Opinion
No. 64468-8-I.
Filed: April 25, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-1-11592-1, Theresa B. Doyle, J., entered October 19, 2009.
Affirmed by unpublished opinion per Schindler, J., concurred in by Leach, A.C.J., and Becker, J.
A jury found Teodoro Vallejo guilty of felony driving while under the influence. We conclude that the trial court's admission of Vallejo's refusals to perform blood alcohol and field sobriety tests was not unfairly prejudicial and did not violate the attorney-client privilege or Vallejo's right to remain silent. Nor did the trial court err in identifying the charged offense as "felony driving under the influence" in the jury instructions. Finally, Vallejo fails to identify any prejudice resulting from the untimely entry of written CrR 3.5 and CrR 3.6 findings of fact and conclusions of law. We therefore affirm.
FACTS
At about 4:00 a.m. on June 29, 2008, Seattle Police Officer Mike Lewis was driving home on I-5 when a car, driven by Vallejo, passed him travelling about 90 miles per hour. Vallejo slowed to the speed limit but did not pull over when Lewis activated the overhead lights on his patrol car. Lewis then turned on his siren and illuminated Vallejo's car with his spotlight. Vallejo exited I-5 but did not stop. He proceeded to the next intersection, turned left through a red light, and eventually drove into an apartment complex and parked his car.
When Vallejo got out of his car, he was swaying and had "very droopy" eyelids. He had a strong odor of alcohol on his breath and had urinated in his pants. Lewis saw a recently emptied beer bottle in the front passenger area of Vallejo's car. Lewis patted Vallejo down and handcuffed him.
Because Lewis could not transport suspects in his K-9 patrol car, he called for a back-up. Seattle Police Officer David Peplowski arrived about 30 minutes later and took Vallejo into custody. Peplowski noticed Vallejo's red, watery eyes and slurred speech and detected the strong odor of alcohol on his breath. Peplowski advised Vallejo of his Miranda rights and transported him to the South Precinct.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
As Peplowski arrived at the precinct, he asked Vallejo if he was willing to perform a field sobriety test. Vallejo responded, "[P]robably not," and asked to talk to his attorney. After Peplowski read Vallejo the implied consent warnings, Vallejo refused to take the blood alcohol concentration (BAC) breath test. He maintained that he had drunk only a six-pack of soda with water.
The State charged Teodoro Vallejo with one count of felony driving under the influence (DUI). The parties stipulated that at the time of his arrest, Vallejo had been convicted of a DUI under RCW 46.61.5055 at least four times in the past ten years.
Vallejo moved to suppress his refusal to perform the field sobriety and BAC tests. At the suppression hearing, Vallejo testified that following a 1993 arrest for a DUI, his attorney had advised him never to take the BAC test. Vallejo believed that this advice also applied to the field sobriety test. Vallejo argued that because he was acting on the advice of counsel, his refusals did not reflect any consciousness of guilt and the admission of the evidence would effectively compel him to testify about his confidential 1993 conversation with counsel. Vallejo did not testify at trial.
The trial court denied Vallejo's motion, concluding that the probative value of the refusals was not substantially outweighed by the potential prejudice and that the evidence was therefore admissible under ER 403.
At the close of trial, the trial court denied Vallejo's request to remove the "felony" designation from the jury instructions identifying the charged offense as "felony driving under the influence."
The jury found Vallejo guilty as charged, and the court imposed a 60-month standard range sentence.
ANALYSIS
Vallejo contends that the trial court erred in admitting his refusals to perform the BAC and field sobriety tests. He argues that the probative value of the evidence was minimal because his actions were based on the advice of counsel.
Evidence of a defendant's refusal to submit to sobriety tests is admissible at a subsequent criminal trial. See RCW 46.61.517; State v. Long, 113 Wn.2d 266, 272-73, 778 P.2d 1027 (1989) (blood alcohol tests); City of Seattle v. Stalsbroten, 138 Wn.2d 227, 238-39, 978 P.2d 1059 (1999) (field sobriety tests). "The rationale for admission of refusal evidence is that a refusal to take the test demonstrates the driver's consciousness of guilt." State v. Cohen, 125 Wn. App. 220, 224, 104 P.3d 70 (2005) (blood alcohol tests); Stalsbroten, 138 Wn.2d at 234. Based on the specific facts of each case, the trial court may exclude the refusal to perform a sobriety test if its probative value is outweighed by the danger of unfair prejudice or confusion of the jury. ER 403; Cohen, 125 Wn. App. at 225. We review the trial court's evidentiary determination under ER 403 for a manifest abuse of discretion. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001).
Vallejo contends that because he was acting on the advice of counsel when he refused to perform the BAC test, the refusal was not probative of a consciousness of guilt. He argues that he could not rebut the evidence without disclosing confidential communications to the jury, implicating the attorney-client privilege and his right to remain silent. Vallejo has not cited any relevant authority to support these contentions.
As the trial court observed, Vallejo could have explained the general reasons for his refusal without disclosing the source of the information or revealing the existence of confidential communications. The trial court correctly determined that any alternative explanations for the refusal would therefore affect only the weight to be accorded Vallejo's refusal, not its admissibility. Under the circumstances, Vallejo's decision not to testify or offer an alternative explanation for his refusal was a voluntary tactical choice.
