Opinion
No. 31124-1-II
March 30, 2005
Appeal from Superior Court of Clark County. Docket No. 01-2-02768-2. Judgment or order under review. Date filed: 10/17/2003. Judge signing: Hon. John F. Nichols.
Counsel for Appellant(s), Jeanene Armstrong (Appearing Pro Se), 811 North Garrison Road, Vancouver, WA 98664.
Counsel for Respondent(s), Edward Thomas Tylicki, Attorney at Law, 1300 SW 5th Ave Ste 3400, Portland, OR 97201-5640.
Jay Beattie, Attorney at Law, 1300 SW 5th Ave Suite 3400, Portland, OR 97201-5640.
Jeanene Armstrong, as personal representative of the estate of her son, Matthew Beaulieu, sued Jeremy Masker and his parents for the wrongful death of Beaulieu. Jeremy Masker was driving his parents' car when he hit and killed Beaulieu. The Maskers invoked the intoxication defense under RCW 5.40.060, arguing that Beaulieu was intoxicated in violation of RCW 46.61.502(1)(b). The trial court allowed evidence of Beaulieu's blood alcohol levels as measured by medical tests not approved by the Washington State Toxicologist. The trial court also allowed Maskers' attorney to refer to the statutory .08 blood alcohol standard in questioning witnesses and final argument. Armstrong appeals a verdict in Maskers' favor, challenging the trial court's rulings on the blood alcohol evidence and the .08 standard. Finding no reversible error, we affirm.
FACTS I. The Accident and Treatment at Legacy Emanuel
At approximately 12:35 a.m., on October 28, 2000, Masker was driving a vehicle that struck Beaulieu, who was walking across the street at or near a cross walk in Vancouver, Washington. After the accident, an ambulance transported Beaulieu to the Level I Trauma Center at Legacy Emanuel Hospital in Portland, Oregon. Emergency medical personnel inserted two IVs into Beaulieu at the accident scene. When he arrived at Legacy, medical personnel there immediately gave him transfusions of packed red blood cells, which are primarily composed of hematocrit or solid blood cells. Afterward, at 1:15 a.m., Legacy drew Beaulieu's blood for testing.
Legacy is the principal trauma center for the region. The Legacy Emanuel Laboratory is certified to draw and test blood from trauma patients to assist doctors in diagnosing and treating the patients. Jeanette Peck, a Medical Technologist at Legacy, testified that Legacy's protocol is to draw blood from trauma patients for a comprehensive metabolic screen, including a screen for alcohol. The laboratory screened Beaulieu's blood according to this protocol.
When a trauma patient is admitted to the emergency room at Legacy, a medical professional draws blood. The site of the draw is usually swabbed with iodine to avoid contamination. Once the blood is drawn, it is labeled and sent to the laboratory.
At the laboratory, a centrifuge separates the serum/plasma from the hematocrit, the solid portion of the blood. A chemist then puts the serum/plasma specimen into an Olympus AU400/600 Chemistry/Immunoanalyzer for testing, which is an EMIT or `enzyme multiplied amino assay test.' Report of Proceedings (RP) at 487; 493. Beaulieu's serum/plasma underwent this testing procedure.
Although Legacy generally runs a `quality control' with its EMIT alcohol test, it did not run a control on Beaulieu's serum/plasma. Clerk's Papers (CP) at 791. Nor did it run a replicate sample. The EMIT test reported Beaulieu's serum blood alcohol concentration as .237 percent, or 237 milligrams of alcohol per deciliter. Serum/plasma alcohol levels run higher than whole blood alcohol levels by 5 to 35 percent. The statutory limit for ethanol intoxication for the State of Washington is 80 milligrams per deciliter (.08).
II. Medical Examiner's Post-Mortem Blood Test
On October 28, 2000, a medical examiner from the medical examiner's office in Portland performed an autopsy on Beaulieu. In addition to head injuries, the autopsy report described internal injuries, including lacerations to the liver. As part of the autopsy, the examiner drew blood from Beaulieu and sent it to the Oregon Health Sciences University (OHSU) Medical Toxicology unit at Kaiser Permanente.
