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City of Vancouver v. Kaufman

Court of Appeals of Washington, Division 2

October 15, 2019

CITY OF VANCOUVER, Respondent,
v.
MELISSA NICOLE KAUFMAN, Appellant.

          CRUSER, J.

         Melissa Kaufman was granted discretionary review of her municipal court conviction for driving under the influence (DUI). She argues that the trial court erred by admitting evidence of her refusal to submit to a preliminary breath test (PBT) and improper opinion testimony by a police officer. We agree and hold that the trial court erred in admitting evidence of Kaufman's refusal to submit to a PBT. We also accept the City of Vancouver's concession that the trial court erred in admitting improper opinion testimony, but hold that the City cannot prove beyond a reasonable doubt that the error was harmless. Accordingly we reverse and remand for further proceedings.

         FACTS

         At approximately 6:45 AM on March 11, 2016, Officer Keith Tyler of the Vancouver Police Department was patrolling within the city limits of Vancouver, Washington. Tyler observed Kaufman driving past his patrol car in an adjacent lane. Tyler visually approximated that Kaufman was driving between 25 and 28 miles per hour; the speed limit in that location was 20 miles per hour. Tyler turned his "warning" lights on, and Kaufman slowed her vehicle down. Tyler then observed Kaufman move her vehicle into a turn lane without using her turn signal for at least 100 feet before she made the turn. Tyler contacted Kaufman and asked for her license, registration, and proof of insurance. Tyler did not smell an odor of intoxicants on Kaufman at this time.

         When Tyler ran the registration of Kaufman's vehicle, he found that Kaufman had an outstanding misdemeanor warrant. Tyler returned to Kaufman's vehicle and arrested her on the warrant. The first time Tyler noticed an odor of intoxicants on Kaufman was when he placed her in handcuffs. Kaufman was upset and crying at that point. Tyler also noticed that her eyes were "a little bloodshot" and her eyelids were "a little droopy." Clerk's Papers (CP) at 214. Tyler decided he would begin a DUI investigation once they arrived at the jail.

         At the jail, Tyler offered to administer a PBT, which is a test he uses "to establish probable cause." Mat 215. Kaufman refused to take the test. Tyler then asked Kaufman if she would be willing to take a series of voluntary standardized field sobriety tests (FSTs), and she refused. Tyler read Kaufman her Miranda[1] rights and prepared a "Pre-arrest Observations" report. CP at 220. Tyler reported that Kaufman's eyes were "watery and bloodshot," her speech was a little slow but "fair," her face was "flushed," her coordination was "fair," she displayed mood swings, and her level of impairment was "slight." Id. at 220-21. Tyler then read Kaufman the implied consent warning for breath and asked Kaufman if she would submit to a Datamaster breath test. Kaufman refused.

         The City charged Kaufman with DUI.[2] Kaufman's case proceeded to trial in Vancouver Municipal Court. Kaufman brought a pretrial motion to exclude evidence of her refusal to submit to the PBT and the FST but the court ruled this evidence was admissible.[3]

         At trial, Tyler confirmed that Kaufman was not arrested for DUI. During an offer of proof made outside the presence of the jury, Tyler admitted that he did not have probable cause to believe Kaufman had driven under the influence of intoxicants at the time of her arrest on the unrelated warrant. Tyler also admitted that he had to make a decision "with very little information" because his observations at the scene were insufficient to support probable cause and Kaufman refused to perform the tests normally administered during a DUI investigation. Id. at 249.

         Tyler testified that Kaufman refused to submit to either the PBT or the Datamaster breath test or to perform FSTs. During cross-examination, Tyler was asked whether he gathered any further evidence of Kaufman's impairment at the jail, and he answered, "Any new no." Id. at 251. He said his investigation at the jail "reinforced" his observations about Kaufman's odor of alcohol, her bloodshot and watery eyes, and her flushed face. Id.

         On redirect examination, the City had the following exchange with Tyler:

[Prosecutor]: Counsel asked you if you [gathered any new] evidence . . . once the defendant was at jail. Is it evidence if someone's under the influence of alcohol if they refuse to do the field sobriety tests?
[Defense Counsel]: Objection.
[Court]: Overruled.
[Prosecutor]: So if you ask someone to do the field sobriety tests and they refuse to do that does that indicate . . . something to you?
[Tyler]: Yes it usually shows me that they are under the influence because they don't want the tests to fail.
[Prosecutor]: Same thing you offered the defendant PBT to see if there was alcohol in her system, she refused that, what does that indicate to you?
[Tyler]: That she didn't want to take the tests because the result would show that she's under the influence.
[Prosecutor]: And last thing is you offered the defendant a chance to give a breath sample on the BAC Datamaster and she forego giving a sample knowing her license would be suspended?
[Tyler]: Yes.
[Prosecutor]: Is that further evidence to you that she was under the influence on that date?
[Tyler]: It's usually an indication yes.

Id. at 251-52.

         The City repeatedly commented on Kaufman's refusal to submit to the PBT, FSTs, and the Datamaster breath test in its opening statement and closing arguments. The City suggested that Kaufman's refusal to perform these tests was the primary evidence that Kaufman had driven under the influence of intoxicants.

         The jury was given the following instructions related to DUI:

A person commits the crime of driving under the influence when he or she drives a motor vehicle while he or she is under the influence of or affected by intoxicating liquor.

Id. at 89; 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 92.01, at 290 (4th ed. 2016) (WPIC).

A person is under the influence of or affected by the use of intoxicating liquor if the person's ability to drive a motor vehicle is ...

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