Opinion
No. 28239-9-II c/w 28929-6-II
Filed: April 23, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Clark County Docket No: 01-1-00388-7 Judgment or order under review Date filed: 12/13/2001
Counsel for Appellant(s), Suzan L. Clark, Attorney at Law, 1101 Broadway St. Ste 250, Vancouver, WA 98660-3320.
Counsel for Respondent(s), Richard Alan Melnick, Attorney at Law, 1200 Franklin, P.O. Box 5000, Vancouver, WA 98666-5000.
Robert Pfaff appeals his convictions of three counts of vehicular assault, arguing that double jeopardy principles allow only one conviction because he injured the three victims in a single accident. He also contends that (1) the trial court should not have allowed an expert to testify about the synergistic effects of marijuana and alcohol; (2) the Washington police officer could not order a blood draw in the Oregon hospital where he was taken; and (3) he did not voluntarily waive his Miranda rights because he was medicated when interviewed. Pfaff also contests the amount of restitution the court ordered. We find no error and, thus, affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FACTS
Robert Pfaff drove his car across the center line and hit another car head-on. Pfaff, his passenger, and the two people in the other car were all badly injured. Pfaff had been drinking beer and "jungle juice," an alcoholic drink. Report of Proceedings (RP) at 64.
The accident occurred in Washington, but Pfaff was taken to an Oregon hospital. A Washington State Trooper contacted Pfaff at the hospital, read him his Miranda rights, and obtained a blood draw.
The State charged Pfaff with three counts of vehicular assault, one for each person injured.
At trial, the State's expert testified that, in addition to alcohol, Pfaff's blood contained carboxy THC, which suggested recent marijuana use.
The expert explained that using marijuana generally increases the effect of alcohol on a person; but she could not say what the effect, if any, was on Pfaff. The jury convicted Pfaff of all three counts.
ANALYSIS I. Expert Testimony
At trial, Pfaff objected to the testimony of Anne Marie Gordon, the State's toxicologist, arguing that she could not discuss the synergistic effects of marijuana and alcohol in a person's system. The trial court admitted the testimony after concluding that its probative value outweighed any prejudicial effect.
We review rulings on evidence for an abuse of discretion. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). A court has abused its discretion if no reasonable person would take the view the trial court adopted. Castellanos, 132 Wn.2d at 97.
Generally, all relevant evidence is admissible. ER 402. Evidence is relevant if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' ER 401. But the trial court may exclude relevant evidence if its probative value is `substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.' ER 403. Pfaff argues that the court should not have admitted the testimony because it `unfairly prejudiced Pfaff and mislead to (sic) the jury.' Appellant's br. at 7.
A person commits vehicular assault if he operates or drives a motor vehicle (1) in a reckless manner and causes substantial bodily harm to another, or (2) while under the influence of intoxicating liquor or any drug and causes substantial bodily harm to another. RCW 46.61.522(1)(a), (b). A person is under the influence if within two hours of driving he has a blood alcohol count of 0.08 or higher, is `under the influence of or affected by intoxicating liquor,' or he is `under the combined influence of or affected by intoxicating liquor and any drug.' RCW 46.61.502(1)(b), (c).
Gordon testified that marijuana generally `potentiates' alcohol, i.e. it increases the effect of either substance alone. RP at 592. But without knowing when Pfaff smoked marijuana, how much he smoked, and the quality of the drug, Gordon could give no opinion about the effect of the marijuana and alcohol together on Pfaff at the time of the accident.
Evidence has a danger of unfair prejudice if it is "more likely to arouse an emotional response than a rational decision by the jury." State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000) (quoting State v. Gould, 58 Wn. App. 175, 183, 791 P.2d 569 (1990)). Pfaff does not argue that the court erred by allowing evidence of his marijuana use; he challenges only the testimony as to the effect of the substances combined. The possibility that marijuana and alcohol could interact to create a synergistic effect is not likely to arouse an emotional response by the jury. But such an interaction is probative of whether Pfaff was under the influence of alcohol and drugs at the time of the accident — a central issue in the case. The trial court did not abuse its discretion by allowing Gordon's testimony.
