STATE v. CARREON, 50121-6-I (Wash.App. 7-7-2003)

STATE OF WASHINGTON, Respondent, v. NERI DOMINGO CARREON, appellant.

No. 50121-6-IThe Court of Appeals of Washington, Division One.
Filed: July 7, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from Superior Court of King County Docket No: 01-1-07660-1 Judgment or order under review Date filed: 03/07/2002

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Maureen Marie Cyr, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.

Counsel for Respondent(s), John Bramwell Castleton Jr, King Co Courthouse, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.

Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

AGID, J.

Neri Carreon appeals his conviction of vehicular homicide. He argues that the officer lacked probable cause to arrest him and that seizure of his clothing and the blood draw were unlawful. We find no reversible error and affirm.

FACTS
In the early morning hours of April 22, 2001, Carreon lost control of the pickup truck he was driving while on the onramp to eastbound Interstate 90 from southbound Interstate 5. The truck ricocheted off Jersey barriers, went over the barriers, and landed 40 feet below on northbound Interstate 5. Carreon’s passenger died of the injuries he sustained in the accident, and Carreon was transported to Harborview Medical Center.

Washington State Patrol Trooper Robin Queen was dispatched to the accident scene. While en route, she was directed to another accident and, after responding to that accident, was told to go directly to Harborview. While Trooper Queen was heading to Harborview, Trooper Curt Boyle, who was the first officer to arrive at the accident scene, briefed her on the accident and told her to determine whether there was probable cause to draw Carreon’s blood.

When Trooper Queen arrived at Harborview, she found Carreon unconscious in the emergency room. She smelled the odor of intoxicants as she came within seven feet of Carreon’s head. The nurse attending Carreon opened the intubator, and Trooper Queen smelled the air coming out of it. She did not detect an odor of intoxicants there.

Trooper Queen called Trooper Boyle and updated him on Carreon’s condition. Trooper Boyle asked Trooper Queen to gather Carreon’s belongings for evidence. Trooper Queen put each item of Carreon’s clothing into a separate bag and smelled the odor of intoxicants and cigarette smoke coming from his shirt. She found a receipt in the pocket of Carreon’s pants that was from Polly Esther’s, a Seattle bar, bearing Carreon’s signature.

After seizing Carreon’s clothing and searching the pockets, Trooper Queen advised Carreon of his constitutional rights and gave him the special evidence warnings regarding the blood draw. Carreon was unconscious and unresponsive. After Trooper Queen read the rights and the warnings, a nurse drew blood from Carreon. The tests showed that Carreon had a 0.12 blood alcohol content.

On April 25, 2001, police detectives interviewed Carreon in the hospital. After he had been advised of his Miranda[1] rights, Carreon told the detectives that he had had two `big’ Bud Lights to drink at the bar.

The State charged Carreon with one count of vehicular homicide under RCW 46.61.520(1)(a). He moved to suppress his clothing and the receipt Trooper Queen had seized. The trial court held a hearing and denied his motion, finding that the evidence was admissible because it was seized during a search incident to a lawful arrest.

A jury found Carreon guilty as charged, and the court sentenced him to a standard range sentence.

DISCUSSION
Carreon challenges the trial court’s conclusion that Trooper Queen lawfully seized Carreon’s clothing without a warrant pursuant to a search incident to a lawful arrest.[2] He argues that the seizure was improper because Trooper Queen lacked probable cause to arrest him.

The State argues that Carreon has waived the issue of the validity of the seizure under this theory. We agree. In his trial memorandum, Carreon states: `Trooper Queen had probable cause to arrest Mr. Carreon for vehicular homicide under RCW 46.61.520.’ By conceding below that there was probable cause to arrest, Carreon is precluded under the invited error doctrine from arguing that the search and seizure of the clothing was invalid because there was no probable cause to arrest.[3] ‘[E]ven where constitutional issues are involved, invited error precludes review.’[4]

Carreon argues that, in light of our Supreme Court’s opinion in State v. O’Neill,[5] the clothing seizure was error because it preceded the arrest.[6]

We agree. But the error was harmless because neither the clothing nor the receipt was admitted, so the seizure had no effect on the outcome of the trial and could not have prejudiced Carreon.[7]

Next, Carreon argues that the blood draw was an unlawful search because Trooper Queen had neither probable cause to arrest him nor reasonable grounds to believe he had been driving under the influence of intoxicants. He also asserts he was not informed of his right to have an independent blood test. Again, Carreon invited the error of which he complains on appeal, not only because he conceded below that Trooper Queen had probable cause to arrest him, but also because he specifically withdrew his motion before the trial court to suppress the blood draw and its result.[8] In any event, the blood draw was valid under the implied consent statute, RCW 46.20.308(1).

