IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. DERRICK HILLS, Appellant. No. 69335-2-

DIVISION ONE UNPUBLISHED OPINION FILED: October 28, 2013
Per Curiam — Derrick Hills appeals his conviction and sentence for 

### possession ofcocaine. He contends, and the State concedes, that the court 

### erred in imposing a substance abuse evaluation and treatment as a community custody condition without firstfinding that he has a chemical dependency as 

### required by RCW 9.94A.607(1).1 We accepttheconcession andremand for the court to strike the condition unless itdetermines "that itcan presently and lawfully



### 1State v.Warnock. 174Wn. App. 608, 299 P.3d 1173 (2013) (chemical dependency finding is a statutory prerequisite to ordering chemical dependency evaluation and treatment): cf State v. Jones, 118 Wn. App. 199, 209-10, 76 P.3d 

### 258 (2003) (failure to make statutorily required finding before ordering mental health treatment and counseling was reversible error even though record contained substantial evidence supporting such a finding).No. 69335-2-1/2 

### comply" with the statutory requirement for a finding that Hills has a chemical 

### dependencythatcontributed tohis offense.2 Because there is no evidence that alcohol contributed to Hills' offense, we 

### also accept the State's concession that the court erred in imposing a community 

## custodycondition requiring Hills to refrain from possessing alcohol.3 This condition must be stricken. The State also concedes, and we concur, that thejudgment and sentence contains a scrivener's error inthat section 4.7(a) (imposing community custody for crimes committed before 7-1-2000) is checked instead ofsection 4.7(c) 

### (imposing community custody for crimes committed after6-30-2000), which is applicable here. The judgment and sentence must be corrected on remand. Hillsraises several additional claims in a pro se statement of additional 

### grounds forreview. He contends the police unlawfully seized him because, while theytestified they smelled marijuana, they did not charge him with possessing marijuana. But how police ultimately charged Hills is immaterial to whether 

### police had the articulable suspicion ofcriminal activity necessary for a lawful 

### seizure.4 The trial court's unchallengedfindings establish that the officers 2See Jones. 118 Wn.App. at 212 n.33. 3RCW9.94A.505(8),.703(3)(f); RCW 9.94B.050(5)(e); State v. McKee, 141 Wn. App. 22, 34, 167 P.3d 575 (2007) (condition prohibiting purchase and possession of alcohol was invalid when alcohol did not play a role in the crime). 4Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986). 2No. 69335-2-1/3 smelled "a strong odor" of marijuana coming directly from Hillsbefore they seized him. The odor ofmarijuana provided an articulable suspicion of criminal activity. To the extent Hills contends there was no basis for the subsequent search, the court's unchallenged findings establish that the officers' pat down and subsequent search ofHills' person werejustified by safety concerns and the 

### authority toconduct a searchincidenttoarrest.5 Hills contends the officers violated his Fifth Amendment rights because 

### they did not give him Miranda6 warnings before asking him aboutthemarijuana odor. Butthe court's unchallenged findings and conclusions establish that Hills


### was not incustody when the officers asked himabout the odor. Accordingly, 

### Miranda warnings were not required.7 Last, Hillscontends the court violated his right to a speedy trial when, over 

### objection, itgranted a two and a half week continuance to August 8, 2012, due to the police witnesses' prescheduled vacations. One officerwas on his 

### honeymoon and the other was out of the office until August 7, 2012. The court continued the trial until August 8, 2012. There was no violation ofHills' right to a



### 5State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993) (protective frisk); State v. Bonds, 174 Wn. App. 553, 569, 299 P.3d 663 (2013) (search incident to arrest). 

### 6Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

### 7"Miranda warnings are required when an interrogation orinterview is (a) custodial (b) interrogation (c) by a state agent." State v. Lorenz. 152 Wn.2d 22, 36, 93P.3d133(2004). 3No. 69335-2-1/4 speedy trial. A preplanned vacation and the unavailability ofwitnesses constitute 

### valid grounds tocontinue atrial dateunder CrR 3.3(f)(2).8 Affirmed in part and remanded for proceedings consistent with this opinion. FOR THE COURT: 

# V(lA,

8See, e.g.. State v. Grillev. 67 Wn. App. 795, 799, 840 P.2d 903 (1992); State v. Nguyen. 68 Wn. App. 906, 914, 847 P.2d 936 (1993; see also State v. Brown. 40 Wn. App. 91, 94-95, 697 P.2d 583 (1985); State v. Day. 51 Wn. App. 544, 548-50, 754 P.2d 1021 (1988). 4