Medical toxicology tested Beaulieu's blood by gas chromatography. The test showed Beaulieu's whole blood ethanol level was .12 grams per deciliter. The medical examiner explained that Beaulieu may have been metabolizing alcohol between the time Legacy drew blood and his death; he also may have been losing blood or receiving fluids and blood products, which could have diluted the alcohol in his system.
Dr. Robert Swanson, Director of Medical Toxicology at Kaiser testified that the gas chromatography test is accurate, is capable of a duplicate analysis within three percent of the actual result, and includes a control test and a blank test. Swanson testified that the testing lab received Beaulieu's blood sample according to an established chain of custody. He also testified that the lab uses operational safeguards to ensure the accuracy of the result.
III. Expert Witnesses
At trial, the Maskers called Dr. Raymond Grimsbo to testify concerning Beaulieu's blood alcohol concentration and the effect of that concentration at the time of the accident. Grimsbo is a forensic scientist and director of Intermountain Forensic Laboratories in Portland, Oregon. Grimsbo testified that the difference between the EMIT test results of .237, and the gas chromatography test results of .12, could probably be attributed to blood transfusions and fluids Beaulieu received after his initial blood draw at Legacy. Grimsbo maintained that both tests were reliable and commonly accepted in both medical and forensic communities around the world. Further, he explained that serum blood alcohol can be expressed in terms of whole blood alcohol concentration by applying a standard conversion factor.
Grimsbo also testified that considering the blood transfusions, other fluids Beaulieu received, and the metabolic effect of his injured liver, Beaulieu's blood alcohol content was probably around .20 or more at the time of the accident. He testified about correlations between alcohol use, tolerance levels, and age. Overall, he said that `a lot of people' experience confusion with a blood alcohol content of .10. RP at 424. In addition, he said it is likely that a 24-year-old would have impaired judgment and physical difficulty pressing a button at a crosswalk with a.237 blood alcohol concentration.
On cross examination, Grimsbo admitted that the injury to Beaulieu's liver may have slowed the body's ability to metabolize alcohol in his intestines at the time of the accident, which may have resulted in higher blood alcohol readings derived from the draw taken at 1:15 a.m. Also, if Beaulieu's liver was not functioning, he would have maintained his blood alcohol concentration for longer than a person without liver damage. Grimsbo conceded that there is a difference between blood draw procedures for a `legal draw' and a `medical draw' and that Washington's standards for a legal draw are much higher than for a medical draw.
A legal draw is taken for legal purposes and a medical draw is taken for treatment purposes.
Armstrong called Dr. Robert Howard as an expert witness; Howard is chief operating officer for Med Scan Laboratory and Advanced Drug Testing in Williston, North Carolina. He testified that the EMIT, when testing for ethanol, is subject to interference from both isopropyl alcohol and N propenyl, but gas chromatography is not. Although gas chromatography is more reliable, Oregon has approved EMIT for legal blood alcohol testing. Howard had no doubt that the test was conducted in a proper and efficient manner; he did, however, state that confirmation testing was important to increase accuracy.
Howard also explained that a serum or plasma blood alcohol concentration can be converted into a `whole blood' value by considering the portion of the blood that was hematocrit and back-calculating to the whole blood concentration. RP at 516-18. After calculating the numbers on the stand, Howard concluded that at the time of the first draw, Beaulieu's whole blood alcohol concentration was probably around .144.
Armstrong also called Officer Douglas Harada, the Clark County Deputy Sheriff who investigated the accident. Harada testified that in general, a person with a .15 blood alcohol concentration will have substantially impaired judgment and motor skills, depending on the individual's tolerance level.
IV. Procedural Facts
Before trial, Armstrong moved to exclude the blood testing results, arguing that they were unreliable and lacked accuracy and precision. In particular, she argued that the EMIT test results were inadmissible because the test was not performed according to Washington statutes and regulations. In addition, she argued that the Maskers could not prove the accuracy and precision of the test results because of the unknown trauma factors like damage to the liver. Armstrong also moved for an order `[t]hat there be no reference to the `legal standard' for intoxication in Washington or Oregon, and that any reference in any deposition testimony . . . be stricken and not submitted.' CP at 436.
