State Of Washington v. Samuel Raymundo ( 2015 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON^ m^
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STATE OF WASHINGTON, 2a»
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No. 71135-1-1 3»r~
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Respondent, —
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DIVISION ONE CO :c<:
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UNPUBLISHED OPINION
SAMUEL RAYMUNDO,
Appellant. FILED: April 20, 2015
SPEARMAN, C.J. —As Tukwila police approached the scene of a fatal one-car
accident, the driver, Samuel Raymundo, walked away in the opposite direction. Police
eventually found Raymundo, transported him to a hospital, and made a warrantless blood
draw to preserve evidence of his blood alcohol level. He appeals his convictions for
vehicular homicide and felony hit and run, arguing that the court should have suppressed
the blood test results, the State did not lay a proper foundation to admit the results, and
there was insufficient evidence to support a conviction for hit and run. We affirm.
FACTS
Based on evidence indicating that Raymundo caused the death of his passenger
by driving while under the influence of alcohol, the State charged him with vehicular
homicide, felony hit and run, reckless driving, and driving while license suspended. Prior
to trial, Raymundo pled guilty to driving while license suspended. He also moved to
suppress the blood alcohol evidence, arguing that the State was required to obtain a
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warrant before drawing his blood. The trial court disagreed, ruling that exigent
circumstances justified the warrantless blood draw. The court made the following oral and
written findings of fact.
At approximately 12:30 a.m. on March 2, 2012, Raymundo was driving on East
Marginal Way in Tukwila when his car left the road. The ensuing crash killed his cousin
and sole passenger, Jaime Hernandez.
Police arrived on the scene at 12:43 a.m. As they approached, Officer Sanjay
Prasad of the Tukwila Police Department saw two men standing near the accident scene.
One of the men, later identified as Raymundo, walked away down an embankment.
Officer Prasad asked the other man, Douglas Lower, what he saw. After discovering that
a person was trapped under the vehicle, Prasad requested the fire department and
medical aid to respond. Shortly thereafter, the fire department and additional police,
including a K-9 unit, arrived on the scene.
At 12:52 a.m., a police dog found Raymundo and bit him on the leg. At 12:59 a.m.,
witness Lower positively identified Raymundo as the person who left the scene of the
accident.
At 1:05 a.m., fire department personnel confirmed that Jaime Hernandez was
deceased. Raymundo was then transported to Highline Hospital for treatment of his bite
wounds. Officer Prasad continued to manage the scene, taking photographs, taping off
the area, dealing with traffic and briefing other officers, until 1:34 a.m. He then returned to
his station to pick up DUI paperwork and blood draw equipment.
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At 1:54 a.m., Officer Prasad arrived at the hospital where medical staff were
treating Raymundo. Officer Prasad immediately read Raymundo his implied consent,
special evidence, and Miranda1warnings.
At 1:58 a.m., approximately one hour after police apprehended and identified
Raymundo, hospital staff drew his blood. Test results showed that Raymundo's blood
alcohol level was 0.13, well above the legal limit of 0.08.
Officer Prasad admitted during pretrial testimony that he had never written a
search warrant and knew little about the procedures for doing so. Officer Donald Dart, a
Tukwila Police Department traffic investigator who arrived on the accident scene around
1:30 a.m., did not consider getting a search warrant and had never sought one for blood
alcohol evidence in this type of case.
In denying Raymundo's motion to suppress, the trial court emphasized the
exigency created by Raymundo's medical treatment:
Officer Prasad's not a medical professional. When he says he can't
intervene and stop treatment, I think that makes an abundance of sense.
That's just common sense. A police officer cannot dictate what medical
treatment is taking place.
So Officer Prasad, again, is faced with the situation where Mr.
Raymundo is being treated. He doesn't know if the blood may potentially
be compromised or the blood draw somehow may be invalidated. And
because Mr. Raymundo is actively being treated and seen at the hospital,
that also creates an exigent circumstance. Verbatim Report of Proceedings
(VRP) (09/30/13) at 112-13.
The court subsequently entered the following conclusion of law:
Miranda v. Arizona. 384 U.S. 436, 86 S.Ct. 1602, 16 LEd.2d 694 (1966).
No. 71135-1-1/4
Based on the gravity of the case, the fact that the defendant caused
delay by leaving the scene, had to be transported to the hospital for
treatment and the dissipation of alcohol in the blood by the time
delay between the accident and the blood draw, exigent
circumstances existed.
CP at 54.
