# I
I 

# t FILED JAN27, 2015 In theOfficeofthe ClerkofCourt W AStateCourtofAppeals, Division III

IN THE COURTOFAPPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 31776-5-111 ) Respondent, ) ) v. ) ) ELOYA. GARZA, ) UNPUBLISHED OPINION ) Appellant. ) BROWN, A.C.J.
- EloyAnthony Garza appeals his conviction forvehicular assault. He contendsthe trial court erred in (1) admitting his alleged custodial statements made in the back ofa patrol carwithout necessarywarnings, and (2) admitting warrantless, alleged unconstitutional blood alcohol content (BAC) implied consent results under RCW46.20.308. We conclude Mr. Garza's statementswere notcustodial orcoerced, and any error in admitting the BAC results was harmless without reaching Mr. Garza's constitutional concerns. Accordingly, we affirm. FACTS On February 19, 2011, Mr. Garza and his cousin Michael Garza attended an evening party atVictoria Gil's housewhere Mr. Garza admitted drinking beerand vodka. According to Ms. Gil, after Mr. Garza argued with his ex-girlfriend, she, Michael,

### No. 31776-5-111 State v. Garza
Mr. Garza, and an unnamed fourth person leftthe party in a car. According to the defense, Michael helped an intoxicated Mr. Garza into the right rear passenger seat, an intoxicated Ms. Gil sat behind the driver in the left rear seat, Michael sat in the back as well, and the fourth person was most likelythe driver. Laterthatevening, Washington State patrol troopers responded to the scene ofa one-car collision. The car, belonging to Ms. Gil, had crashed into a tree. Upon arrival, Troopers Todd Haddorffand Seth Berghofffound the car abandoned with the right front passengerdoor and left rear passengerdoor ajar. The driver'S doorwasjammed shut. Thetroopers noticed the airbags had recently been deployed and sawwhat appeared to be blood on the driver'S airbag. Motorists advised the troopers a man was seen walking in the area. Trooper Berghoffwentto find the man and found Mr. Garza. Mr. Garza was soaking wet and shivering in thefreezing conditions. After Trooper Berghoffcontacted him, Mr. Garza asked if he could sit in the patrol car. Trooper Berghoff patted Mr. Garza down for safety purposes, wrapped a blanket around him, helped him, unhandcuffed, into the backseat ofthe patrol car, shutthe door, and turned upthe heat. Trooper Berghoffasked Mr. Garza if he had been involved in the
car accident. In his now contested statement, Mr. Garza said he wasjusttrying to get home and had missed his turn to Higgins Road. When Trooper Berghoffasked if he had been driving, Mr. Garza replied he did not knowwho the driverwas. Trooper Berghoffcould smell "an obvious odor of intoxicants coming from [Mr. Garza's] person"

2No. 31776-5-111 State v. Garza
and noticed Mr. Garza's bloodshot, watery eyes. Report of Proceedings (RP) at 342. Trooper Berghofftook Mr. Garza to the hospital after he complained ofshoulder pain. Atthe hospital, Trooper Haddorffsaw both Ms. Gil and Mr. Garza. Ms. Gil was slurring her words, had watery eyes, smelled ofalcohol, and had broken her arm. Mr. Garza had watery, bloodshot eyes, smelled ofalcohol, was soaking wet, and had dirt on his face. His movementswere lethargic and slow, and he was unresponsive. When Gloria Garza, Mr. Garza's mother, saw him in the hospital, she similarly observed Mr. Garza was "drunkerthan I've ever seen him in my life," was "not really conscious of where hewas or who we were talking to," and was generally not responding well. RP at 421-22. While in the hospital, Trooper Haddorff read Mr. Garza his rights twice as well as the special evidence warning for blood draws. When asked ifhe understood his rights, Mr. Garza did not respond. In reading Mr. Garzathe special evidence warning, Trooper Haddorffadvised Mr. Garza he was under arrest. Subsequently, Mr. Garza's blood was drawn to determine his BAC, which was determined to be 0.17 grams per hundred milliliters, well abovethe legal limit. Detective William Bryan, atechnical collision investigator, investigated the accident and found blood on the driver's airbag and stretching ofthe driver'S seatbelt. Detective Bryan opined the driverwould strike the driver'S airbag, and, as the driver'S door did not open, it was unlikelythe other passengers were the source ofthe blood because theywould have no reason to be in the driver's area. Deoxyribonucleic acid

