State v. Tysyachuk

13 Wash.App.2d 35

461 P.3d 403

STATE of Washington, Respondent.

v.Artur Veniamin TYSYACHUK, Appellant.

No. 52448-1-II

Court of Appeals of Washington, Division 2.

Filed April 14, 2020

Kevin Hochhalter, Olympic Appeals PLLC, Po Box 55, Adna, WA, for Appellant.

Jeremy Aaron Morris, Glisson & Morris, 623 Dwight St., Port Orchard, WA, for Respondent.

PART PUBLISHED OPINION

Maxa, C.J. ¶1 Artur Tysyachuk appeals his conviction of felony driving under the influence (DUI), first degree driving while suspended or revoked, and failure to have an ignition interlock. The convictions arose from a traffic stop that a Washington State Patrol trooper initiated after observing Tysyachuk making jerky movements when driving, crossing the lane divider line to the right and causing another vehicle to change lanes, and then crossing the fog line to his left.

¶2 In the published portion of this opinion, we hold that (1) the trooper had a reasonable suspicion that Tysyachuk had engaged in criminal activity or a traffic infraction that justified his stop of Tysyachuk’s car, and (2) the trial court did not abuse its discretion in denying Tysyachuk’s motion to bifurcate the trial into two phases: one to determine whether he committed DUI and a second to determine whether he had the required prior DUI offenses to elevate his offense to a felony. In the unpublished portion, we hold that the trial court did not abuse its discretion in admitting the results of a blood alcohol test performed after Tysyachuk’s arrest. Accordingly we affirm Tysyachuk’s convictions.

FACTS

¶3 At 1:40 AM on December 31, 2017, Washington State Patrol trooper Nicholas Smith was driving northbound on Interstate 5 near the Tacoma Dome when he noticed a car driving in the far left lane that was making some "jerking movements." Report of Proceedings (RP) (June 4, 2018) at 34. Smith observed the right two tires of the car cross over the lane divider to the right and saw a vehicle in the adjoining lane slow down and move away into the next lane. The car then braked and moved back into the left lane and crossed over the solid fog line on the left that separated the roadway from the shoulder. Smith then decided to stop the car because the driver was not driving safely. And he believed the swerving – failure to maintain straight travel in a lane – was consistent with possible driving under the influence.

¶4 The driver, later identified as Tysyachuk, showed signs of intoxication so Smith asked him to perform field sobriety tests. Tysyachuk refused. Smith placed Tysyachuk under arrest and transported him to the hospital for a blood draw to test his blood-alcohol concentration. Tests showed a result of 0.20 grams of ethanol per 100 milliliters, which is over twice the legal limit. Because Tysyachuk had three or more prior DUI convictions, the State charged Tysyachuk with felony driving under the influence, first degree driving while in revoked status, and failure to have an ignition interlock.

Motion to Suppress

¶5 Tysyachuk filed a motion to suppress all the evidence arising from the traffic stop and to dismiss the charges, claiming in part that the officer lacked probable cause to stop his car. At the hearing on this motion, Smith testified about his observations as recited above. Smith also testified about his DUI training and extensive experience as a trooper in conducting several hundred traffic stops involving DUI investigations, about 150 of which resulted in DUI arrests.

¶6 In addition, the court admitted video footage from Smith’s dashboard camera. The video footage showed Tysyachuk’s car crossing the lane divider to the right, approximately a car length in front of a vehicle in the right lane. That vehicle signaled and moved to the far right lane as Tysyachuk moved back into his lane, braked, and then crossed the fog line to the left. Smith then activated his lights and siren.

¶7 The trial court denied the motion to suppress based on the lawfulness of the traffic stop. The court entered the following findings:

Trooper Smith was especially well trained and experienced in the detection and investigation of impaired driving cases.

Clerk’s Papers (CP) at 120.

The court had an opportunity to view the footage from the dashboard mounted camera in Trooper Smith’s vehicle, which was admitted as an exhibit at this hearing. The footage appeared to be a fair and accurate depiction of the events in this case and strongly corroborated the testimony of Trooper Smith.

CP at 120-21.

Trooper Smith testified he saw the defendant’s Cadillac Deville in the far left lane making several jerky, unsafe lane maneuvers which brought the Cadillac out of its lane and into the lane to the right.

CP at 123.

The Court finds Trooper Smith’s testimony about the defendant[’s] jerky, unsafe lane maneuvers to be credible. The Court finds the defendant’s vehicle was swerving inside and outside of its lane, and when the defendant’s vehicle left its lane it nearly caused a collision with a vehicle traveling in the neighboring lane. One vehicle in the neighboring lane slowed and merged to the right to avoid the defendant’s unsafe driving.

