooper Stone's radar captured Quaale's speed at 56 miles per hour. Trooper Stone activated the lights on his patrol car and attempted to pull the truck over. In response, Quaale turned off his truck's headlights and accelerated.
¶ 3 Trooper Stone pursued. Quaale lost control and overshot a corner, skidding into a homeowner's yard before he regained control and sped away for several more blocks. After Trooper Stone activated his siren, Quaale pulled the truck over and stopped. Quaale exited his truck but did not attempt to flee on foot. As a part of standard pursuit protocol, Trooper Stone ordered Quaale to the ground and handcuffed him. As he approached Quaale, Trooper Stone smelled a strong odor of " intoxicants" on Quaale's breath. Partial Verbatim Report of Proceedings (RP) at 12.
¶ 4 Trooper Stone then performed the HGN test on Quaale. The HGN test is a routinely used field sobriety test in which the administrator tells the subject to follow a pen or fingertip with his or her eyes as the administrator moves the stimulus from side to side. After consuming alcohol, a person will have difficulty smoothly following the stimulus; the person's eyes will jerk or bounce as they move from side to side. Trooper Stone testified that in his opinion, the HGN test is very important to determining impairment because, unlike the walk the line test, which a person can practice, the HGN test measures an involuntary reflex. Id. at 27. Trooper Stone did not perform any other sobriety tests on Quaale in the field.
¶ 5 During the HGN test, Trooper Stone observed Quaale's eyes bounce and have difficulty tracking the stimulus. Trooper [182 Wn.2d 195] Stone placed Quaale under arrest for DUI, reckless driving, and attempting to elude. At the station, Trooper Stone informed Quaale of the implied consent warnings for a breath test. Quaale refused to take the test.
¶ 6 Quaale was charged with attempting to elude a police vehicle and with felony DUI. The DUI was charged as a felony because Quaale had been previously convicted of vehicular homicide while under the influence. RCW 46.61.502(6)(b)(i).
¶ 7 Quaale was tried twice. At the first trial, the jury convicted him of attempting to elude but could not agree on a verdict for the DUI charge. During a second trial on the DUI charge, the State concluded its direct examination of Trooper Stone with the following questions:
Q. In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not Mr. Quaale's ability to operate a motor vehicle was impaired?
[Defendant's objection that the question goes to the ultimate issue is overruled]
Q. ... Did you form an opinion?
A. Absolutely. There was no doubt he was impaired.
RP at 33.
¶ 8 In closing, the State argued that the odor of intoxicants and Quaale's erratic driving supported its theory of driving while impaired by alcohol, but the State primarily relied on the HGN test. Indeed, during its rebuttal, in response to the defense explanation for the odor of intoxicants, the State said, " The horizontal gaze nystagmus is not caused by alcohol that he may have spilled on his clothes; it is what is inside your body. The eyes in this case are more than the window to the soul; they are the window to his intoxication level." Clerk's Papers (CP) at 153-54.
[182 Wn.2d 196] ¶ 9 The State also remarked on Quaale's revoked license during closing in violation of the court's ruling. The jury found Quaale guilty of DUI.
¶ 10 On appeal, Quaale argued that the trooper's testimony amounted to an improper opinion on guilt. He also argued that the prosecutor committed misconduct when she commented on his revoked license and that the trial court improperly denied a motion to dismiss under CrR 8.3(b) alleging " governmental misconduct whe[re] there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial." The Court of Appeals reversed Quaale's DUI conviction, holding that the trooper's opinion testimony violated Quaale's " constitutional right to have a fact critical to his guilt determined by the jury." State v. Quaale, 177 Wn.App. 603, 617-18, 312 P.3d 726 (2013). The Court of Appeals ordered a new trial and did not reach the other issues that Quaale raised, including the prosecutor's
misconduct. Id. at 619. The State filed a petition for review regarding the opinion testimony issue, which we granted.  State v. Quaale, 179 Wn.2d 1022, 320 P.3d 719 (2014).
¶ 11 We review decisions to admit evidence using an abuse of discretion standard. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). The trial court is given considerable discretion to determine if evidence is admissible. Id. " Where reasonable persons could take differing views regarding the propriety of the trial court's actions, the trial court has not abused its discretion." Id. However, the trial court has abused its discretion on an evidentiary [182 Wn.2d 197] ruling if it is contrary to law. State v. Neal, 144 Wn.2d 600, 609, 30 P.2d 1255 (2001). " An abuse of discretion exists '[w]hen a trial court's exercise of its discretion is manifestly unreasonable ...