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
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.
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.
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 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.
City charged Kaufman with DUI. 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
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.
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.
redirect examination, the City had the following exchange
[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.
[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
[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.
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
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.
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 ...