II. Double Jeopardy
Pfaff next contends that the State violated his double jeopardy rights by prosecuting him for multiple counts of vehicular assault arising from the same accident. He maintains that the unit of prosecution contemplated by the vehicular assault statute is the motor vehicle accident, not the number of people injured.
No person shall `be subject for the same offense to be twice put in jeopardy of life or limb.' U.S. Const. amend. V; see also Wash. Const. art. I, § 9. Among other things, the double jeopardy clause protects against multiple punishments for the same offense. State v. Gocken, 127 Wn.2d 95, 100, 896 P.2d 1267 (1995).
To determine whether a conviction for violating one statute multiple times amounts to double jeopardy, we must determine what `unit of prosecution' the legislature intended as the punishable act under the statute. State v. Adel, 136 Wn.2d 629, 633-34, 965 P.2d 1072 (1998). The legislature has stated that [a] person is guilty of vehicular assault if he or she operates or drives any vehicle:
(a) In a reckless manner and causes substantial bodily harm to another; or (b) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, and causes substantial bodily harm to another; or (c) With disregard for the safety of others and causes substantial bodily harm to another.
Under a plain reading of the statute, a defendant commits vehicular assault each time he causes substantial bodily harm to another if he was also driving recklessly, while under the influence, or with disregard for others' safety. Pfaff cites State v. Westling, 145 Wn.2d 607, 40 P.3d 669 (2002), which held that prosecution for multiple counts of arson based on three different cars violated double jeopardy. But, unlike the statute here, the arson statute dictates that a person commits arson if he causes a fire that damages any automobile or other motor vehicle. RCW 9A.48.030(1); Westling, 145 Wn.2d at 611. The court noted that "[a]ny' means `every' and `all'.' Westling, 145 Wn.2d at 611 (quoting State v. Smith, 117 Wn.2d 263, 271, 814 P.2d 652 (1991)). But the vehicular assault statute defines the crime in terms of substantial bodily harm caused to `another.' `Another' is singular, and means `one other than oneself.' Webster's Third New International Dictionary 89 (1969). Thus, nothing in the statute supports Pfaff's contention that the legislature intended to punish only each accident.
The legislature's 1996 statutory amendment further suggests that it intended the unit of prosecution to be defined by the number of injured victims. In 1996, the legislature amended the definition of `same criminal conduct' as it related to vehicular assault. Before the amendment, the definition did not apply to vehicular assault, but the courts could consider multiple victims of vehicular assault as aggravating circumstances. Former RCW 9.94A.400(1)(a) (1994). The legislature amended the statute so that the definition of same criminal conduct — same criminal intent, time and place, and victim — applied to vehicular assault. Laws of Washington 1996, ch. 199, § 3. This means that multiple victims in a vehicular assault incident can be the basis of separate assaults. Laws of Washington 1996, ch. 199, § 3.
Accordingly, Pfaff's conviction of three counts of vehicular assault, based on separate victims, did not subject him to double jeopardy.
III. Waiver of Rights
Pro se, Pfaff contends that he did not voluntarily waive his Miranda rights because he was in shock from the accident and had been medicated at the hospital.
At trial, Pfaff moved to suppress the results of his blood draw. After a hearing, the court found the blood draw and Pfaff's statements to Officer Riddell admissible. The court noted that Pfaff said that he understood the Miranda warnings and the officer's warning that a blood test could be administered without his consent due to the nature of the charged crime. Pfaff was unable to sign, but he gave his verbal consent. The officer made no promises or threats, Pfaff answered the questions appropriately, and he did not refuse to answer any questions. There was no indication that Pfaff's medicines impaired his ability to communicate or answer questions voluntarily.
Pfaff draws this court's attention to the officer's statement that Pfaff did not know what date or day of the week it was and did not know what city he was in. But '[w]hen a trial court determines a confession is voluntary, that determination is not disturbed on appeal if there is substantial evidence in the record from which the trial court could have found the confession was voluntary by a preponderance of the evidence.' State v. Aten, 130 Wn.2d 640, 664, 927 P.2d 210 (1996). The officer's testimony supports the trial court's finding that Pfaff voluntarily and knowingly waived his Miranda rights.
