State v. Morales

225 P.3d 311

154 Wn. App. 26

STATE of Washington, Respondent, v. Jose Matilde MORALES, Appellant.

No. 36941-9-II.

Court of Appeals of Washington, Division 2.

January 5, 2010.

Anne Mowry Cruser, Law Office of Anne Cruser, Vancouver, WA, for Appellant.

Lori Ellen Smith, Lewis Co. Prosecuting Atty. Office, Chehalis, WA, for Respondent.

HUNT, J.

¶ 1 Jose Matilde Morales appeals his jury convictions for vehicular assault and driving under the influence. He argues that (1) the trial court erroneously admitted his blood alcohol test results because the State failed to show that he was advised of his statutory right to an independent blood test under RCW 46.20.308(2);¹ (2) the trial court erroneously admitted beer containers found during an allegedly illegal search of his vehicle; and (3) the evidence was insufficient to establish that he operated his motor vehicle under the influence of intoxicants and that he operated his vehicle in a reckless manner. We affirm.

FACTS

I. HIT AND RUN

¶ 2 On November 3, 2004, Marilyn Robertson drove her elderly mother north on Highway 507 toward Bucoda, Washington. As she drove around a curve at approximately 35 to 40 mph, Robertson observed Morales's vehicle approaching a stop sign where a side road intersected with Highway 507. Although it was daylight and the intersection was in an open and visible area, Morales made no attempt to stop. Instead, he drove through the stop sign into Robertson's lane of travel, apparently at about 15 miles per hour.²

¶ 3 Robertson, whose right-of-way lane of travel had no stop sign at that intersection, swerved to avoid Morales, but she could not prevent his colliding with her car. The collision's impact spun Robertson's car around, forced it into a ditch, and severed Morales's front bumper from his vehicle. Morales stopped momentarily and then drove away; he did not return to the accident scene. As a result of the collision, Robertson suffered injuries to her knees, shoulders, neck, and forehead. Her mother suffered a fractured ankle and a twisted foot.

A. Arrest for DUI³

¶ 4 Shortly after the accident, retired police officer William Oberg and his brother were driving south on Highway 507 when they passed a heavily damaged vehicle driving in the opposite direction; its hood was sticking up and steam was coming from its engine. As they continued driving, they came upon Robertson's vehicle in the ditch. On learning about the hit and run collision, Oberg turned around and drove back with his brother to look for the damaged vehicle that they had passed earlier. Oberg found the damaged car on the side of the road approximately one mile from the accident scene.

¶ 5 Oberg observed Morales exit the vehicle, and detained him while his (Oberg's) brother called for assistance. When Oberg told Morales, in English, that he should have stayed at the accident scene, Morales stated, in English, "I don't care about the people in the accident." 2 Verbatim Report of Proceedings (VRP) at 158. Morales also threatened both Oberg brothers.

¶ 6 Washington State Trooper Todd Thornburg arrived, conversed with Morales in English, and experienced no language barrier. Morales appeared to understand the trooper's questions, gave no indication that he did not understand, and provided intelligible answers in English. Morales told the trooper that he had been headed to Tenino when someone pulled out in front of him, that he (Morales) was the driver and the only occupant of his vehicle, and that he had consumed one beer before driving.

¶ 7 During his contact with Morales, Thornburg observed that Morales emitted an "obvious odor of intoxicants" and that his eyes were watery and bloodshot. 2 VRP at 174. Thornburg arrested Morales for driving under the influence of alcohol and for hit and run and read him his Miranda⁴ rights in English. Morales responded verbally, in English, that he understood his rights. Before an ambulance took Morales to the hospital, Thornburg searched Morales incident to his arrest and found an identification card and two keys.

¶ 8 Washington State Trooper Terry Brunstad also spoke with Morales at the site where Oberg had detained him. Brunstad similarly noticed that Morales's eyes were bloodshot and watery, that Morales's pupils were constricted, and that Morales smelled of alcohol.

B. Search of Vehicle

¶ 9 After Morales left in the ambulance, Thornburg searched Morales's vehicle. From outside the car, Thornburg saw two beer cans on the right front seat, but he could not tell whether they were open. Once inside the vehicle, he smelled intoxicants, and found a total of five beer containers — the two beer cans on the front passenger seat, one full and one empty; and two full beer bottles and one empty beer can behind the driver's seat.