3No. 31776-5-111 State v. Garza (DNA) testing ofthe blood stain and the blood obtained from Mr. Garza atthe hospital later showed the blood on the airbag was Mr. Garza's. The stretching ofthe seatbelt indicated someone wore it atthe time ofthe collision. According to Detective Bryan, a violent collision could leave marks on the person wearing the seatbelt. Had they been wearing seatbelts, the driverand the passenger behind the driverwould have marks on . their left collarbone/shoulder. Mr. Garza had marks on his left shoulder, and he fractured his left collarbone in the accident. Before the DNA results were returned, Detective Bryan believed Michael Garza was the probable driver; when he spokewith Mr. Garza by phone on March 18, 2011, he did not suspect Mr. Garza was the driver. In April 2012, the State charged Mr. Garza with one countofvehicular assault. The trial court held a combined 3.5/3.6 hearing to determinewhetherthe statements Mr. Garza made to Trooper Berghoffwhile inside the patrol car were admissible and whetherthe blood draw should be suppressed. The trial court concluded Mr. Garza
was not in custodywhen he made his statements, Miranda warnings were not needed, and the statements were admissible. The trial court denied Mr. Garza's motionto suppress the blood draw, finding the blood drawwasjustified underthe implied consent statute, RCW46.20.308. Mr. Garza was convicted as charged. He appealed.



### 4No. 31776-5-111 State v. Garza
ANALYSIS 

### A. StatementAdmissibility The issue is whetherthe trial court erred in admitting Mr. Garza's admissions made while he was in Trooper Berghoff's patrol car as noncustodial statements. Mr. Garza contends the setting was custodial, thus requiring Miranda1warnings. Although Mr. Garza argues his statements were custodial, he does not challenge the trial court's CrR 3.5 findings offact. "Unchallenged findings offacts areverities on appeal." State v. Lorenz, 152Wn. 2d 22,36,93 P.3d 133 (2004). We review a trial court's custodial determination de novo. Id. Miranda warnings "protect a defendant's constitutional right notto make incriminating confessions or admissions to police while in the coercive environment ofpolice custody." State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004). Ifa state agent interrogates a suspect in custody without giving Miranda warnings, any testimonial evidence elicited cannot be used againstthe suspect at trial. Heinemann v. Whitman CountyDist. Court, 105 Wn.2d 796,801,718 P.2d 789 (1986). Thus, Miranda warnings are required when a suspect is subjected to (1) custodial (2) interrogation (3) by a state agent. Heritage, 152Wn.2d at214. Here, the sole disputed element is whetherthe questioning was custodial. "A defendant is in custody for purposes of Miranda when his or herfreedom of action is curtailed to a degree associated with formal arrest." State v. Grogan, 147 Wn.

1 Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

### 5No. 31776-5-111 State v. Garza App. 511, 517,195 P.3d 1017 (2008) (internal quotation marks omitted) (citation omitted). We use an objective testto ascertain "whether a reasonable person in the individual's position would believe he orshe was in police custodyto a degree associated with formal arrest." Lorenz, 152 Wn.2d at 37. Not all police encounters are custodial. Forexample, in a TerrYstop situation, the police are allowed to ask questions without rendering a suspect "in custody." See Berkemerv. McCarty, 468 U.S. 420,440,104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); see also Heritage, 152 Wn.2d at 218 (Washington courts agree questioning during "a routine Tenystop is not custodial forthe purposes of Miranda"). In a Tenystop, the police can "ask a moderate number ofquestions