IV. Blood Draw
Pfaff also argues that the Washington police officer did not have authority to draw blood in an Oregon hospital. We have recently decided otherwise in State v. Donahue, 105 Wn. App. 67, 18 P.3d 608, review denied, 144 Wn.2d 1010 (2001). Donahue caused an accident in Washington and was taken to an Oregon hospital where doctors drew his blood. Donahue, 105 Wn. App. at 70. A Washington detective obtained the blood from the hospital to use in his investigation. Donahue, 105 Wn. App. at 70. We held that the blood test results were admissible because (1) the place of treatment determines which physician-patient privilege applies, (2) Oregon's privilege does not apply to criminal proceedings, so the test results were admissible, and (3) the results were admissible despite the use of methods different from what Washington toxicologists use. Donahue, 105 Wn. App. at 69.
Although Pfaff's claim is slightly different than those raised in Donahue, the holding applies here. Blood tests obtained in an Oregon hospital to investigate an alleged crime committed in Washington are admissible in the trial on the Washington crime. Donahue, 105 Wn. App. 67.
The officer who ordered the blood draw had probable cause to arrest Pfaff based on the report of the officer who responded to the scene. Before the officer ordered the blood draw, he advised Pfaff of his Miranda rights and gave him the `special evidence warnings' that a blood draw could be administered without his consent. RP at 38-40. The officer had the legal authority to order the blood draw, and the trial court properly found the results admissible.
V. Restitution
At sentencing, the trial court ordered Pfaff to pay $31,066.57 in restitution. Pfaff contends that some of the items included in this amount do not qualify for restitution. He specifically disputes an airline ticket, meals, and expenses for a family member to fly from Canada to Portland; rental car and taxicab expenses; and 13 months of time loss for Christine Lummis.
The sentencing court shall order restitution `whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property.' RCW 9.94A.753(5). Restitution `shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury.' RCW 9.94A.753(3). Restitution may not include `damages for mental anguish, pain and suffering, or other intangible losses.' RCW 9.94A.753(3). We review a court's restitution order for abuse of discretion. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999).
Restitution is appropriate if the crime and the injuries are causally connected. Enstone, 137 Wn.2d at 682. Although only the victim may receive restitution, a third party who made a payment as a result of the crime may also receive restitution for payments made for the victim's losses. State v. Kisor, 82 Wn. App. 175, 183, 916 P.2d 978 (1996); see State v. Awawdeh, 72 Wn. App. 373, 378, 864, 864 P.2d 965 (1994); 13B Washington Practice: Criminal § 3611 at 333 (1998).
Because Christine Lummis's injuries were so extensive, the hospital would not release her injured daughter into her care. Thus, another family member had to come to the hospital to transport Lummis's daughter home to Canada. The airline ticket was a transportation cost for the daughter, who was a victim of the vehicular assault. Thus, the trial court did not abuse its discretion by ordering restitution for this cost.
Similarly, the cost of a rental car and taxi fees are transportation costs causally related to the crime. Christine Lummis's car was extensively damaged in the accident; and she could not drive because of her injuries.
Pfaff also disputes restitution ordered for `meals and expenses for Mr. Saunders,' the family member who came to transport the daughter home. Appellant's Supp. Br. at 3. But it is not clear from the record that any restitution covered his meals and expenses. Christine Lummis was released from the hospital before her daughter, and she incurred some expenses while she waited for her daughter's release. These expenses were incurred by a victim and would not have been incurred but for the vehicular assault. The trial court did not abuse its discretion by including them in the restitution award.
Finally, Pfaff contends that the record fails to support Christine Lummis's claim for 13 months of time loss. But the record contains a note from her doctor granting this time loss and information from her employer about this time loss. Contrary to Pfaff's claim, her doctor's release justifies her 13-month absence from work — the accident occurred in August 2000, and her doctor released her to work in September or October 2001.
The trial court did not abuse its discretion by including the disputed items in the restitution order. We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, C.J. and MORGAN, J., concur.