At trial, the witnesses testified consistent with their pretrial testimony. In addition,
Officer James Sturgill testified that he tracked Raymundo with a police dog for eight or
nine minutes. The track led away from the scene and then back toward it, ending about
200 feet from the accident scene. There were "lights and sirens going" during the track.
VRP (10/14/13) at 101.
Officer Prasad testified that he spoke with Raymundo at the hospital. Raymundo
said he had four or five beers prior to the accident. Raymundo also said "he got scared
and that's why he ran from the police." VRP (10/07/13) at 85. Officer Prasad identified
photographs he took of a case of beer and opened beer cans around Raymundo's
vehicle. He also testified that the blood draw kit he took to the hospital included vials
containing a powder.
Asa Louis, a toxicologist with the Washington State Patrol toxicology lab, testified
that he tested the vials containing Raymundo's blood. The vials were "gray top" tubes.
VRP (10/07/13) at 50. Louis said such tubes contain two chemicals - an enzyme inhibitor
or poison known as sodium fluoride, and an anticoagulant known as potassium oxalate.
As part of their quality control, manufacturers of the vials "insure that the two chemicals
meet [Food and Drug Administration] requirement[s]." VRP (10/07/13) at 51-52. The vials
are labelled with information regarding the additives they contain. Louis testified that his
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lab relies on the labelling and that the vials in this case had labels listing the correct
additives. He further testified that if the anticoagulant is not in the vials, the blood will clot.
The fact that the blood samples in this case did not clot showed that the vials contained
anticoagulant.
Louis conceded on cross-examination that he did not attempt to locate certificates
of compliance for the vials in this case. He also testified, however, that as far as he knew,
he had not received any faulty vials in the approximately 10,000 blood analyses he had
performed.
Raymundo testified that, after handing his phone to Lower, he left the accident
scene to get help for his cousin. He did not remember telling Officer Prasad that he left
the accident scene to avoid police.
A jury found Raymundo guilty as charged. He appeals his convictions for vehicular
homicide and felony hit and run.
DECISION
Warrantless Blood Draw
Raymundo first contends the trial court erred in denying his motion to suppress his
blood test results. We review the trial court's findings of fact for substantial evidence and
its conclusions of law de novo. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266(2009). We defer to the trial court on issues of conflicting testimony, witness credibility,
and the persuasiveness of the evidence. State v. Thomas. 150 Wn.2d 821, 874-75, 83
P.3d 970, abrogated in parton othergrounds, Crawford v. Washington, 541 U.S. 36, 124
No. 71135-1-1/6
S.Ct. 1354, 158 L.Ed.2d 177 (2004). We conclude the court did not err in denying the
motion to suppress.
Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Constitution of the State of Washington prohibit warrantless searches or seizures
unless one of the exceptions to the warrant requirement applies. Garvin, 166 Wn.2d at
249. "[T]he taking of blood samples constitutes a 'search and seizure' within the meaning
of U.S. Const, amend. 4 and Const, art. 1, § 7." State v. Judge, 100 Wn.2d 706, 711, 675
P.2d 219 (1984): State v. Curran, 116Wn.2d 174, 184, 804 P.2d 558 (1991)
(nonconsensual blood test for suspected commission of vehicular homicide is a search),
overruled on other grounds bv State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997).
The State bears the burden of demonstrating that a warrantless search or seizure falls
within an exception to the warrant requirement. State v. Hendrickson, 129 Wn.2d 61, 71,
917 P.2d 563 (1996).
One recognized exception allows a warrantless search and seizure if exigent
circumstances exist. State v. Terrovona, 105 Wn.2d 632, 644, 716 P.2d 295 (1986);
Missouri v. McNeely, _ U.S. _, 133 S.Ct. 1552, 1558-59, 185 L.Ed.2d 696 (2013). "The
rationale behind the exigent circumstances exception 'is to permit a warrantless search
where the circumstances are such that obtaining a warrant is not practical because the
delay inherent in securing a warrant would compromise officer safety, facilitate escape or
permit the destruction ofevidence.'" State v. Smith, 165Wn.2d 511, 517, 199 P.3d 386(2009) (quoting State v. Audlev, 77 Wn. App. 897, 907, 894 P.2d 1359 (1995)). A court
must evaluate the totality of the circumstances in determining whether exigent
No. 71135-1-1/7
circumstances exist. McNeelv, 133 S.Ct. at 1556; Smith, 165 Wn.2d at 518. Relevant
circumstances include "the natural and inexorable dissipation of blood alcohol" levels
over time, the gravity of the offense, and the relative availability of telephonic warrants.