...to determinethe identity ofthe suspect and to confirm or dispel the officer's suspicions" without providing a person with Miranda warnings. Heritage, 152 Wn.2d at 218. We must determine ifa reasonable person in Mr. Garza's position would have believed his freedom was curtailed to a degree associated with arrest when Trooper Berghoffasked him if he was involved in an accident. Thefacts as found by thetrial court show Trooper Berghoffsaw Mr. Garza walking along a road soaking wet, shivering, and trailing water behind him. Thetrooper exited his patrol car without activating his lights and contacted Mr. Garza. Mr. Garza voluntarily asked to sit in the patrol carto warm up. Trooper Berghoff patted down Mr. Garza to ensure officer safety
as a normal practice. Then, thetrooperwrapped Mr. Garza in a blanket, allowed him to

2 Teny v. Ohio, 392 U.S. 1,88 S. Ct. 1868,20 L. Ed. 2d 889 (1968). 6

### No. 31776-5-111 State v. Garza
sit in the back seat of his patrol carwithout handcuffs, and shutthe doorsto maintain the heat. At no time while Mr. Garza was seated in the patrol car did the troopertell Mr. Garza he was under arrest orwas not allowed to leave. Trooper Berghoffthen generally asked whether Mr. Garza was involved in the car accident and if he was the driver. Mr. Garza voluntarily responded, saying he had been trying to get home, had missed histurn, and did not know who was driving. The trial courtfound no evidence of coercion, concluded the statementswere made voluntarily in a noncustodial situation, and allowed the statements into the trial evidence. 

## J When Trooper Berghoffasked if Mr. Garza was involved in the accidentand if he 

# i had been driving, Trooper Berghoffwas making general inquiries in an attemptto get 

# I 'i information aboutthe abandoned accident scene. Mr. Garza's custody argumentsfail. 1 '# First, a quick patdown before being allowed in a police car is a reasonable action to 

# I ensure an officer's safety and would not lead a reasonable person to believe theywere 

# i not free to leave. Second, while Trooper Berghoff placed Mr. Garza in the car, he did 

## I 

# I ! so at Mr. Garza's request. And lastly, while Mr. Garza could not open the patrol car 

# I doorswithoutTrooper Berghoff's assistance, Trooper Berghoffgave no indication he 

# i would not open the doors had he been asked to do so. Furthermore, the doors had 

# I I been shut notto keep Mr. Garza from leaving but instead to warm up a man who had 

### I


### , i been soaking wet and walking around outside in freezing temperatures. Given this record, we conclude the statements were voluntarily made in a noncustodial environmentwithout coercion. Mr. Garza's freedom was not curtailed to a



### 7

# !
s 

# j No. 31776-5-111 

# I State v. Garza**~** 

# j degree associated with arrest. This encounterwas more similarto a Terrystop when 

# I Mr. Garza stated he was trying to get home, he had missed his turn, and he did not knowwho was driving. As such, no Miranda warnings were rieeded, and the 

# I , statements were admissible. In sum, the trial court did not err in allowing the challenged statements.3 

# I 1 t B. Warrantless Blood Draw The issue is whetherthe trial courterred in denying Mr. Garza's suppression motion forthe warrantless blood draw. Mr. Garza first contends a warrant was required 

# 1 i underthe Supreme Court's recent holding in Missouri v. McNeelydeciding "the natural 

# I dissipation ofalcohol in the blood" is nota perse exigencyjustifying a warrantless blood draw. Missouri v. McNeely,

_ U.S. _, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696 (2013). Second, he contends the blood drawwas not authorized underWashington's 

# I
implied consent statute, RCW46.20.308, because McNeelyvitiates the law's sections permitting warrantless blood draws in cases of persons arrested forvehicular assault or