CP at 123-24.

¶8 The trial court concluded that Smith’s traffic stop of Tysyachuk’s car was lawful:

The defendant’s driving behaviors (weaving in and out of his lane, causing other vehicles to take evasive action to avoid him) provided a reasonable articulable suspicion that criminal activity and/or traffic infractions had occurred, and thus Trooper Smith was justified in initiating a traffic stop of the defendant’s vehicle. It was appropriate and reasonable for Trooper Smith to conduct a traffic detention to investigate why the defendant’s driving was substandard.

CP at 125.

Motion to Bifurcate

¶9 Tysyachuk filed a motion to bifurcate his trial so that the jury would hear evidence of his prior DUI offenses – which elevated his offense to a felony – only if it rendered a guilty verdict on the DUI charge. He argued that the evidence of his prior offenses could cause the jury to believe that he had a propensity to commit DUI. The trial court denied the motion, stating, "I am not going to bifurcate the trial, but I’m more than happy to figure out some other compromise so that you don’t have -- sort of depends on what the defense wants to do. But I don’t believe it’s appropriate to bifurcate, given the case law." 1 RP at 20.

¶10 Tysyachuk then asked for an alternative: allowing Tysyachuk to stipulate to the prior convictions but not have the stipulation read until the jury made a determination on his guilt on the DUI. The trial court denied this request.

¶11 Ultimately, Tysyachuk stipulated that he "had been previously convicted of three or more prior offenses as defined by RCW 46.61.5055 ... within ten years of his arrest." CP at 243. The court included the stipulation in a jury instruction that was given with the jury instructions on the current DUI offense.

¶12 The jury returned guilty verdicts on all charges. Tysyachuk appeals his convictions.

ANALYSIS

A. LAWFULNESS OF THE TRAFFIC STOP

¶13 Tysyachuk argues that the trial court erred in denying his motion to suppress the evidence arising from Smith’s traffic stop because Smith did not have a reasonable suspicion that he was engaging in criminal conduct or committing a traffic infraction. We disagree.

1. Standard of Review

¶14 In evaluating a denial of a motion to suppress evidence, we review the trial court's findings of fact for substantial evidence and review de novo the trial court's conclusions of law based on those findings. State v. Fuentes , 183 Wash.2d 149, 157, 352 P.3d 152 (2015). Evidence is substantial if it is enough to persuade a fair-minded person of the truth of the stated premise. State v. Froehlich , 197 Wash. App. 831, 837, 391 P.3d 559 (2017). Unchallenged findings are treated as verities on appeal. State v. Betancourth , 190 Wash.2d 357, 363, 413 P.3d 566 (2018).

¶15 In making a substantial evidence determination for a motion to suppress, we defer to the trial court’s resolution of conflicting testimony and evaluation of the persuasiveness of the evidence. See State v. Homan , 181 Wash.2d 102, 106, 330 P.3d 182 (2014) (general substantial evidence rule); State v. Hill , 123 Wash.2d 641, 647, 870 P.2d 313 (1994) (motion to suppress).

2. Legal Principles

a. Traffic Stop Justification

¶16 Under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, a law enforcement officer generally cannot seize a person without a warrant. Fuentes , 183 Wash.2d at 157-58, 352 P.3d 152. If a warrantless seizure occurs, the State has the burden of showing that it falls within one of the carefully drawn exceptions to the warrant requirement. State v. Z.U.E. , 183 Wash.2d 610, 617, 352 P.3d 796 (2015).

¶17 One established exception is a brief investigative detention of a person, known as a Terry¹ stop. Id. Warrantless traffic stops are lawful under this exception if the officer had "at least a reasonable articulable suspicion of either criminal activity or a traffic infraction." State v. Chacon Arreola , 176 Wash.2d 284, 292-93, 290 P.3d 983 (2012). The suspicion must be based on specific and articulable facts. Z.U.E. , 183 Wash.2d at 617, 352 P.3d 796. If an officer did not have a reasonable suspicion, a detention is unlawful and evidence discovered during the detention must be suppressed. Fuentes , 183 Wash.2d at 158, 352 P.3d 152.

¶18 We determine the lawfulness of an investigative stop based on the "totality of the circumstances." Id. "The totality of circumstances includes the officer’s training and experience, the location of the stop, the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion on the suspect’s liberty." Id . The focus is on what the officer knew at the inception of the stop. Id.

¶19 An officer can rely on his or her experience to identify seemingly innocent facts as suspicious. State v. Moreno , 173 Wash. App. 479, 492, 294 P.3d...