State v. Komoto, 40 Wn. App. 200, 211-14, 697 P.2d 1025 (1985). The natural
dissipation of blood alcohol does not constitute a per se exigency, but rather is one factor
in assessing the reasonableness of a warrantless blood draw. McNeelv, 133 S.Ct. at
1561-63.
The totality of the circumstances in this case justified a warrantless blood draw. It
is undisputed that the blood alcohol evidence began dissipating after Raymundo's
accident.2 It is also undisputed that the police were investigating a serious offense -
vehicular homicide. We held in Komoto that "circumstances are more clearly exigent
where the offense is a 'serious crime'" such as "negligent homicide." Komoto, 40 Wn.
App. at 212. We concluded that the combination of dissipating blood alcohol evidence
and a serious offense justified a warrantless entry of the suspect's home in order to take
a blood sample. Komoto, 40 Wn. App. at 213. We emphasized that "the need for the
immediate taking of a blood sample under the circumstances . . . was a sufficient
exigency to justify proceeding without a warrant, or without attempting to obtain a
telephonically authorized warrant." Komoto, 40 Wn. App. at 214. While Komoto involved
2As Chief Justice Roberts noted in his concurring opinion in McNeelv, "[a]lcohol dissipates from
the bloodstream at a rate of 0.01 percent to 0.025 percent per hour." (Citation omitted) 133 S.Ct. at 1571.
Eight of ninejustices in McNeelv also recognized that "a significant delay in testing will negatively affectthe
probative value of [blood test] results." 133 S.Ct. at 1561 (Roberts, C.J., concurring in part and stating that
"[w]hen experts have worked backwards to identify a defendant's BAC at the time he was driving, defense
attorneys have objected to that evidence, courts have at times rejected it, and juries may be suspicious of
it." (Citations omitted)). 133 S.Ct. at 1571, n.1.
No. 71135-1-1/8
the additional concern that the defendant might consume additional intoxicants in his
home and render any blood tests inaccurate, the present case involved additional factors
as well.
Raymundo's flight from the scene delayed his apprehension and identification by
approximately 15 minutes and necessitated his transport to a hospital, causing additional
delay and a need for treatment. The treatment included the administration of intravenous
fluids and medication. As the court noted in its oral ruling,3 Officer Prasad was "faced with
the situation where Mr. Raymundo is being treated. He doesn't know if the blood may
potentially be compromised or the blood draw somehow may be invalidated." VRP
(09/30/13) at 113.
Considering the totality of the circumstances, the trial court did not err in
concluding that exigent circumstances justified the warrantless blood draw.4
Foundation for Blood Test Results
Raymundo contends the trial court abused its discretion in admitting the blood test
results without a proper foundation. Specifically, he contends there was insufficient
evidence that the blood vials contained an enzyme poison that is required by law and is a
prerequisite to admissibility. Again, we disagree.
3The trial court expressly incorporated its oral findings and conclusions into its written findings and
conclusions.
4We note that the evidence concerning the Tukwila officers' lack of experience with warrant
procedures is concerning, particularly in light of the McNeelv court's clear admonition that police use
telephonic or other warrant procedures whenever this can be done in a timely manner. See McNeelv, 133
S.Ct. at 1568-69.
No. 71135-1-1/9
Blood-alcohol test results are admissible only if the blood sample was preserved
with both an anticoagulant and an enzyme poison "sufficient in amount to prevent clotting
and stabilize the alcohol concentration." WAC 448-14-020(3)(b); State v. Wilbur-Bobb,
134 Wn. App. 627, 630, 141 P.3d 665 (2006). The State must present prima facie evidence
of compliance with this regulation. State v. Brown, 145 Wn. App. 62, 70, 184 P.3d 1284(2008). In determining whether a prima facie case has been made, the trial court must
assume the truth of the State's evidence and draw all reasonable inferences in the
State's favor. RCW 46.61.506(4)(b); Brown, 145 Wn. App. at 71. We review a trial court's
ruling on the admissibility of blood test evidence for an abuse of discretion. Brown, 145
Wn. App at 69. A court abuses its discretion if it admits blood test evidence absent prima
facie evidence of compliance with the regulation.