The court denied Armstrong's motion to exclude the EMIT test results and to prohibit counsel from referring to the .08 blood alcohol standard. The court admitted the Legacy toxicology reports, the Legacy laboratory services ethyl alcohol procedure, and the OHSU medical examiner toxicology report.
The jury returned a verdict for the Maskers, finding that Beaulieu was intoxicated, the intoxication was a proximate cause of his death, and that he was more than 50 percent at fault for the accident.
ANALYSIS
Armstrong argues that the trial court should have excluded the blood alcohol tests because they did not meet the standards prescribed by RCW 46.61.506(3) and the Washington State Toxicologist's regulations. She argues that aside from failing the toxicologist's standards, the tests were `unreliable' and, therefore, inadmissible under ER 702 and ER 703. Br. of Appellant at 26; 46. In addition, she argues that the trial court should not have allowed the Maskers to comment on the .08 intoxication level and its relationship to Beaulieu's condition. She argues that RCW 5.40.060 (intoxication defense) applies only to the per se standard (.08) for driving under the influence. Finally, she argues that the blood samples used in both tests may have been contaminated or skewed by the trauma to Beaulieu's organs and that the Maskers did not lay sufficient foundation showing lack of contamination; thus, the results of the tests were inadmissible under ER 702 and ER 703.
I. Standard of Review
We review the trial court's decision to admit evidence for an abuse of discretion. Douglas v. Freeman, 117 Wn.2d 242, 255, 814 P.2d 1160 (1991). A court abuses its discretion when it is exercised in a manifestly unreasonable manner or when it bases its decision on untenable grounds. Burnside v. Simpson Paper Co., 123 Wn.2d 93, 107, 864 P.2d 937 (1994) (citing Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984)).
We review a decision interpreting a statute de novo. State, Dep't of Ecology v. Campbell Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4 (2002) (citation omitted). Our objective is to ascertain and carry out the legislature's intent. Campbell Gwinn, 146 Wn.2d at 9. If a statute's meaning is plain on its face, we follow such plain meaning. Campbell Gwinn, 146 Wn.2d at 9-10 (citing State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001)).
II. `Per Se' versus `non per Se' Violations of RCW 46.61.502
It is a complete defense to an action for personal injuries or wrongful death that the person injured or killed was under the influence of alcohol at the time of the accident, that such condition was a proximate cause of the injury or death, and that the injured or deceased was more than 50 percent at fault. RCW 5.40.060(1). The test for determining whether a person was `under the influence' of intoxicating liquor is the same standard established for criminal convictions under RCW 46.61.502. RCW 5.40.060(1). Moreover, evidence that a person was under the influence of alcohol under the standard established by RCW 46.61.502 is conclusive proof the person was under the influence of alcohol. RCW 5.40.060(1).
RCW 46.61.502 provides in part:
(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state:
(a) And the person has, within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506; or
(b) While the person is under the influence of or affected by intoxicating liquor or any drug; or
(c) While the person is under the combined influence of or affected by intoxicating liquor and any drug.
`RCW 46.61.502 describes a single offense that a driver might commit by more than one method.' State v. Donahue, 105 Wn. App. 67, 73, 18 P.3d 608 (2001) (citing State v. Ortiz, 80 Wn. App. 746, 749, 911 P.2d 411 (1996)). Specifically, a person is guilty of driving under the influence if his blood alcohol level is .08 or higher as described in subsection (a) (per se violation). See Donahue, 105 Wn. App. at 73 (citation omitted). A person is also guilty of driving under the influence of alcohol if there is other competent evidence that he was driving while under the influence of intoxicating liquor as described in subsection (b) (non per se violation). Donahue, 105 Wn. App. at 77.
