In State v. Wasuge, No. 85286-8-I (August 12, 2024)., the WA Court of Appeals (COA) held the trial court mistakenly admitted expert testimony in a DUI case that the general population metabolizes alcohol at a rate of .01 to .02 percent per hour. Also, the trial court erred when it admitted expert testimony that the American Medical Association (AMA) recommends that state legislatures lower the “per se” blood alcohol concentration (BAC) limit for driving under the influence (DUI) offenses from .08 to .05 percent. Despite the trial court’s errors, the COA nevertheless upheld Mr. Wasuge’s convictions because the errors were harmless.
FACTUAL BACKGROUND
On the morning of October 12, 2022, a 911 caller reported that a vehicle had abruptly stopped in the center of a residential road. Upon arriving at the scene at approximately 6:45 a.m., King County Sheriff’s Office Deputies saw a stationary vehicle in the southbound lane of the road with its headlights and taillights illuminated. The officers noticed the vehicle’s engine was running, the keys were in the ignition, and the transmission was in drive. The officers also observed Mr. Wasuge sitting in the reclined driver’s seat asleep with his feet resting on the floorboard.
The officers decided to “box the vehicle in” by parking their vehicles in front of and behind Wasuge’s vehicle. A deputy then knocked on the front driver’s side window and announced himself as a law enforcement officer. When Wasuge awoke, he looked at an officer and began rolling down the back driver’s side window before rolling down the front driver’s side window. A police officer immediately smelled “an odor of alcoholic beverages coming from the vehicle” and ordered Wasuge to put the gearshift in park and exit the vehicle, which he did.
When police asked Wasuge “why he was asleep in the middle of the roadway,” Wasuge said he was waiting for a friend and pointed at different houses in multiple directions. The officer suspected that Wasuge had been drinking alcohol because his breath smelled of alcohol; his speech was slurred; his eyes were bloodshot, glassy, and watery. Wasuge was also unbalanced when walking and standing; and he generally appeared “dazed and confused.” Police asked Wasuge if he had been drinking, which Wasuge denied. After Wasuge performed poorly on the field sobriety tests, he placed him under arrest for DUI. Farley then transported Wasuge to a hospital where a nurse drew his blood. Later testing of this blood determined that Wasuge’s BAC was .076 percent.
Mr. Wasuge was charged with DUI, Operating a Vehicle Without an Ignition Interlock Device, and Driving While License Revoked.
At trial, the jury convicted Wasuge of counts 2 and 3 as charged, but it did not reach a unanimous verdict on count 1. Instead, the jury convicted Wasuge of the lesser included offense of being in Actual Physical Control of a Motor Vehicle While Under the influence.
COURT’S ANALYSIS & CONCLUSIONS
Regarding the Expert Witness Testimony issue, the trial court abused its discretion in admitting the contested portions of Dougher’s testimony. Because the expert’s testimony about hypothetical per se BAC limit was not relevant to any issue in the trial, the trial court abused its discretion by admitting it.
“The State’s reliance on inadmissible testimony in this case is especially concerning, as it appears to be strategic. The State, as noted previously, did not seek to convict Wasuge under the “per se” prong of RCW 46.61.502(1)(a) or RCW 46.61.504(1)(a). Nor did it present a retrograde extrapolation, which might have been used to show that Wasuge’s BAC was .08 percent or higher while he was driving or in actual physical control of the motor vehicle.” ~WA Court of Appeals
Nevertheless, the COA found the errors harmless in light of the overwhelming evidence that Mr. Wasuge drove under the influence.
“These evidentiary errors would warrant reversal if this were a close case. But it is not. Under the nonconstitutional harmless error standard applicable to evidentiary errors, Wasuge is not entitled to a new trial unless he shows that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.” ~WA Court of Appeals
Here, police found Wasuge asleep behind the wheel of a vehicle sitting in the lane of travel with the engine idling and the gearshift in drive. Wasuge smelled of intoxicants. His speech was slurred, and his eyes were glassy, bloodshot, and watery. Wasuge performed poorly on the field sobriety tests. Lastly, Wasuge admitted to drinking multiple beers before driving the vehicle, and he had a BAC of .076 percent about two hours after he was first discovered behind the wheel of his vehicle.
“Because Wasuge has not shown that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected, he is not entitled to a new trial on this basis,” said the COA. With that, the COA upheld Mr. Wasuge’s convictions.
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