Vallejo's assertion that his refusal to perform the BAC test implicates his right to remain silent and the attorney-client privilege is also without merit. Evidence of a defendant's refusal to perform a sobriety test is nontestimonial. See Stalsbroten, 138 Wn.2d at 233 ("Field sobriety tests produce only real or physical evidence, and do not communicate testimonial evidence."). Fifth Amendment protections therefore do not apply to Vallejo's refusal to perform sobriety tests. See Id.
Similarly, the attorney-client privilege protects "`communications and advice between attorney and client.'" Hangartner v. City of Seattle, 151 Wn.2d 439, 452, 90 P.3d 26 (2004) (quoting Kammerer v. W. Gear Corp., 96 Wn.2d 416, 421, 635 P.2d 708 (1981)); RCW 5.60.060(2)(a). "Communication" is generally defined as "[t]he expression or exchange of information by speech, writing, gestures, or conduct." Black's Law Dictionary 296 (8th ed. 2004). Because Vallejo's refusal to perform a BAC did not constitute a communication, it does not implicate the attorney-client privilege. See State v. Athan, 160 Wn.2d 354, 368-69, 158 P.3d 27 (2007) (admission of defendant's saliva did not constitute communication implicating attorney-client privilege).
Vallejo also contends that the trial court erred in admitting evidence of his refusal to perform the field sobriety test. He argues that the refusal of the voluntary test was not probative of a consciousness of guilt because he did not really "refuse" to take the test and he was not asked to perform the test until long after his arrest, at a time when he was trying to contact an attorney.
Both sides were free to argue whether Vallejo's response of "probably not" constituted a refusal and what inferences could reasonably be drawn from the response in light of the circumstances surrounding the arrest. Vallejo's arguments therefore go to the weight of the evidence. The danger of unfair prejudice did not substantially outweigh the probative value.
The trial court did not abuse its discretion under ER 403 in admitting Vallejo's refusals to perform the BAC and field sobriety tests.
Vallejo next contends that he was denied his right to a fair trial when the trial court identified the charged offense in the jury instructions as "felony driving under the influence." Driving under the influence is elevated from a gross misdemeanor to a felony if the defendant "has four or more prior offenses within ten years as defined in RCW 46.61.5055." RCW 46.61.502(6). "[T]he fact that a person has four prior DUI offenses is an essential element of the crime of felony DUI . . . that must be proved to the jury beyond a reasonable doubt." State v. Chambers, 157 Wn. App. 465, 468, 237 P.3d 352 (2010).
Relying primarily on State v. Hagler, 150 Wn. App. 196, 208 P.3d 32 (2009), Vallejo argues that the "felony" label in the instructions unnecessarily emphasized the severity of the offense because the parties had already stipulated to the existence of the prior convictions necessary to elevate the offense to a felony. In Hagler, a prosecution for promoting prostitution and second degree assault, we noted that inclusion of the "domestic violence" designation in the jury instructions did not assist the jury because it was neither an element of the charged offenses nor relevant to an element and could be prejudicial in some cases. Hagler, 150 Wn. App. at 202. The court concluded, however, that any error was harmless in light of the evidence of domestic violence presented at trial.
The court's concern in Hagler was the possibility that the domestic violence designation could have influenced the jury's determination of whether the evidence established the use or threat of force necessary to prove specific elements of the charged offenses. Hagler, 150 Wn. App. at 202. Here, however, the identification of the charged offense as "felony driving under the influence" raised no comparable concerns.
The designation "felony driving under the influence" accurately and succinctly identified the charged offense. Unlike "domestic violence," the term "felony" cannot reasonably be construed as a potential comment on the evidence and does not support an evidentiary inference regarding any of the specific elements that the State had to prove. Although the term "felony" also identified the general classification of the charged offense, the instructions did not set forth any details about potential punishment or suggest that punishment was in any way relevant to the jury's deliberations. The jury was also admonished that:
You have nothing whatever to do with any punishment that may be imposed in case of a violation of the law. You may not consider the fact that punishment may follow conviction except insofar as it may tend to make you careful.
Instruction No. 1. We must presume that the jury followed the court's instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).
Viewed in light of the elements of the charged offense and the instructions as a whole, the designation of the charged offense as "felony driving under the influence" was not misleading or confusing and did not place undue emphasis on potential punishment. We find no error.
Finally, Vallejo contends that his conviction must be reversed because the trial court failed to enter written findings of fact and conclusions of law after ruling on his motion to suppress. See CrR 3.5; CrR 3.6(b). The trial court belatedly entered written CrR 3.5 and CrR 3.6 findings of fact and conclusions of law on August 25, 2010, before the State filed its response brief.
We will not reverse a conviction for the late entry of findings and conclusions unless the delay prejudiced the defendant or the findings and conclusions were tailored to address the issues raised in the defendant's appellate brief. State v. Cannon, 130 Wn.2d 313, 329-30, 922 P.2d 1293 (1996). Here, the written findings and conclusions accurately reflect the evidence presented to the trial court, the parties' arguments, and the court's oral decision. Vallejo has not alleged or demonstrated that the written findings and conclusions are inadequate to permit appellate review or that the delayed entry was in any way prejudicial. Reversal is therefore not warranted. See State v. Brockob, 159 Wn.2d 311, 344, 150 P.3d 59 (2006); Cannon, 130 Wn.2d at 330.
Affirmed.