IN THE COURTOFAPPEALS FORTHE STATE OFWASHINGTON

STATE OFWASHINGTON, No. 77547-2-I

Respondent, v. DIVISION ONE BRIAN DAVID MARTIN, UNPUBLISHED OPINION

Appellant. FILED: April 29, 2019
LEACH, J.

— Brian Martin appeals his convictions for possession of a controlled substance (Alprazolam) and driving under the influence (DUI). He challenges the trial court’s denial of his motion to suppress evidence, claiming that the arresting officer lacked probable cause to arrest him. Because substantial evidence supportsthetrial court’s challenged findings offactshowing probable cause, Martin does notshowerror. We affirm. BACKGROUND Procedural Facts Following a vehicle accident, the State charged Martin with possession of
a controlled substance, DUI (drugs), and bail jumping. Martin asked the trial court to suppress evidence obtained after his arrest. Martin claimed that the arresting officerdid not have probable causeto arrest him. Thetrial courtdeniedNo. 77547-2-I I2

Martin’s request and concluded, based on its 25 factual findings, thatthe totality ofthe circumstances provided probable cause to arrest Martin for DUI. After a five-daytrial, thejuryfound Martin guiltyas charged. Martin appeals. Substantive Facts Witness Merle Humphreys testified at trial that on November 15, 2014, between 9:00 and 10:00 p.m., he was driving southbound on Interstate 5 (1-5) when he saw Martin’s Jaguar hit atruck in front of him. Humphreys testified that hewas traveling at 75 m.p.h. on cruise control and Martin “flew by [him].” Martin passed Humphreys in the far right lane and “at the last minute he went to veer and ipped the back of the truck and went tumbling down the freeway.” Martin’s car flipped end to end and came to a stop in the far left lane. Humphreys described the collision as “violent” and stated that he “was surprised thatsomebodyeven lived through it. [He]wouldn’thavewalked overtothatcarif [he] could have because it looked so mangled.” He pulled overtothe side ofthe road. Later, he talked to “the State Patrol [who he] filled outthe statementfor” at thescene. CoreyWebb, the driverofthe truckthat Martin hit, testified attrial that he
was driving a milktrucktanktrailerat about 55 or60 m.p.h. when hefelt Martin’s
carstrike the left rearcornerofthetruck. Afterthe collision, Webb’s truck“had a flat tire, the fender was bent up, and a couple welds were broken on the suspension.” Webbtalked to “lawenforcement” atthe scene ofthe collision.

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Antonio Tararan, an off-duty police detective, also saw the collision. He testified at trial that he first saw Martin’s car behind him “traveling extremely quickly.” Martin’s car “got so close” that he could not see Martin’s car’s headlights in his rearview mirror and thought Martin was going to hit his vehicle. Tararan then saw Martin hit the back of the milk truck. He approached Martin after the collision. He testified that Martin’s eyes were watery and he was stumbling and slurring his words. Tararan also remembered that Martin “was very determined to try to find medication in the vehicle.” Martin said it was his uncle’s medication and then stated that he had changed lanes and someone had hit him. Tararan told Martin that it was Martin who had hit the truck. While Tararan was speaking with Martin, Tararan observed that Martin was trying to pick up a reflector attached to the roadway. Tararan testified that Martin was “very kind of blaséaboutwhat had happened.

. . . Wasn’t really concerned about, you know, was anyone else hurt, you know, what had really happened. It was like, ‘We need to find the pill bottle.” When TrooperJohn Tyler, the responding officer, arrived, Tararan told Tylerwhat he had seen. Tylertestified atthe suppression hearing that he received a call aboutthe collision around 9:20 p.m. Tyler stated that he was not and is not a drug recognition expert (DRE), which requires training in addition to the Washington State Patrol (WSP) Academy training and the advanced drug intoxication detection training. He attended six months of basic WSP Academy training, which included 40 hours of DUI investigation training, and some, but not all, of

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the

### WSP advanced training in drug intoxication detection. He had made at least two previous arrestsfordrug-related DUIs involving a drug otherthan marijuana. Tyler testified that when he contacted Martin, “It was very hard to understand what he was saying. Itwas very—very slurred speech, almosttothe point that a lot of it didn’t sound like speech so much as just sort of incoherent noises.” Tylerdescribed Martin’s physical appearance as “[v]ery relaxed, almost to where he looked like.