3 While we conclude the statements were admissible, even ifthey were obtained while Mr. Garza was in custody, admission ofthe statements was harmless error. See State v. Guloy, 104Wn.2d 412, 425-26,705 P.2d 1182 (1985) (erroneous admission is harmless error ifthe untainted evidence is so overwhelming a reasonablejury would have reached the same result absent the admission). Mr. Garza's statement that "he justwanted to get home" does not implywhether hewas the driver or not. RP at 338. His admission he did not knowwhothe driverwas helps his case and is consistentwith his testimony. And his statement he missed his turn implies he was the driver, but other evidence corroborates this implication: the blood on the airbag was Mr. Garza's; the driver's seatbelt had been worn, and Mr. Garza had injuries consistentwith being the driver; and the driver's doorwas stuck, making it unlikely a person otherthan the driver got blood on the airbag. Additionally, because we conclude Mr. Garza was not in custodywhile in the back ofTrooper Berghoff's patrol car, we do not addressthe State's alternative community caretaking arguments. 8No. 31776-5-111 State 

### v. Garza
who are unconsciouswhen the blood drawwas performed. Mr. Garza's second contention is discussed first, and because it is dispositive based on harmless errorwe do not reach Mr. Garza'sfirst contention or his constitutional concerns. In reviewing the denial ofa suppression motion, we "determine[] whether substantial evidence supports the challenged findings offact and whetherthe findings supportthe conclusions of law." State v. Garvin, 166Wn.2d 242, 249, 207 P.3d 1266 (2009). Substantial evidence exists when it is enough "to persuade a fair-minded person ofthetruth ofthe stated premise." Id. (citation omitted). Conclusions of law from an order on a suppression motion are reviewed de novo. Id. U[T]he taking ofblood samples constitutes a 'search and seizure' within the meaning of U.S. CONST. amend. 4 and CONST. art. 1, 

### § 7." State v. Judge, 100Wn.2d 706,711,675 P.2d 219 (1984). 

### U[A] warrantless search ofthe person is reasonable only if itfalls within a recognized exception," such as consent orexigent circumstances. McNeely, 133 S. Ct. at 1558,1566; see State v. Duncan, 146Wn.2d 166,171-72,43 P.3d 513 (2002). RCW46.20.3084 "creates a statutory presumption that anyone

4 On the date ofthe accident, February 19, 2011, RCW46.20.308(3) read: Except as provided in this section, the test administered shall be ofthe breath only. Ifan individual is unconscious or is under arrestforthe crime offelony driving underthe influence ofintoxicating liquor ordrugs under RECW46.61.502(6), felony physical control ofa motorvehicle while under the influence ofintoxicating liquor ordrugs under RCW46.61.504(6), vehicular homicide as provided in RCW 46.61.520, or vehicular assault as provided in RCW46.61.522. or ifan individual is under arrestforthe crime ofdriving while underthe influence ofintoxicating liquor or drugs as provided in RCW46.61.502, which arrest results from an accident in which there has been serious bodily injury to another person, a breath or 9No. 31776-5-111 State 

### v. Garza
arrested for driving underthe influence ofalcohol has consented to a ... blood testfor purposes ofdetermining [BAC]." State v. Morales, 173Wn.2d 560, 568,269 P.3d 263 (2012); RCW46.20.308(1). Unless a driver is arrested forvehicular assault or is unconscious, the driver may withdraw his consent. Id.; see also State 

### v. Steinbrunn, 54 Wn. App. 506, 509-10, 774 P.2d 55 (1989) (holding an unconscious driver must also be arrested before police can lawfullytake a warrantless blood sample). Thus, "[a] lawful arrest is a prerequisite to the application ofthe implied consent statute." O'Neil/v. Oep't ofLicensing, 62Wn. App.112, 116,813 P.2d 166 (1991). On appeal, a party may assign evidentiary error only on a specific ground made at trial. State 

### v. Guloy, 104Wn.2d 412, 422,705 P.2d 1182 (1985). Requiring such objections at trial gives the trial courtthe chance to prevent or cure the error. State 