There are two prerequisites to a motorist’s implied consent to a breath or blood test: a lawful arrest of the motorist and the arresting officer’s reasonable grounds to believe that the person arrested had been driving a motor vehicle while under the influence of intoxicating liquor.[9] The requirement of a lawful arrest is a prerequisite to the blood draw even where the driver is unconscious.[10]

There is probable cause to arrest without a warrant when a police officer has reasonable grounds to believe the person to be arrested has committed a crime.[11] Probable cause does not require evidence that would establish guilt beyond a reasonable doubt.[12] In determining whether there is probable cause, we consider the totality of the facts and circumstances within the officer’s knowledge at the time of the arrest, taking into consideration the arresting officer’s special experience and expertise.[13]

Here, Trooper Queen had probable cause to arrest Carreon for vehicular homicide.[14] At the time she entered the emergency room, Trooper Queen knew Carreon had been involved in an automobile accident and knew the general details about where it occurred and where the truck landed. She also smelled the odor of intoxicants when she was within seven feet of Carreon’s head. The fact that she did not smell intoxicants in the air coming out of Carreon’s intubator does not change the fact that she smelled intoxicants when she walked into the room. It is doubtful that the source of the odor could have been anyone but Carreon.[15]
Additionally, the fellow officer rule allows us to impute to Trooper Queen knowledge Trooper Boyle, who was at the accident scene, possessed.[16]

These facts and circumstances were sufficient to establish probable cause to arrest Carreon for driving under the influence. We reject Carreon’s argument that more than an odor of intoxicants is required to establish probable cause. In none of the cases he cites does the court actually say that more than an odor is required. It just so happens that, in those cases, more facts were present because the drivers were conscious.[17] Here, by contrast, Carreon was unconscious when Trooper Queen saw him in the hospital. In State v. Steinbrunn,[18] the defendant was unconscious when the trooper smelled intoxicants on his breath. The trooper arrested the defendant and drew a blood sample. The court stated: `When he smelled the odor of intoxicants on Mr. Steinbrunn’s person in the hospital emergency room, he had probable cause to arrest Mr. Steinbrunn for vehicular homicide.’[19] The same reasoning applies here. The fact that the trooper in Steinbrunn knew that the defendant had been involved in a head-on collision does not distinguish Steinbrunn from our case on a relevant ground. The kind of collision was not a factor in the court’s conclusion that the trooper had probable cause to arrest the defendant.

Although the requirement of reasonable grounds to believe the defendant was driving under the influence is separate from the requirement of probable cause to arrest,[20] an officer’s observations supporting probable cause to arrest may also support reasonable grounds.[21] Here, the same facts that gave Trooper Queen probable cause to arrest Carreon for vehicular homicide gave her reasonable grounds to believe he was driving while under the influence of intoxicating liquor. Therefore, she was authorized to order the blood draw.[22]

Finally, Carreon argues the blood draw must be suppressed because he was not informed of his right to have an independent test. We disagree.

RCW 46.20.308(2) requires an officer to inform the defendant of the right to have additional blood or breath tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. However, ‘[t]he failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.’[23]
Further, where a defendant is unconscious, an officer need not advise him of the right to an independent test because giving the notice to an unconscious person would be a useless act.[24] Here, Trooper Queen advised Carreon of his right to an independent test even though he was unconscious. Carreon argues that she should have waited or checked back a short time after the blood draw to see if he had regained consciousness and again advised him of the right to an independent test. But, as he concedes, the record does not indicate precisely when he regained consciousness. All the record establishes is that he was awake and responsive three days after the accident when the detectives came to his hospital room and questioned him. By that time it was obviously too late to draw his blood for testing. He cites no authority for the argument that Trooper Queen should have continued to check on him until he regained consciousness and then advised him of his right to an independent test, nor does such authority appear to exist. We reject his argument.

