Opinion
No. 59373-1-I.
June 23, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-11078-0, George T. Mattson, J., entered January 5, 2007.
Affirmed by unpublished opinion per Ellington, J., concurred in by Appelwick and Leach, JJ.
Police arrested William Rosenquist on suspicion of vehicular homicide while intoxicated. As required by statute, they arranged for a blood test. Although Rosenquist immediately asked for an attorney, he was not provided access to counsel for two days, in clear violation of his right to counsel under Criminal Rule (CrR) 3.1. But because the blood test was mandatory, violation of the rule-based right to counsel does not taint the evidence. Further, Rosenquist has shown no prejudice from the absence of an independent test. We affirm.
BACKGROUND
On April 27, 2005, Rosenquist was drinking at a Seattle bar with his friend, James Stevens. Rosenquist repeatedly called his ex-girlfriend, Cindy Post, who tired of his calls and asked a friend, Kevin Phillips, to answer them. Rosenquist threatened to bring a friend and harm Phillips.
Shortly before midnight, Rosenquist and Stevens drove to Post's apartment complex. As Post and Rosenquist argued in the parking lot, Stevens climbed out of Rosenquist's pickup truck and walked down the street. Rosenquist stepped back into his truck and pulled out of the parking lot. Stevens ran up alongside, trying to climb in. Failing to get Rosenquist's attention, Stevens turned around and began walking back towards the apartment.
Suddenly, Rosenquist started backing up towards the apartment. He hit Stevens with the rear bumper and knocked him to the ground. Unaware he had hit his friend, Rosenquist continued to reverse into the parking lot, narrowly missing Stevens. He yelled at Post and Phillips, who were on Post's balcony, and started pulling forward again. Phillips screamed at Rosenquist to stop. Rosenquist continued driving, shouting back at Phillips and Post with his head out the window. He ran over Stevens with his front left tire.
Phillips ran downstairs. As Rosenquist got out and approached Stevens where he lay, Phillips heard Rosenquist say, "Dude, get up, you ain't this drunk. I had more to drink than you, you can't be this drunk, you can't pass out on me again." Clerk's Papers at 2-3. Stevens did not respond. Rosenquist ran to Post's apartment and told her to call 911. Post was already on the phone with emergency services. Medics and police arrived within minutes.
Rosenquist had watery and bloodshot eyes, slurred speech, and smelled strongly of intoxicants. The officers arrested him and read him the Miranda warnings.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Rosenquist immediately asked to speak with an attorney. Officers found marijuana during a search incident to arrest.
The officers took Rosenquist to Highline Hospital. The patrol car began to smell strongly of alcohol, and Rosenquist was slurring his words. They arrived at Highline at 12:14 a.m. Rosenquist was advised he had been arrested for vehicular assault, that a blood draw was mandatory, and that he had the right to an independent blood test. Rosenquist again asked to speak with an attorney. The blood draw occurred at 12:29.
Meanwhile, Stevens died at the accident scene.
Rosenquist remained in custody for two days, during which he was not allowed to contact his attorney.
The toxicology report showed a blood ethanol concentration of .16g/100mL and a carboxy-THC concentration of 112 ng/mL.
Rosenquist was charged with vehicular homicide. He agreed to a bench trial on stipulated facts. The court denied his motion to suppress and found him guilty.
ANALYSIS
Rosenquist contends the results of the blood test should be suppressed because the denial of his right to counsel deprived him of the opportunity to get an independent blood test.
Court rule CrR 3.1(a) gives individuals the right to an attorney during "all criminal proceedings for offenses punishable by loss of liberty." A person in custody must be allowed to contact an attorney "[a]t the earliest opportunity." CrR 3.1(c)(2). In the context of driving under the influence crimes, the rule has two purposes: to ensure that arrested persons are aware of their right to counsel before they provide incriminating evidence, and to ensure that they know of the right to counsel in time to decide whether to obtain an independent blood test or disinterested witnesses to observe their condition. State v. Trevino, 127 Wn.2d 735, 746, 903 P.2d 447 (1995); City of Tacoma v. Heater, 67 Wn.2d 733, 739, 409 P.2d 867 (1966). Access to counsel is "essential to the effective preparation of defense against the charge of [driving under the influence]," and is critically important not only to enable the defendant to decide whether to submit to a breath test, but also to "arrange for alternative testing, and present other exculpatory evidence such as video and disinterested third party witnesses." State v. Templeton, 148 Wn.2d 193, 212, 59 P.3d 632 (2002) (interpreting CrRLJ 3.1, which is identical to CrR 3.1).
The State does not dispute that Rosenquist was denied his CrR 3.1 right to counsel. Relying on State v. Schulze, 116 Wn.2d 154, 804 P.2d 566 (1991), the State contends that the violation does not taint the blood test results because Rosenquist had no right to refuse the blood draw. In the alternative, the State contends that any error was harmless.