Under the per se prong, the person's blood must be drawn and analyzed according to the standards set out in RCW 46.61.506 and methods approved by the state toxicologist. RCW 46.61.506(3); WAC 488-14-010. Under RCW 46.61.502(1)(a), if a person has a blood alcohol concentration of .08 or higher, the person is guilty, per se, of driving under the influence of alcohol. See Donahue, 105 Wn. App. at 74 (citing the former version in which the level was 0.10 or higher). In such cases, the prosecution has the burden of proving beyond a reasonable doubt that the .08 reading was correct, and the defendant may attack the accuracy of the results. See Donahue, 105 Wn. App. at 74 (citing State v. Keller, 36 Wn. App. 110, 113, 672 P.2d 412 (1983)).
But the `constraints associated with the per se crime shall not limit the use of `other competent evidence'' when the State seeks a conviction under (b) (non per se). Donahue, 105 Wn. App. at 76 (citing State v. Curran, 116 Wn.2d 174, 182, 804 P.2d 558 (1991)) (in which the Washington Supreme Court interpreted the statute to allow admission of `other competent evidence' even though it did not conform to the statutory per se offense), overruled in part on other grounds, State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997).
III. Non Per Se Violations and `Other Competent Evidence'
Armstrong first argues that the lower court should have granted her motions to exclude the EMIT plasma/serum tests because they did not constitute `other competent evidence.' Br. of Appellant at 22, 23. Specifically, she argues that they were not performed according to the standards prescribed by RCW 46.61.506(3) and the regulations adopted by the Washington State Toxicologist. She maintains that RCW 46.61.506(3) applies to all blood testing (per se and non per se violations of RCW 46.61.502) and that, under the statutes and regulations, blood `alcohol concentration' is expressed in terms of whole blood, not the `serum/plasma' evaluated by the EMIT test. Br. of Appellant at 23. She urges us to abandon our Donahue analysis and hold that where a party uses a blood sample to prove a non per se violation, the blood testing must meet the toxicologist's regulations.
A. Donahue and Other Competent Evidence
In Donahue, as here, an Oregon hospital used a blood analysis method not approved by the Washington State Toxicologist; nor did the Oregon analyst have a permit issued by the Washington State Toxicologist as required under RCW 46.61.506. Donahue, 105 Wn. App. at 74. We held that the results were not admissible as per se evidence that Donahue was `under the influence,' but that they were admissible as other competent evidence of a violation of RCW 46.61.502(1)(b). Donahue, 105 Wn. App. at 74-75.
We explained that unlike the per se violation described in RCW 46.61.502(1)(a), subsection (b) does not refer to any standards or methods that must be followed when testing blood alcohol content. Donahue, 105 Wn. App. at 74. RCW 46.61.502(1)(b) `simply states that a person is guilty of driving while under the influence if the person drives a vehicle `[w]hile the person is under the influence of or affected by intoxicating liquor or any drug.'' Donahue, 105 Wn. App. at 74 (citing RCW 46.61.502(1)(b)). We concluded that for non per se offenses under RCW 46.61.502(1)(b), `the test of admissibility is only whether the evidence proves the person was under the influence of or affected by intoxicating liquor or drug.' Donahue, 105 Wn. App. at 74.
Donahue argued, as Armstrong does here, that RCW 46.61.506 requires that all testing of blood and breath under RCW 46.61.502 comport with the methods approved by the state toxicologist. See Donahue, 105 Wn. App. at 75. In Donahue, we acknowledged that RCW 46.61.506(3) provides `Analysis of a person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose.'' Donahue, 105 Wn. App. at 75. Relying in part on Curran, 116 Wn.2d at 182, we held that RCW 46.61.506(3) did not apply to non per se violations under RCW 46.61.502(b). Donahue, 105 Wn. App. at 76-77.