### v. Boast, 87 Wn.2d 447, 451,553 P.2d 1322 (1976). The State contends appellate review is precluded because (1) Mr. Garza failed to preserve his error claims regarding whether he was arrested or unconsciousforthe purpose of RCW46.20.308, as he did not object at trial on those grounds, and (2) at trial, no discussion by the trial court oreither party occurred concerning whether Mr. Garza was unconscious for purposes of RCW46.20.308. Mr. Garza did raise the arrest issue; thus, it is properly before us. While his suppression motion focused primarily on his McNeelywarrant-requirement argument, he did briefly argue no statutory exception existed to thewarrant requirement. The**tr~1** blood test may be administered without the consent ofthe individual so arrested. 10No. 31776-5-111 State v. Garza
court presumably inferred this meant RCW46.20.308 was not applicable, as it based its conclusions of lawfrom the 3.6 motion on that statute. Furthermore, both the State and Mr. Garza questioned the troopers aboutwhether Mr. Garza was under arrestwhen the blood was drawn. Mr. Garza challenges two ofthe trial court's findings offact regarding arrest. The courtfound (1) "Afterspeaking with the victim, the troopers decided to arrestthe defendantfor VehicularAssault" and (2) "At approximately 0048 hours, the Trooper

... advised [Mr. Garza] he was placed under arrestfor VehicularAssault." Clerk's Papers at 102. These findings are supported by substantial evidence. The special evidence warning informs a suspectthat he is under arrest. By reading this warning to Mr. Garza, Trooper Haddorff placed Mr. Garza under arrest. The trial court did noterr in admitting the BAC result under RCW 46.20.308(3). However, even ifformer RCW46.20.308 (2011) is unconstitutional, we conclude anyerror in admitting the BAC result is harmless beyond a reasonable doubt. Any error in admitting unconstitutionally obtained evidence is subjectto the constitutional harmless errortest. See State 

### v. Peele, 10Wn. App. 58, 66, 516 P.2d 788 (1973). "A constitutional error is harmless ifthe appellate court is convinced beyond a reasonable doubtthat any reasonablejurywould have reached the same result in the absence of the error." Guloy, 104Wn.2d at425-26 (applying the "'overwhelming untainted evidence' test" in which an appellate court "determine[s] ifthe untainted evidence is so overwhelming that it necessarily leads to a finding ofguilt"). In light ofthe untainted

11No. 31776-5-111 State v. Garza evidence, Mr. Garza was without doubt intoxicated that night. First, troopers noticed Mr. Garza had watery, bloodshot eyes and smelled "an obvious odor of intoxicants coming from [Mr. Garza's] person." RP at 219,342. Second, Mr. Garza admitted to Detective Bryan he was drunkthat night and could not remember much. Third, Ms. Gil, Mr. Garza's mother, and Mr. Garza himselftestified attrial that Mr. Garza was drunk. A reasonablejurywould have reached the same result-that Mr. Garza was intoxicatedeven in the absence ofthe BAC.5 Given our reasoning, we do not reach Mr. Garza's first contention concerning the constitutionality of RCW46.20.308. When a case can be decided on nonconstitutional grounds, appellate courts should refrain from deciding constitutional issues. See State
v. Speaks, 119Wn.2d 204,207,829 P.2d 1096 (1992). Additionally, theWashington Supreme Courtwill be hearing a case on whether, notwithstanding RCW46.20.308, a search warrant or actual consent is needed to obtain a breath testfrom a person stopped on suspicion ofdriving underthe influence.6 Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuant to RCW

5 The State aptly notes Mr. Garza moved solely to suppress the BAC results and not the DNA results. No issue is raised here concerning DNA evidence admissibility. Thejury answered thefact question ofwhether Mr. Garza was the driver against him based on strong evidence, including the DNA results. 6 The case number is 90419-7 (State v. BairdandAdams). The datefor oral argument is notyet set. 12

### No. 31776-5-111 State v. Garza 

### 2,06.040.

WE CONCUR:

Lawrence-Berrey, 

### J.

13