¶ 10 Thornburg inserted into the ignition one of the keys that he had found on Morales. The key fit and unlocked the ignition, but the damage sustained during the collision prevented the engine from starting. Thornburg then impounded Morales's vehicle and inventoried the items found inside, as is common practice for troopers in this situation. The police later matched Morales's rear license plate with the license plate on the front bumper left behind at the accident scene.

C. Blood Draw at Hospital

¶ 11 Meanwhile, Washington State Trooper Robert Huss remained at the collision scene. Emergency personnel told him that Robertson's mother had suffered a fractured right ankle. Huss used his radio to inform Thornburg about the fracture. Thornburg informed Brunstad that they would be processing Morales for vehicular assault. Brunstad then followed Morales to the hospital to conduct a mandatory blood draw under RCW 46.20.308(3).

¶ 12 When Brunstad arrived at the hospital, he contacted a Spanish/English interpreter who worked in the emergency room to provide Spanish translation for Morales.⁵ Brunstad gave the Spanish interpreter forms from which to read Morales his Miranda rights and the special statutory notice⁶ informing the arrestee of his right to an independent blood alcohol test.⁷ Morales asked no clarifying questions during or after hearing the interpreter read to him from the forms in Spanish; nor did he appear unable to understand what he heard. On the contrary, Morales signed Brunstad's forms, indicating that he understood his constitutional rights and the special statutory notice of his right to an independent blood test.

¶ 13 Brunstad then asked Morales approximately 30 DUI interview questions: Brunstad read the questions in English and the interpreter restated them in Spanish. Morales's translated responses were appropriate to the questions asked, suggesting that the translator was accurately translating the questions and Morales's responses.

II. PROCEDURE

¶ 14 The State charged Morales with hit and run with an injury,⁸ vehicular assault,⁹ driving under the influence,¹⁰ and first degree driving while license suspended (DWLS).¹¹ The State later dismissed the fourth count, DWLS.

A. CrR 3.5 Hearing

¶ 15 Morales moved to exclude the statement he had made during his hospital interview with Brunstad, arguing that he had not been properly advised of his constitutional Miranda rights before he made these statements. Brunstad, who did not speak Spanish, could not verify exactly what the interpreter had read to Morales in Spanish. The State neither identified the hospital interpreter nor called him to testify. Accordingly, the trial court ruled that the State had failed to prove beyond a reasonable doubt that Morales had understood and knowingly and voluntarily waived his constitutional Miranda rights. And the trial court excluded Morales's answers to the 30 DUI interview questions that Brunstad had asked through the interpreter.¹²

B. CrR 3.6 Hearing

¶ 16 During an evidentiary hearing¹³ on the first morning of trial, Morales's counsel moved under CrR 3.6 to suppress the evidence found in Morales's vehicle. He argued that the trooper's search did not fall within the "search incident to arrest" exception to the warrant requirement because Morales was at the hospital during the vehicle's search and no longer present at the scene. The trial court agreed. Nevertheless, the trial court ruled the beer cans and bottles admissible under a different exception to the warrant requirement — the doctrine of inevitable discovery — based on Thornburg's impounding and inventorying Morales's disabled vehicle left on the roadside.

C. Statutory Notice of Right to Independent Blood Test

¶ 17 At trial, Morales asked the trial court to exclude his blood alcohol test results and the testimony about the special statutory notice, based on the court's earlier exclusion of the DUI interview questions. Morales argued that the blood draw was improper because the State could not show he had received the special statutory notice about his right to independent blood alcohol testing. But Brunstad testified that he had instructed the interpreter to read Morales the special notice form in Spanish and that the interpreter apparently did so. Morales presented no testimony and made no offer of proof that he had not received the special notice or that he did not understand the notice the interpreter read to him.

¶ 18 Engaging in a statutory analysis of RCW 46.20.308, however, the trial court concluded that (1) when a suspect is arrested for vehicular assault or vehicular homicide based on an accident involving serious bodily injury to another, a mandatory blood test is administered, even without the arrestee's consent; and (2) therefore, no special notice about the right to an independent blood test is required.¹⁴ The trial court denied Morales's motion and admitted evidence that his blood draw revealed .12 grams of alcohol per 100 milliliters of blood.

D. Verdict and Sentence

¶ 19 Morales conceded guilt on the hit and run count. The jury found him guilty of all three charges and returned a special verdict for the vehicular assault, finding that...