B. Clark-Munoz and Tests Conducted under Authority of Washington Law
In City of Seattle v. Clark-Munoz, 152 Wn.2d 39, 48, 93 P.3d 141 (2004), the Supreme Court clarified what constitutes `any other competent evidence' for non per se violations. In that case, three defendants were charged with driving under the influence, and defense counsel in each case moved to exclude the results of certain breath tests on the grounds that the test machine thermometers were not properly certified. Clark-Munoz, 152 Wn.2d at 42-43. The Clark-Munoz court held that breath tests that do not comply with an applicable statute and state toxicology regulations were not admissible as `any other competent evidence' of intoxication. See Clark-Munoz, 152 Wn.2d at 48.
Like the court in Donahue, the Clark-Munoz court acknowledged that the `other evidence' section of RCW 46.61.502(1)(b) does not specifically refer to any type of blood or breath testing. Clark-Munoz, 152 Wn.2d at 49. The court added, however, that in drafting RCW 46.61.502, `the legislature was drawing a distinction between tests performed by the State and its agents, pursuant to statute, and other tests, such as tests done at the instigation of the defendant or for medical treatment.' Clark-Munoz, 152 Wn.2d at 49. The court distinguished Donahue because the blood test in that case was done on an injured driver for purposes of `medical diagnosis and treatment.' See Clark-Munoz, 152 Wn.2d at 49-50 (citing Donahue, 105 Wn. App. at 70) (also stating that `[n]ot surprisingly, the Oregon hospital did not use the standards set forth by the Washington State Toxicologist'). The Clark-Munoz court explained that the test in Donahue was admissible as `other evidence' of intoxication `even though it did not meet the standards laid out under Washington law because it was not conducted under the authority of Washington law.' Clark-Munoz, 152 Wn.2d at 50 (citing Donahue, 105 Wn. App. at 69, 75-76) (emphasis added).
In this case, the EMIT test was not conducted under the authority of Washington law; instead, it was conducted as part of a comprehensive metabolic screen to assist medical professionals in giving and determining treatment. Medical draws such as these fall squarely within the Donahue and Clark-Munoz descriptions of `any other competent evidence' of non per se violations under RCW 46.61.502. The trial court did not err in denying Armstrong's motion to exclude the blood test results.
IV. Reliability of the Tests
Armstrong also argues that the court should have excluded both tests because they were `unreliable' and, therefore, inadmissible under ER 702 and ER 703. Br. of Appellant at 26, 46.
First, Armstrong argues that compared to the state toxicologist's approved methods, the serum/plasma EMIT test is `presumably unreliable.' Br. of Appellant at 26. She cites no authority for this rule. Instead, she reasons that `[s]ince Donahue invites the establishment of `foundational admissibility' based on ER 702, and 70[3] as `other competent evidence', that evidence should be as strict as that demanded of blood samples tested by the Washington State Toxicologist.' Br. of Appellant at 27. She correctly notes that `[e]ven under ER 702 and 703 there must be some scientific standards.' Br. of Appellant at 27.
Armstrong repeatedly returns to her argument that the EMIT test must satisfy the criteria laid out in the regulations such as `precision, accuracy, and specificity,' emphasizing that the EMIT test fails to state an `alcohol concentration' in whole blood terms and that the results were obtained for medical, not legal purposes. As we stated in Donahue, Armstrong may challenge the accuracy and reliability of the EMIT test, not for its failure to comply with the regulations, but for its failure to meet the standards of ER 702 and ER 703. See Donahue, 105 Wn. App. at 74.
ER 702 provides that `[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.' ER 703 states, `[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.' If those facts or data are of `a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject,' those facts or data need not be admissible in evidence. ER 703. Under these rules, (1) an expert must qualify as an expert, (2) the expert's opinion must be based on a theory generally accepted in the relevant scientific community, (3) the testimony must be helpful to the trier of fact, and (4) the testimony must be relevant. State v. Cheatam, 150 Wn.2d 626, 645, 81 P.3d 830 (2003) (citations omitted).
Armstrong does not dispute Grimsbo's and Howard's qualifications. She does, however, dispute whether the EMIT test is generally accepted. The court may find general acceptance from the expert's testimony, from articles and publications, from widespread use in the community, or from other court rulings. State v. Kunze, 97 Wn. App. 832, 853, 988 P.2d 977 (1999) (citations omitted).