In Brown, 145Wn. App at 71, the court concluded the following showing established
a prima facie case:
The toxicologist testified that vials used for the collection of samples
for a blood alcohol test are provided by the manufacturer with
powdery chemicals, which he identified as potassium oxalate and
sodium fluoride. He also stated that he read the labels on the vials
that contained Mr. Brown's blood, which indicated that the vials
contained sodium fluoride and potassium oxalate. The toxicologist
also testified if those chemicals were not present, the blood would be
clotted and no alcohol would be detected in the samples. The
toxicologist observed in this case that the blood in the samples was
not clotted and alcohol was detected in the samples.
In Wilbur-Bobb, 134 Wn. App. at 630-32, we held a prima facie case regarding the enzyme
poison was established by a toxicologist's testimony that sodium fluoride is an enzyme
poison, and evidence that labels on the vials showed they contained sodium fluoride. And
No. 71135-1-1/10
in State v. Barefield, 47 Wn. App. 444, 458, 735 P.2d 1339 (1987), a toxicologist's
testimony that the manufacturer always put anticoagulants in the vials and that the blood
sample was unadulterated when he ran the tests was prima facie evidence of compliance
with the anticoagulant requirement.
Here, the toxicologist testified that the vials used to test Raymundo's blood were
"gray top tubes," and that the gray top signifies the presence of the anticoagulant and
enzyme poison required by the applicable regulation. VRP (10/8/13) at 50 He further
testified that the manufacturer of the vials must adhere to FDA requirements, including
the requirement that they ensure the presence of an anticoagulant and enzyme poison,
that the manufacturers do this as part of their quality control, and that his lab relies on the
manufacturer's certificates of compliance with FDA rules. The vials analyzed in this case
bore labels from the manufacturer identifying the chemicals inside them. The toxicologist
also testified that the presence of the anticoagulant was demonstrated by the fact that the
remaining blood in the vials had still not clotted.
Drawing all reasonable inferences from the evidence in the State's favor, we
conclude the trial court did not abuse its discretion in finding a sufficient foundation to
admit the blood test results.
Hit and Run
Last, Raymundo contends his hit and run conviction is not supported by sufficient
evidence. Evidence is sufficient to support a finding of guilt if, after viewing the evidence
in the light most favorable to the State, a rational trier offact could find the essential
elements of the crime beyond a reasonable doubt. State v. Rose, 175 Wn.2d 10, 14, 282
10
No. 71135-1-1/11
P.3d 1087 (2012). A challenge to the sufficiency of the evidence admits the truth of the
State's evidence and any reasonable inferences drawn from it. State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992).
To convict Raymundo of felony hit and run under the instructions in this case, the
State had to prove that he failed to satisfy any of the following statutory duties:
(a) Immediately stop the vehicle at the scene of the accident or
as close thereto as possible;
(b) Immediately return to and remain at the scene of the
accident until all duties are fulfilled;
(c) Give his name, address, insurance company, insurance
policy number and vehicle license number, and exhibit his driver's
license, to any person struck or injured or the driver or any occupant
of, or any person attending, any vehicle collided with; or if none of the
persons specified are in condition to receive the information and
no police officer is present, immediately report the accident to the
nearest office of the police, give his name, address, insurance
company, insurance policy number, and vehicle license number, and
exhibit his driver's license, after fulfilling all other obligations insofar as
possible on his part to be performed;
(d) Render to any person injured in the accident reasonable
assistance, including the carrying or making of arrangements for the
carrying of such person to a physician or hospital for medical treatment
if it is apparent that such treatment is necessary or such carrying is
requested by the injured person or on his behalf [.]5
Douglas Lower testified that he heard the crash and went immediately to the
accident scene. Raymundo walked from the car to Lower, handed him a phone, and
asked him to give their location to the 911 operator he had called. Lower heard a police
car to the north. Raymundo then walked away to the south. Officer Prasad similarly
testified that Raymundo walked away as he approached the scene. Raymundo told
CP at 97-98 (emphasis added).
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No. 71135-1-1/12
Prasad he walked away to avoid the police. Viewed in a light most favorable to the State,
this evidence supported inferences that Raymundo left the scene before a police officer
was present and without fulfilling his duties under section (c) of the instruction.6
Affirmed.
W^fr";VSJ
WE CONCUR:
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6We reject Raymundo's suggestion that he might have satisfied his duties under section (c) ofthe
instruction by giving the required information to the 911 operator. In addition to there being no evidence
that Raymundo gave any such information to the operator, nothing in the instruction indicates that a 911
operator is a proper recipient ofsuch information. Nor does Raymundo cite any authority supporting that
proposition. Moreover, the State correctly points out that a person must "exhibit his driver's license" to a
proper recipient. Raymundo does not explain how this can be accomplished over the phone.
12