Carreon’s conviction is affirmed.

ELLINGTON and COLEMAN, JJ., concur.

[1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).
[2] We reject the State’s argument that the trial court’s finding is a verity on appeal because Carreon failed to properly assign error to it. Carreon’s assignment of error reads: `The trial judge erred in finding Mr. Carreon was under lawful arrest for vehicular homicide at the time his clothing was searched.’ This is sufficient. Although RAP 10.3(g) requires an assignment of error to refer to a finding of fact by number, Carreon could not do that here because the finding is not numbered.
[3] See State v. Studd, 137 Wn.2d 533, 546-47, 973 P.2d 1049 (1999).
[4] State v. Carpenter, 52 Wn. App. 680, 684, 763 P.2d 455
(1988).
[5] 148 Wn.2d 564, 62 P.3d 489 (2003).
[6] ‘[A] warrantless search incident to arrest requires as a prerequisite to the search a lawful custodial arrest as the authority of law justifying the search.’ O’Neill, 148 Wn.2d at 571. O’Neill was denied before the trial court ruled in this case.
[7] See State v. Linehan, 147 Wn.2d 638, 643, 56 P.3d 542 (2002), cert. denied, 123 S.Ct. 1633 (2003).
[8] See State v. Walton, 76 Wn. App. 364, 368-70, 884 P.2d 1348
(1994) (Where a defendant clearly recognizes an issue at the time of trial, but consciously decides not to raise it at trial, the defendant is deemed to have waived the issue and cannot raise it for the first time on appeal, even if it involves a constitutional right), review denied, 126 Wn.2d 1024 (1995).
[9] Clement v. State, Dep’t of Licensing, 109 Wn. App. 371, 374-75, 35 P.3d 1171 (2001), review denied, 146 Wn.2d 1017 (2002).
[10] State v. Steinbrunn, 54 Wn. App. 506, 509-10, 774 P.2d 55
(citing RCW 46.20.309(1) and (3)), review denied, 113 Wn.2d 1015
(1989).
[11] State v. Neeley, 113 Wn. App. 100, 107, 52 P.3d 539 (2002).
[12] Id.
[13] Bokor v. Dep’t of Licensing, 74 Wn. App. 523, 527, 874 P.2d 168
(1994).
[14] The record shows that Trooper Queen knew that Carreon’s passenger had died as a result of the injuries sustained in the accident. So the only question about probable cause has to do with Carreon’s driving under the influence.
[15] Carreon suggests that the odor Trooper Queen smelled could have been gasoline or antifreeze that officers at the accident scene said were present. But, Trooper Queen testified that what she smelled was ‘[d]efinitely not gasoline, gas has a different smell. It was an alcohol smell.’
[16] See Clement, 109 Wn. App. at 375-76 (`Under the fellow officer rule, probable cause may be determined based on the information possessed by the police as a whole when they are acting in concert.’), review denied, 146 Wn.2d 1017 (2002).
[17] See, e.g., O’Neill v. Dep’t of Licensing, 62 Wn. App. at 112 (the defendant wavered and slurred his voice, his speech was thick-tongued, he had watery and bloodshot eyes, and his breath and clothing smelled of alcohol); Bokor v. Dep’t of Licensing, 74 Wn. App. at 523 (the defendant was unable or unwilling to comply with field sobriety tests); Keefe v. Dep’t of Licensing, 46 Wn. App. 627, 731 P.2d 1161 (the defendant swayed during the interview with the trooper and performed very badly on field sobriety tests), review denied, 108 Wn.2d 1018 (1987).
[18] 54 Wn. App. at 506.
[19] Id., 54 Wn. App. at 511.
[20] O’Neill v. Dep’t of Licensing, 62 Wn. App. 112, 116, 813 P.2d 166 (1991).
[21] State v. Avery, 103 Wn. App. 527, 538, 13 P.3d 226 (2000).
[22] We note that Trooper Queen had reasonable grounds to believe Carreon was driving under the influence even without considering the clothing she had seized. The improper seizure of the clothing did not, as defense counsel argued at oral argument, render the blood draw invalid. This is probably why trial counsel withdrew the motion to suppress the test results.
[23] RCW 46.61.506(5).
[24] State v. Barefield, 110 Wn.2d 728, 737, 756 P.2d 731 (1988).