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State v. Koch

11/30/2004

On May 22, 2001, Washington State Patrol Trooper Mark Lewis stopped Eric Koch's vehicle after he saw it cross over a lane divider and make a 'jerking correction back into his {vehicle's} lane' of travel. Trial Transcript (TT) at 14-15. Lewis detected an odor of intoxicants coming from inside the vehicle and noticed that Koch had watery, bloodshot eyes. Based on Koch's driving and the field sobriety tests, Lewis believed Koch had been driving under the influence. Lewis arrested Koch and advised him of his constitutional rights from the Washington State Patrol DUI Arrest Report form; Koch acknowledged that he understood these rights. Melody Martyn, Koch's passenger, testified that because Koch's vehicle was being impounded, she asked Lewis if Koch would be allowed to meet her at a restaurant later that night. Lewis told Martyn that as long as Koch was cooperative and polite, the trooper would return Koch to the restaurant. Koch heard this conversation. Lewis also testified that when he arrests someone for driving under the influence, he always tells the person that '{a}s long as they are cooperative and polite throughout the whole contact they will be going home - they will be going home that evening.' Motion Transcript (MT) at 71. After arresting Koch, Lewis took him to the Fife police station. There, Lewis read Koch the implied consent warnings from the Washington State Patrol DUI Arrest Report form. Koch testified that Lewis angrily confronted another arrested person at the station. According to Koch, he did not want a similar confrontation with Lewis and did not ask for a lawyer or refuse to take the test for fear Lewis would think he was being uncooperative. Koch's breath tests showed alcohol concentration levels of .147 and .141. Koch moved to suppress his breath tests, arguing that Lewis's statements about being polite and cooperative to avoid jail were extraneous to the required statutory implied consent warnings and coerced him into taking the breath test. The district court refused to suppress the test results. Before trial, Koch also moved to exclude testimony concerning the Horizontal Gaze Nystagmus (HGN) test's capacity to show specific levels of intoxication. The court ruled that under State v. Baity, 140 Wn.2d 1, 17- 18, 991 P.2d 1151 (2000), testimony on the HGN test was admissible to show the presence of alcohol but not a specific level of intoxication. The court and the parties discussed the issue primarily as it would relate to Lewis's testimony but, after trial, the court stated that its order applied to the State's toxicologist as well. Lewis testified that when he detects HGN, it tells him '{t}hat there is a chance that there is alcohol in the person's system.' TT at 20. But when the prosecutor asked the toxicologist about the reliability of the HGN test, he testified that it was 'like 91 or 92 percent reliable' at a .08 level. TT at 77. Koch did not object to this testimony but moved for a mistrial, arguing that the prosecutor engaged in misconduct by eliciting this testimony. Koch appealed to the Pierce County Superior Court, which reversed his conviction, holding that his breath test evidence should have been suppressed because of Lewis's statements and because the trial court should have granted a mistrial based on the toxicologist's testimony on HGN reliability. A commissioner of this court granted the State's motion for discretionary review on the implied consent issue; the order also allowed the State to raise the mistrial issue. RAP 2.3(b), (d). ANALYSIS I. Implied Consent Warnings The validity of implied consent warnings is a question of law we review de novo. City of Bellevue v. Moffitt, 87 Wn.

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