Under Washington's implied consent law, RCW 46.20.308, individuals arrested for committing vehicular assault or vehicular homicide while intoxicated cannot refuse a breath or blood test, though they have the right to seek an independent test.
In Schulze, the defendant collided with a pickup truck and the impact killed its driver. Schulze was not arrested until 90 minutes after the accident. At the time of his arrest, he requested an attorney and submitted to the mandatory blood draw under protest. Police allowed Schulze to contact his attorney approximately 75 minutes later. Schulze argued that the denial of counsel before the blood test tainted its results. The court disagreed:
[T]he question is, were Shulze's blood test results tainted by a violation of his right to counsel? The answer is "no" because, even if Schulze had contacted his attorney, the attorney could have done nothing but instruct Schulze to submit to the mandatory blood test. The attorney advice or lack thereof was completely irrelevant.
Schulze, 116 Wn.2d at 164.
Rosenquist attempts to distinguish Schulze because he, unlike Schulze, was never allowed to contact his attorney, and he had just a few minutes at the scene to gather exculpatory evidence, while Schulze had one-and-a-half hours. See id. at 158-59. These differences do not affect admissibility of the blood test results. Evidence is tainted and subject to exclusion when it comes to light as a result of the violation of an accused's rights. State v. McReynolds, 104 Wn. App. 560, 571, 17 P.3d 608 (2000). The question is whether the evidence was discovered because of the illegality or by a different means. Id. In vehicular homicide cases, the blood test is mandatory. The evidence is not gathered as a result of an illegality.
Rosenquist argues that Schulze does not control the analysis because the court addressed only the first purpose of CrR 3.1, protecting arrested persons from providing incriminating evidence before they have an attorney's assistance. Relying on State v. Turpin, 94 Wn.2d 820, 620 P.2d 990 (1980), Rosenquist argues the blood test results were tainted based on the rule's second purpose, the opportunity to exercise the right to acquire exculpatory evidence. In Turpin, the court held blood test results had to be suppressed after a woman arrested for negligent homicide was not given notice of her right to an independent blood test. The court concluded, "The State cannot be allowed to use evidence which the defendant is unable to rebut because she was not apprised of her right to independent testing." Id. at 826.
But the Schulze court did consider Rosenquist's argument, and rejected it. In his dissent, Justice Utter contended the blood test should be suppressed because the defendant lost his right to gather exculpatory evidence. Schulze, 116 Wn.2d at 171 (Utter, J., dissenting) ("[A]n accused must have the opportunity to gather potentially exculpatory evidence as soon as possible after the arrest. The only way to effectively protect that right is to provide access to counsel once the suspect is arrested, and prior to any mandatory blood test."). The majority nonetheless limited taint, and thus suppression, to evidence collected as a result of the violation. Id. at 163-64.
As the court below aptly noted, this leaves Rosenquist without a remedy for violation of his CrR 3.1 right to counsel and fails to provide any effective deterrent to violating the rule. We agree with Rosenquist that the denial of counsel for two days despite repeated requests was an egregious CrR 3.1 violation. The violation did not, however, taint the blood test results, and Rosenquist has not argued any other form of prejudice.
We also observe that any error was harmless. When violation of the right to counsel offends a court rule, not the constitution, the stringent harmless error beyond a reasonable doubt standard does not apply. Templeton, 148 Wn.2d at 220. Rather, the error is prejudicial only if, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred. Id. Under the evidence here, there is no reasonable probability of prejudice.
To find someone guilty of vehicular homicide while intoxicated, the State must prove that a defendant's blood alcohol concentration was .08 or greater, or that the defendant was under the influence of alcohol or drugs while driving. RCW 46.61.502, .520; State v. Shabel, 95 Wn. App. 469, 473, 976 P.2d 153 (1999).
Rosenquist's blood alcohol tested at twice the legal limit, and the results revealed the presence of marijuana as well. Only a significantly different result on an independent test or a credible challenge to the State's evidence would have changed the outcome. There is nothing in the record to suggest that the State's testing procedures were faulty or that an independent test would have provided significantly different results. Further, the other evidence of Rosenquist's intoxication was overwhelming. When Rosenquist first called Post at 8:30 p.m. from a downtown Seattle bar, he seemed to Post already drunk, based on her previous experiences with him. It was another three hours before Rosenquist left the bar to go to Post's apartment. He did not realize he had run over Stevens twice, and he told Stevens to get up, "you ain't this drunk. I had more to drink than you, you can't be this drunk." Clerk's Papers at 2-3. At the scene, the officers noticed the smell of alcohol when Rosenquist spoke, his speech was slurred, and his eyes were watery. In the police car en route to Highline, Rosenquist was slurring his words, and as he spoke, the smell of alcohol grew stronger in the car. Marijuana was discovered in his pocket during a search incident to arrest.
This is extremely strong evidence of intoxication. There is not a reasonable probability that the outcome of the trial would have been different.
Affirmed.