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Court Rulings
STATE OF WASHINGTON State of Washington vs. Danny Shines, etal., No.: 16802901 Memorandum Opinion THIS MATTER came on for hearing before Judge James M. Riehl on March 19, 20 and 22, 2007 on Defense Motion to Suppress the admission of the field sobriety tests administered by the arresting officer in a charge of Driving Under the Influence. The State appeared through counsel, Kitsap County Deputy Prosecutor Jeffrey Jahns and the Defendant appeared personally and through counsel, Jeanette Dalton. For purposes of this Motion only, Ted W. Vosk appeared for the Defendant as well. Both parties requested all four elected Kitsap County District Court Judges to sit en banc for purposes of hearing testimony and argument as has been done in the past when issues have been raised in DUI cases that impact cases before each of the judges. It is the understanding of each of the four Judges that the following decision is their own decision individually and will be filed in each of the cases that have been filed in their respective departments on the same issues. There may be distinctions to be raised in each case depending on the facts presented. Attached as Exhibit A is a list of all cases joined for purposes of the issues presented. The Court heard the testimony of Dr. Citron, Dr. Hlastala and Robert LaPier and reviewed the pleadings, exhibits and documents and considered the legal memoranda and oral argument. The following is the decision of each of the elected judges who signed below. I. BACKGROUND Washington’s DUI statute, RCW 46.61.502, describes a single offense that a driver might commit by more than one means. A violation of 46.61.502 may be proven in two different ways — either by showing the defendant’s breath or blood alcohol concentration was at least 0.08 within two hours after the incident (sometimes called “per se”) or by other evidence, typically testimony, tending to show that the defendant was under the influence of alcohol and/or other drugs (sometimes called “other evidence”). RCW 46.61.502(1) states — (1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state: (a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW 46.61.506; or (b) While the person is under the influence of or affected by intoxicating liquor or any drug; or (c) While the person is under the combined influence of or affected by intoxicating liquor and any drug. Although the prosecution need only prove the occurrence of one alternative means beyond a reasonable doubt to convict a defendant of DUI, generally in breath or blood alcohol DUI situations the prosecution chooses to proceed with both the per se 0.08 prong and the under influence prong of the statute. The prosecution may decide to proceed under both DUI alternative means because jurors need not be unanimous as to each alternative mean as long as sufficient evidence supports each of the means relied on by one or more jurors. A defendant’s physical condition is by definition a critical element of the crimes of DUI or physical control. For many years, police officers have faced the dilemma of determining at roadside whether a driver is impaired as defined by statute to a degree that rises to the level of probable cause to arrest. In addition to observations of the defendant’s behavior at the time of the stop, law enforcement has continually attempted to refine and quantify defendants’ performance on roadside tests. These became known as field sobriety tests or divided attention tests. These tests ranged from having the defendant recite the alphabet to various balance tests. For years throughout the country, the type of tests and training on conducting those tests were left to officer’s discretion. In an attempt to provide more accurate and reliable tests results, law enforcement looked to develop standardized tests. The Standardized Field Sobriety Tests (SFST) were developed pursuant to research commissioned by the National Highway Traffic Safety Administration (NHTSA) beginning in the 1970s. NHTSA is an agency within the Federal Department of Transportation (DOT) and is responsible for reducing deaths, injuries and economic losses resulting from motor vehicle crashes. In fulfilling its responsibilities NHTSA assists states and local communities to reduce the threat posed by drunk drivers. It conducts research on driver behavior and traffic safety in developing the most efficient and effective means to bring about safety improvements. These activities include funding studies on field sobriety tests and training law enforcement officers in the administration of the standardized field sobriety test battery. The development of the SFSTs consisted primarily of six studies beginning in 1975. From the beginning, NHTSA commissioned the Southern California Research Institute for this purpose with Dr. Marcelline Burns as the principle investigator. The objectives of the initial study, reported in 1977, were three-fold: (1) to evaluate physical coordination tests to determine their relationship to intoxication and driving impairment; (2) to develop sensitive tests that would provide reliable evidence of impairment; and (3) to standardize the tests and observations. The investigators initially considered six primary tests (one leg stand, walk and turn, finger-to-nose, finger count, alcohol gaze Nystagmus, and tracing) and four alternate tests (Romberg balance, subtraction, counting backwards and letter cancellation). Studies were conducted under laboratory conditions and included tests which attempted to measure the relationship between the effects of alcohol on the performance of the test battery and the effects of alcohol on driving skills. It was an attempt to correlate an individual’s performance on the physical coordination tests with their ability to drive. Subsequent studies were performed as to the relationship between performance on SFSTs and impairment. The researchers made it clear that their analysis was defined strictly in terms of BAC levels and