The Maskers argue that the EMIT test has generally been recognized in courts. Indeed, the Washington Supreme Court accepted EMIT urine tests as evidence of intoxication in prison disciplinary hearings. In the Matter of Johnston, 109 Wn.2d 493, 499-500, 745 P.2d 864 (1987) (concluding that a single positive result to an EMIT urinalysis test clearly provides `some evidence' of marijuana use and citing Jensen v. Lick, 589 F.Supp. 35, 38 (D.N.D. 1984)) (noting that the Center for Disease Control in Atlanta has determined EMIT tests to be 97 to 99 percent accurate); Harmon v. Auger, 768 F.2d 270, 276 (8th Cir. 1985) (finding that the EMIT is 95 percent accurate); Lovvorn v. City of Chattanooga, 647 F.Supp. 875, 877 (E.D.Tenn. 1986) (same); and Peranzo v. Coughlin, 608 F.Supp. 1504, 1513 (S.D.N.Y. 1985) (noting that the EMIT test used in Vermont's inmate drug-testing program has a 97 to 100 percent reliability rate). But see Bourgeois v. Murphy, 119 Idaho 611, 809 P.2d 472 (1991) (holding that an EMIT urine test for marijuana only had 95% accuracy and that when the results are used for penitentiary disciplinary action, a confirming test was required).
Moreover, Armstrong's own expert witness, Dr. Howard, stated that while he believed gas chromatography to be more reliable, he had no doubt that the EMIT test was conducted in a proper and efficient manner, although he would have preferred a confirming test. And the Maskers' expert, Grimsbo, maintained that both tests were reliable and commonly accepted in both medical and forensic communities around the world. Peck also testified that the EMIT test was reliable.
Armstrong does not question whether the EMIT test was accurate enough to produce a result acceptable for medical treatment. Instead, she emphasizes that it is inaccurate in comparison to tests approved by the state toxicologist. Armstrong also points out that the Maskers never proved that the EMIT test was intended to show an `alcohol concentration.' Br. of Appellant at 37. In addition, she cites to an error rate for the EMIT test of 5 to 35 percent. And she reminds us that even after converting the serum/plasma figure into a whole blood figure, Howard could not calculate the exact blood alcohol concentration at the time of the accident because Beaulieu's injuries may have affected absorption and metabolism.
In spite of these problems, Maskers' expert testified that the EMIT test is generally reliable to show a patient's blood alcohol level. Armstrong's expert conceded that the EMIT test is approved for legal blood alcohol testing in the State of Oregon. He also agreed that the EMIT test result can be converted to whole blood value and he calculated the conversion to show a blood alcohol concentration of .144 at the time of the accident. Finally, the gas chromatography test performed after the autopsy showed a blood alcohol level of .12. Armstrong has not shown that the possible errors in the EMIT and gas chromatography test results were so serious that the tests were not helpful to the jury in deciding whether Beaulieu was `under the influence.' The trial court did not err in admitting the test results.
V. Comment On the Legal Level of Intoxication
Armstrong argues that the Maskers should not have been allowed to comment on the .08 legal level of intoxication in Washington and its relationship to Beaulieu's condition. She asserts that the .08 alcohol concentration level applies only to per se violations under RCW 46.61.502(1)(a).
Maskers' counsel referred to the .08 level several times. In cross-examining Officer Harada, counsel asked what the legal limit for intoxication was. Harada replied that it was .08. Counsel also questioned Harada about the physical signs of intoxication associated with different blood alcohol levels. And when he questioned Grimsbo, he asked `Now, by defining .08 as legally drunk for driving purposes, there is a body of work that suggests that motor skills are decreasing, judgment is decreasing at that level; is that correct?' RP at 423. Grimsbo said there was. He then questioned Grimsbo about various levels of intoxication and how they manifest for different people. Finally, in closing argument, counsel said, `[S]omebody at .08 is gonna have more judgment, more control than a person at .237. So the lower it is, I think the more relevant it is to this particular issue, in fairness.' RP at 621.
