Opinion
No. 35743-7-II.
October 23, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-1-00184-0, Stephen M. Warning, J., entered December 28, 2006.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Armstrong, J.
Stephen J. Whitmire appeals from his conviction for vehicular assault, arguing that the trial court erred in admitting his admission that he had taken methamphetamine before causing a car accident and that the State lacked probable cause to arrest him. We affirm.
RCW 46.61.522(1)(b) states: "A person is guilty of vehicular homicide if he or she operates or drives any vehicle: while under the influence of intoxicating liquor or any drug, . . . and causes substantial bodily harm to another."
FACTS
At about 10:00 a.m. on November 13, 2005, Whitmire was driving on Industrial Way in Longview, Washington, when his car drifted across the centerline and struck an oncoming vehicle. Washington State Patrol Trooper Bradford Moon responded to the accident scene. A witness identified Whitmire and informed Moon that he used drugs, but she did not know if he had used them that day. Moon saw that there were no tire marks leading to Whitmire's vehicle, causing him to conclude that Whitmire had not used his brakes before the collision. Whitmire did not smell of alcohol and did not show signs of drug use at the accident scene.
Both drivers received emergency medical treatment. Moon contacted the driver of the second vehicle, Shara Petrick, at the hospital. Petrick told Moon that right before the collision, she had seen Whitmire sitting erect and looking at her through his windshield.
State Trooper Frank Black, a trained drug-recognition expert, contacted Whitmire at the hospital. A nurse informed Black that Whitmire had been given a dose of fentanyl, a narcotic painkiller. She also told him that Whitmire had been lethargic before receiving the fentanyl. Black attempted to rouse Whitmire to speak with him, but Whitmire could not stay conscious. Black believed that a single dose of fentanyl was unlikely to render Whitmire incoherent or unconscious. But he also recognized that the drug could affect people differently, causing lethargy or sleepiness.
Moon also spoke with Whitmire, who admitted to using "a 20" of methamphetamine the night before and into the early morning. Report of Proceedings (RP) at 54. But Moon did not give Whitmire a Miranda warning before asking him about his drug use. After conferring with Black, Moon called his supervisor and they decided to arrest Whitmire for vehicular assault. Believing that he was probably driving under the influence, the troopers drew Whitmire's blood for testing. The test revealed that Whitmire's blood contained "1.52 milligrams of methamphetamine per liter . . . and 0.08 milligrams of amphetamine per liter." Clerk's Papers (CP) at 75.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The State charged Whitmire with vehicular assault, alleging that he either drove under the influence or drove with disregard for the safety of others. Whitmire moved to exclude his admission to Moon, arguing that Moon obtained it in violation of Miranda. He also moved to exclude the blood test results, arguing that without his statement the troopers lacked probable cause to arrest him for vehicular assault.
After a CrR 3.5 hearing, the trial court ruled that the evidence showed Whitmire was driving in the wrong lane toward oncoming traffic and that those facts alone provided probable cause to arrest him for vehicular assault. Additionally, the trial court ruled that Black's opinion that Whitmire was more incapacitated than he would have expected from the dose of fentanyl was probable cause for the arrest. The trial court concluded that Whitmire's admission to Moon was admissible because he was not in custody at the time.
The case proceeded to a bench trial and the trial court convicted Whitmire of vehicular assault by being under the influence of drugs. Whitmire appeals.
ANALYSIS
Whitmire appeals from the trial court's rulings on his motions to suppress evidence. We review the facts supporting suppression rulings for substantial evidence, determining whether the evidence is sufficient to persuade a fair minded, rational person of the finding's truth. State v. Adams, 138 Wn. App. 36, 44, 155 P.3d 989 (2007). We review the trial court's legal conclusions de novo. State v. Ague-Masters, 138 Wn. App. 86, 97, 156 P.3d 265 (2007).
I. Probable Cause
First, Whitmire challenges the trial court's finding that probable cause supported his arrest for vehicular assault and the subsequent blood draw. He argues that the evidence was consistent with him falling asleep at the wheel, which only establishes negligence, not disregard for the safety of others.
Under Washington's implied consent statute, all drivers consent to a blood or breath test when arrested and a law enforcement officer has reasonable grounds to believe the person was driving under the influence. RCW 46.20.308(1). If the driver is unconscious or is under arrest for vehicular assault, the officer may obtain a blood sample without the driver's consent. RCW 46.20.308(3).
Probable cause exists for an arrest when the facts and circumstances are sufficient to warrant a prudent or cautious person believing that a crime has been committed. State v. Chavez, 138 Wn. App. 29, 34, 156 P.3d 246 (2007). "Probable cause requires more than suspicion or conjecture, but it does not require certainty." State v. Chenoweth, 160 Wn.2d 454, 476, 158 P.3d 595 (2007). Where drugs are involved or drug use is suspected, it is appropriate to consider whether the arresting officer has special expertise or training. Chavez, 138 Wn. App. at 34.