did not speak to the more difficult question of the individual’s driver’s impairment. Thus, impairment as used in the NHTSA studies refers to the BAC level and not to actual physical impairment. As a result of these extensive studies, eventually the SFSTs became a battery of three tests administered and evaluated in a standardized manner to establish probable cause as it relates solely to the approximate level of the BAC result and not to the physical impairment of the driver. These three tests are known as walk and turn, one leg stand and HGN. However, NHTSA in their student training manual also describes psychophysical tests as more than the three SFSTs. The manual states that all tests and observations by the officer are meant to assess a suspect’s mental and physical impairment. This assessment process actually begins as soon as the officer comes into face-to-face contact with the defendant (for example, fumbling with seat belt, window control or wallet, stumbling on exit of vehicle, odor of alcohol, bloodshot eyes, flushed face, unsteady gait or balance, leaning on the car or others, etc.). The manual further identifies the most significant psychophysical tests are the three scientifically validated structured tests, but the manual in no way discounts the officer’s other observations of physical and mental abilities. The three defense witnesses all testified that SFSTs can be relevant on the issue of whether the subject’s ability to drive is affected in any appreciable degree. Furthermore, NHTSA does not approve or certify any field sobriety tests. NHTSA has sponsored several validation studies over the past two decades, and created curricula to train officers in a standard procedure to make sure the three validated tests are consistently administered in order to assist the officer in predicting over-limit BAC tests results under the per se DUI prong for purposes of establishing probable cause for arrest. In other words, NHTSA has certified curricula. However, NHTSA does not certify sobriety tests or officers. II. ISSUES The defense motion is to suppress those field sobriety tests that were not performed according to NHTSA standards or to Washington State Patrol standards. The other motion raised by the defense is to suppress the officer’s opinion as to level of intoxication based upon the failure to perform the SFSTs according to the standards. In reaching these issues, the court must also consider whether an officer’s lay opinion is admissible under ER 701 regarding the physical impairment of the defendant based upon the officer’s training and experience, and the officer’s observations of the defendant’s physical appearance, behavior and psychophysical FST performance including but not limited to the three SFSTs as described above. Restrictions on lay opinion are based upon the traditional belief that a lay witness is no better equipped than a juror to arrive at an opinion or conclusion from the facts known to the witness. Consequently a lay witness should normally relate facts to the jury and let the jurors form their own opinions and conclusions. It has been well-settled in Washington for over 100 years that a witness may explain conditions and conduct the witness has observed about another’s intoxication, and then state an opinion concerning that person’s level of intoxication or sobriety. See SB Karl B. Tegland, Washington Practice; EVIDENCE LAW AND PRACTICE § 701.12, AT 16 (4TH ED. 1999). In a 1995 DUI case, Division I in Seattle v. Heatley, 70 Wn.App 576 (1995) affirmed the trial court decision permitting an officer to testify based upon the officer’s observations that the defendant was “obviously intoxicated” and “could not drive a motor vehicle in a safe manner.” The Heatley facts are typical of DUI fact patterns. The officer made several observations about Heatley’s condition and conduct before providing the opinion about the defendant’s intoxication. The defendant’s eyes were bloodshot and watery, his face was flushed, his balance was unsteady, his speech was slurred, and the defendant had a strong odor of alcohol on his breath. Heatley was able to recite the alphabet and count backwards from 59, but with slurred speech. Heatley also exhibited balance problems on the balance test, one leg stand, and finger-to-nose sobriety tests. The defendant also performed some parts of the FSTs properly. This Court is convinced by case law both within this State and throughout the country, that an officer may testify in the form of a lay opinion as to the defendant’s physical impairment based on the officer’s observations of psychophysical tests including the battery of three SFSTs. It is clear that, based on the three SFSTs, the officer is not testifying to a BAC level of intoxication as measured by the BAC. The defense asserts that any significant deviation from the NHTSA manual in the method used by the officer to administer an SFST requires suppression of all SFST evidence. The defense is asking this Court to adopt the rationale as stated in Ohio v. Homan, 89 Ohio St.3T~~ 421, 732 N.E.2d 952 (Ohio 2000) that any deviation from the procedure established by NHTSA makes the officer’s conclusions inherently unreliable and therefore testimony as to the results shall be inadmissible. Both plaintiff and defendant have cited case law from around the country on this issue. Ohio appears to stand alone in holding the officer to this standard. This Court finds persuasive the following language from Florida v. Meador, 674 So.2d 826, 831 (1996): A defendant’s ability to perform these simple psychomotor tasks is within a juror’s common experiences and understanding. There are objective components of the field sobriety exercises, which are commonly understood and easily determined, such as whether a foot is on a line or not. Jurors do not require any special expertise to interpret results of defendant’s performing the walk-and-turn test, the one-legged stand, the balance test and the finger-to-nose test should be treated no differently than testimony