But Armstrong's own counsel also referred to the .08 standard. For example, he questioned Howard about the difference between the converted serum/plasma test results and the legal standard (.08), which Howard said was .064. Finally, when discussing the jury instructions, Armstrong's counsel asked the judge whether he would be able to explain to the jury the significance of the .08 standard in light of the EMIT and post-mortem tests. The following exchange occurred between counsel and the court: Mr. Sellers: It's me that made the .08 standard an issue in this case, and the only reason I'm talking about it is, is because it was made an issue, and I think I'm entitled to argue to the jury —
The Court: Yeah. You can argue to the jury, there's no question about that, and I think that's covered that it's not a legal draw by the instruction I proposed.
RP at 553.
Even if the court did err for denying Armstrong's motion to exclude reference to the .08 standard, the error was harmless. Counsel for both sides elicited testimony from Howard, Grimsbo, and others about the physical effects of different levels of intoxication in general. In her motion in limine, this is exactly the type of testimony that Armstrong's counsel argued that the Maskers could elicit. Thus, the jury had ample evidence aside from the .08 standard to measure Beaulieu's intoxication. It was one of many blood alcohol concentration levels that experts and witnesses discussed.
VI. The Standard in RCW 5.40.060
Armstrong argues that because there is no `standard' for RCW 46.61.502(1)(b), the reference to the `standard' for `under the influence' in RCW 5.40.060 necessarily refers to the standard articulated in RCW 46.61.502(1)(a). Thus, she argues the trial court erred in admitting the EMIT blood test.
But Armstrong waived the issue by consenting to instructions 11 and 14. Instruction 11 states:
A person is under the influence of alcohol if, as a result of using alcohol, the person's ability to act as a reasonably careful person under the same [or] similar circumstances is lessen[ed] in any appreciable degree.
In this context, the word `appreciable' means capable of being perceived or noticed.
CP at 631.
Instruction 14 states:
To establish the defense that the person killed was under the influence, the defendant has the burden of proving each of the following propositions:
First, that the person killed was under the influence of alcohol at the time of the occurrence causing the death; Second, that this condition was a proximate cause of the death; and Third, that the person killed was more than fifty percent at fault. If you find from your consideration of all the evidence that each of these propositions has been proved, then this defense has been established.
CP at 616.
Neither instruction mentions the .08 standard. Instead, instruction 11 allowed the jury to find that Beaulieu was under the influence of alcohol if he was impaired to an appreciable degree; instruction 14 then told the jury how to work through proximate cause and percentage of fault if it found Beaulieu sufficiently impaired.
Jury instructions not objected to become the law of the case. State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998) (citing State v. Hames, 74 Wn.2d 721, 725, 446 P.2d 344 (1968)); State v. Leohner, 69 Wn.2d 131, 134, 417 P.2d 368 (1966). Because Armstrong did not object to these instructions, they became the law of the case and allowed the jury to find a non per se violation of RCW 46.61.502(1)(b).
VII. Contamination and Unknowns
Armstrong argues that the Maskers failed to show that blood samples were clean and not skewed by Beaulieu's internal injuries; therefore the trial court should have excluded the test results under ER 702 and ER 703. We disagree. Peck and other witnesses described the procedures of Legacy and OHSU to prevent contamination. Further, the test for admissibility under ER 702 and ER 703 is not whether the data is perfect but, rather, whether the data will be helpful to the jury. There was significant testimony critiquing the testing procedures and explaining the possibility of contamination and the possible effect of trauma to the liver and other organs on absorption and metabolism of alcohol. There was also substantial testimony about the effects of alcohol on individuals and how levels of blood alcohol, tolerance to alcohol, and body size correspond to manifestation of drunkenness. The lower court reasonably entrusted the jury with allocating the appropriate weight to the tests in light of all of the facts in evidence. Thus, the trial court did not abuse its discretion in finding an adequate foundation for admitting the tests.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and BRIDGEWATER, J., Concur.