Vehicular assault occurs when a person causes substantial bodily harm to another by driving a vehicle (1) in a reckless manner, (2) under the influence of drugs or alcohol, or (3) with disregard for the safety of others. RCW 46.61.522. "Disregard for the safety of others" refers to aggravated negligence or carelessness or driving rashly or heedlessly without regard to the consequences. State v. McNeal, 98 Wn. App. 585, 593, 991 P.2d 649 (1999).
Here, the trial court found that there was probable cause to believe that Whitmire had violated RCW 46.61.522(2) and (3) based on the fact that he was driving on the wrong side of the road and appeared more lethargic that one would expect after receiving a dose of painkiller. We agree with the trial court that the evidence available to the troopers established probable cause to arrest Whitmire for vehicular assault under either prong of the statute.
RCW 46.61.522(2) states: "Vehicular assault is a class B felony punishable under chapter 9A.20 RCW."
RCW 46.61.522(3) states: "As used in this section, `substantial bodily harm' has the same meaning as in RCW 9A.04.110."
Whitmire argues that it is possible he merely fell asleep at the wheel; thus, because the accident could have resulted from non-criminal causes, probable cause for arrest did not exist. At the time of the accident, Whitmire was driving on the wrong side of the road into oncoming traffic at about 50 to 55 miles per hour. One vehicle swerved to avoid a collision. In addition, Petrick stated that Whitmire was looking at her through the windshield moments before the collision, yet Whitmire did not apply his brakes to avoid the collision. Evidence that Whitmire traveled at a high rate of speed in the wrong lane of traffic and caused a head-on collision is sufficient to show disregard for the safety of others. State v. Eike, 72 Wn.2d 760, 766, 435 P.2d 680 (1967).
Additionally, Whitmire contends that probable cause to arrest him for the driving under the influence prong was lacking. He argues that his incoherence at the hospital was consistent with legally receiving a narcotic analgesic. But Black testified that Whitmire was more lethargic than he would expect from a single dose of fentanyl. And a nurse informed Black that Whitmire was lethargic before he received the fentanyl. Because it is appropriate to take into account Black's expertise and training in drug use recognition, his assessment of Whitmire's condition establishes probable cause to believe that Whitmire was under the influence of an illegal substance before the hospital administered the fentanyl.
Whitmire also challenges the trial court's reliance on the nurse's statement, arguing that since Black could not identify the nurse, her claim that he was unusually lethargic lacked credibility. But the trial court may consider otherwise inadmissible evidence when deciding a suppression motion. State v. O'Cain, 108 Wn. App. 542, 556, 31 P.3d 733 (2001). And we do not reconsider the trial court's credibility determinations. Adams, 138 Wn. App. at 45.
Because the troopers had valid grounds to arrest Whitmire for vehicular assault under either RCW 4.61.522(2) or (3), they could legally obtain a blood sample without Whitmire's consent. RCW 46.20.308(3). The trial court did not err in denying Whitmire's motion to suppress the results of his blood test.
II. Miranda Warnings
Whitmire further argues that the trial court erred in ruling that he was not in custody when Moon questioned him at the hospital. He contends that Miranda warnings were necessary.
Law enforcement officers must give Miranda warnings before initiating a custodial interrogation. State v. Rotko, 116 Wn. App. 230, 240, 67 P.3d 1098 (2003). "Custody" requires a formal arrest, or a restriction on freedom of movement equivalent to a formal arrest. State v. Post, 118 Wn.2d 596, 606, 826 P.2d 172 (1992) (citing Minnesota v. Murphy, 465 U.S. 420, 430, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984)).
Officers investigating a traffic accident may briefly detain a driver to determine "`whether he should be issued a traffic citation, whether there is probable cause to arrest him, or whether he should be free to leave after the necessary documentation has been exchanged.'" State v. Ferguson, 76 Wn. App. 560, 568, 886 P.2d 1164 (1995) (quoting Cordoba v. Hanrahan, 910 F.2d 691, 694 (10th Cir. 1990). These circumscribed detentions are equivalent to a Terry stop rather than a custodial interrogation. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). Moreover, because investigations of traffic accidents are less threatening than custodial interrogations, Miranda warnings are not required. Berkemer, 468 U.S. at 440.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Here, Moon and Black responded to a serious traffic accident and contacted both drivers in the hospital to determine what happened. They did not handcuff Whitmire, transport him for questioning, or take any other action associated with a formal arrest. To the contrary, they merely contacted Whitmire in his hospital room to find out how the accident occurred and whether an arrest or a citation was necessary. Under Ferguson, Whitmire was not in custody and the troopers were not required to give him Miranda warnings.
In any event, any Miranda error here is harmless because, as discussed above, the State legally obtained the blood sample regardless of Whitmire's admissions and the blood sample revealed the presence of both methamphetamine and amphetamines. The presence of narcotics in his blood, combined with the circumstances of the accident, lead to the inescapable conclusion that Whitmire was under the influence of drugs when he crossed the centerline and collided with Petrick's vehicle. Accordingly, any failure to give Miranda warnings was harmless.
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.
We concur:
Houghton, C.J.
Armstrong, J.