of lay witnesses (officers, in this case) concerning their observations about the driver’s conduct and appearance. Further, holding that NHTSA studies attempting to validate the reliability of some field sobriety tests conducted at roadside to predict over-limit BAC test results do not turn an officer’s observations of the defendant’s FST performance into scientific evidence, the court held: The mere fact that the NFTSA studies attempted to quantify the reliability of the field sobriety tests in predicting unlawful BAC’s does not convert all of the observations of a person’s performance into scientific evidence. The police officer’s observations of the field sobriety exercises, other than the HGN test, should be placed in the same category as other commonly understood signs of impairment, such as glassy or bloodshot eyes, slurred speech, staggering, flushed face, labile emotions, and odor of alcohol or driving patterns. The defense argument that the field sobriety exercises do not test “normal faculties” goes to the weight of the evidence and not its admissibility. Even defendants’ expert, Dr. Cole, conceded that field sobriety tests have “some value” in predicting BAC levels and that BAC levels are related to impairment in “some complex way.” When viewed as lay observations of impairment of normal faculties, the psychomotor exercises are relevant to prove impairment Florida at 831-32. After review of all relevant case law from this State and around the country cited by both parties, the undersigned judges find that the officer may give lay opinion as to physical impairment based on all observations of the defendant’s behavior whether the behavior is observed prior to or while the defendant is performing SFSTs or any other test or observation. If protocol for the SFSTs is not followed, cross examination may occur. This testimony goes to the weight of the evidence and not the admissibility of the officer’s observations. Any assigned scientific validation to the battery of three SFSTs does not render those tests scientific as to the driver’s physical impairment. (As stated before, the scientific validity goes only to the probable cause finding, not evidence offered at trial.) The argument by the defense may have merit if a defendant in this State could only be convicted of a DUI based on their BAC level and the officer was able to testify to his or her opinion of the BAC level based on the performance of the three SFSTs. However that is not the law in Washington State. This Court has never allowed an officer to testify regarding his or her opinion as to the level of alcohol in the defendant’s system based on the performance of the SFSTs, and will not now. Although the officer is permitted to testify about observations and opinions of the defendant’s performance, including whether the performance is consistent with the officer’s opinion of intoxication, the officer may not testify in a fashion that casts an aura of scientific certainty to the testimony. State v. Baity, 140 Wn.2d 1 (2000). The officer may testify as to how the test should properly be done, what observations were made, and whether these observations were consistent with the officer’s overall opinion as to whether the defendant was intoxicated or not as defined by state law. The use of terms such as “clues”, “passing” or “not passing” a test based on the NHTSA SFSTs (except for the HGN test) is not permitted during trial. Terms such as “clues” or “passing” of a test other than the HGN utilizes the standards set forth in the NHTSA manual that is specifically meant for determining probable cause only based on the probability of a BAC level. Therefore, use of these terms is inadmissible at trial unless the defense raises the issue first. In light of the Court’s decision and based on the current case law in the State and throughout the country the undersigned judges also make the following decisions regarding the remainder of the issues raised by the parties. Specifically, an officer’s probable cause to arrest the defendant is part of the foundation the prosecution must lay for breath test admissibility under the implied consent statute. In addition, field sobriety tests are relevant to an officer’s probable cause decision to arrest the defendant for DUI. Furthermore, the State may reject a defense offer to stipulate to an officer’s probable cause to arrest the defendant for DUI. Finally, evidence of the FST performance is relevant whether the defendant committed a DUI. As to the issue of the HGN, State v. Baity, 140 Wn.2d 1 (2000) makes it clear that a properly administered HGN test by a properly trained officer is admissible to show an individual was impaired by alcohol if the witness’s testimony meets the requirements of ER 702. A witness testifying concerning the results of an HGN test, however, may not go beyond testimony of impairment to the recitation of a specific level of intoxication. In the form of a motion in limine, the State has raised the issue of whether administration of FSTs constitutes a search, whether Miranda or Ferrier-like warnings are required, whether the situation involves a Terry stop, and what exceptions to the warrant requirement may apply. These issues were not raised by the defense in Shines, the lead case here. Consent by Mr. Shines is not an issue before this Court. An en banc hearing is an extraordinary procedure used sparingly by this Court for issues of broad application. This Court is not inclined to use this extraordinary remedy to pre-judge an issue not raised in the case at bar. Further factual testimony may be needed if the issue of consent is raised in any particular case. Counsel for both parties have prepared extensive pleadings, motions, exhibits and documents that accompanied the legal memoranda. The Court thanks the attorneys for their presentation. DATED this 25th day of April, 2007. Judge James M. Riehl Judge W. Daniel Phillips Judge Marilyn G. Paja Judge Stephen J. Holman Attachment A
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