. . he was falling asleep. He seemed to have a really hard time keeping his eyes opened.” Tyler described Martin’s coordination as “very poor. Seemed to have a very hard timejust—staying on his feet.” Tyler observed that “[Martin d]idn’t seem to understand the severity of the actual collision that had happened.” While Tyler and Martin were walking toward Martin’s carto retrieve his identification, he went over to the shoulder. The front bumper of the car was laying in the median of the interstate, and he walked over to the front bumper, and hewas kind ofbending over, and trying to grab it while he’s trying to stay on his feet. He had to be instructed a couple oftimes to leave the front bumper. He was trying to drag it with him back towards the car.

. . . [H]e was struggling pretty significantlyjustto lean overto grabthe bumper. Tyler also testified that Martin did not have any “obvious injuries” to his limbs ortorsothatwould explain his lack ofcoordination, did not complain ofany injuries at the time, was generally oriented to their conversation, and provided
answers to Tyler’s questions. Tyler acknowledged that difficulty staying awake, slurred speech, and lack of balance could be symptoms consistent with a head injury. He observed blood coming from Martin’s mouth and hand. The aid crew

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assessed Martin at the scene but did not transport him anywhere. Martin testified atthe suppression hearing that hewas latertreated fora head injuryand two broken bones in his back. Tyler affirmed that he ‘spoke with the witnesses, specifically, [Tararan], to gettheirversion of howthe collision occurred.” Tyler learned from thewitnesses that Martin moved intothe right laneto passtrafficand then struckthe rearofthe truck as he tried to change lanes. Tyler believed thatthe damage to thefront of Martin’s Jaguarwas from the initial contactwith the truck and the damage tothe sides and top ofthe Jaguarappeared fresh because itwas not rusted. Tyleralso stated thatTararan told him that he had seen Martin grab a prescription pill bottle from the shoulder of the interstate. After his conversation with Tararan, Tyler found an orange prescription pill bottle with no label in the median near the accident scene. The bottle contained several pills, which Martin told Tylerwere his paraplegic uncle’s pills. Tylertestified that based on his observations and the witnesses’ statements, he thought Martin was likely impaired by “some sort of drugs.”Martin consented to provide a sample for the portable breath test (PBT) and did the horizontal gaze nystagmus (HGN) test. The PBT did not show alcohol impairment, and the HGN test did not show nystagmus. ButTyler noted that while he was conducting the HGN test, Martin still had “heavily slurred” speech and was “having a very hard time keeping his eyes open and several

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times looked like he was either passing out or falling asleep.” Following these tests, Tylerarrested Martinfor DUI. After Martin’s arrest, TrooperAnson Statema, a DRE, performed a drug evaluation on Martin and concluded that hewas underthe influence ofa narcotic analgesic like heroin, Oxycodone, orOxyContin. Martin received a blood drawat Providence Hospital afterthe DRE exam pursuantto awarrant. His blood tested positive forthe opiate Oxycodone and the benzodiazepines Aiprazolam (Xanax), Diazepam, and Nordiazepam. The Washington State Crime Lab tested the pills in the prescription bottle. TheywereAlprazolam. ANALYSIS Martin challenges two of the trial court’s findings of fact in its order denying his motion to suppress and contends thatthe court’s remaining findings do not support its conclusion that Tyler had probable cause to arrest him. We disagree. The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution both require that probable cause support a warrantless arrest.1 “Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which the officer has reasonably trustworthy information are sufficient to warrant a person of reasonable caution in a belief that an offense has been committed. Probable

1 Statev. lnman, 2Wn. App. 281, 287-88, 409 P.3d 1138, reviewdenied, 190Wn.2d 1022 (2018). -6-No. 77547-2-I I 7

cause is notatechnical inquiry.”2 This determination rests on “thetotalityoffacts and circumstanceswithin theofficer’s knowledge atthetime ofthe arrest.”3 When reviewing the denial of a request to suppress evidence, we determine whether substantial evidence presented at the suppression hearing supports the challenged findings of fact and whether the findings support the conclusions of law.4 “Evidence is substantial when it is enough ‘to persuade a fair-minded person ofthe truth ofthe stated premise.”5 Unchallenged findings
aretrueon appeal.6 We reviewconclusions oflawde novo.7 First, Martin challenges the finding that “Trooper Tyler had direct observation ofthe defendant. The trooper is not a Drug Recognition Expert, but is qualified to make observations and reach an opinion based on his training and experience.” Martin asserts that substantial evidence does not support this finding “to the extent [that it] is meantto indicate TrooperTylerwas qualified to find probable cause at the time of [the] arrest.” He states that Tyler had some cause to suspect that he was driving impaired as a result of his slurred speech, difficultystaying awake, and compromised balance. But he contendsthatTyler’s testimony that these symptoms could have been consistent with a head injury showsTylerdid not have probable causeto arrest him.

2 Statev. Terrovona, 105Wn.2d 632, 643, 716 P.2d 295 (1986).

~ Statev. Fricks, 91 Wn.2d 391, 398, 588 P.2d 1328 (1979).

~ Statev. Garvin, 166Wn.2d 242, 249, 207 P.3d 1266 (2009).

~ Garvin, 166Wn.2d at249 (quoting Statev. Reid, 98Wn. App. 152, 156, 988 P.2d 1038 (1999)). 6 Statev. O’Neill, 148Wn.2d 564, 571, 62 P.3d 489 (2003).

~ Garvin, 166Wn.2d at249.
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Consistent with the court’s finding, Tyler testified that he interacted with Martin atthe scene and was not a DRE. Contraryto Martin’s argument, Tyler’s observation of symptoms possibly consistent with a head injury does not establish that he could not rely on those and other observations to form an opinion that alcohol or drugs caused Martin’s admitted impairment. Tyler completed the basictraining thattheWSP requires before atrooper mayconduct DUI accident investigations. Martin’s suppression request raised the constitutional issue of whether Tyler had sufficient evidence of impairment to provide probable causeto arrest Martin, notwhetherTylerwas qualified to make observations and draw from them opinions about impairment. Substantial evidence supportsthe court’sfinding. Second, Martin challenges the court’s finding, “The driving is consistent with operating [a] motorvehicle underthe influence. The defendantwas driving
on 1-5 and rear ended [a] milk truck after passing other vehicles on the right. That driving is indicative of impairment.” He claims the suppression hearing record does not support a finding that his driving pattern shows impaired driving. But Tyler testified about the observations the witnesses reported to him. And they saw Martin passing vehicles in the far right lane of the interstate at high speed before huffing the back ofa milktruckwhile trying to change lanes. Martin appears to claim that evidence of his aggressive driving is not, in itself, sufficient to establish probable cause. But the trial court did not make this finding. The trial court found that Martin’s driving was a piece of evidence that supported a
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conclusion that he drove while impaired. The court did not base its probable
cause conclusion on just this finding but on the totality of the circumstances known to Tyler. The record supportsthe court’s challenged finding about part of these circumstances. Last, Martin claims that the trial court’s conclusion of law that Tyler had probable cause to arrest him for DUI does notflow from the remaining findings. But because substantial evidence supports the findings that Martin challenges and Martin does not claim that the court’s conclusion does not flow from all 25 findings, we do notaddress this claim. Similarly, because he does notshowthat his arrest was unlawful, we do not address his claim that the court should not have admitted the results ofthe DRE evaluation and the blood draw completed after his arrest. CONCLUSION Affirmed. 

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WE CONCUR:

did I C

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