IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80364-6-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
REBECCA JOHNSON,
Appellant.
SMITH, J. — Rebecca Johnson appeals her conviction for driving under the
influence (DUI). Following a reported domestic disturbance, Snohomish County
Sheriff’s Deputy Jonathan Krajcar found Johnson in a running vehicle on one
side of the property where the incident was reported to have occurred. After
Deputy Krajcar smelled alcohol and Johnson told him that she had had a drink
that day, Johnson volunteered to perform field sobriety tests (FSTs). At trial,
Deputy Krajcar testified to Johnson’s results, asserting that, during the FSTs,
Johnson showed many signs of intoxication. He also testified that FSTs are
“scientifically validated to be able to detect impairment” and that, based on his
observations and experience, Johnson had driven while impaired.
On appeal, Johnson contends that Deputy Krajcar’s testimony constitutes
an improper opinion on guilt, properly reserved for the jury. Because Deputy
Krajcar opined to the scientific validity of the FSTs, we conclude that this
testimony was inadmissible and improper. However, his testimony that Johnson
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80364-6-I/2
was impaired was based on his observations and therefore was not improper.
Moreover, the evidence presented at trial was so overwhelming that the jury
would have found Johnson guilty without the testimony regarding the scientific
validity of the FSTs. Therefore, we affirm.
FACTS
On April 1, 2017, Snohomish County dispatch received a call regarding a
verbal domestic dispute at a farm. At around 1:45 p.m., Deputy Krajcar
responded to the call and found Johnson alone in the driver’s seat of a vehicle
parked “in the back of the property.” The vehicle was running, and Deputy
Krajcar later testified that it did not appear that the vehicle had been parked for
very long. When Deputy Krajcar asked Johnson what she was doing, she told
him that she had driven the car from the front of the property to the rear of the
property.
Deputy Krajcar later testified that, while speaking with Johnson, he “could
smell the odor of intoxicants or alcohol coming from her,” that “[h]er eyes were
bloodshot and watery,” and that “her speech was slurred.” Deputy Krajcar also
testified that Johnson told him that she had one shot of vodka at 8:30 a.m. For
these reasons, Deputy Krajcar asked Johnson if she would be willing to perform
standardized FSTs. Johnson consented.
At trial, Deputy Krajcar demonstrated the FSTs with the prosecutor. He
testified that, during the first FST, the horizontal gaze nystagmus (HGN) test, he
observed six out of six clues for impairment. The next FST was “the one leg
stand.” Deputy Krajcar testified that Johnson also showed signs of impairment in
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this FST, including raising her arms, swaying, and putting her foot down twice.
During the walk and turn FST, Deputy Krajcar observed four out of eight clues of
impairment, including stepping off of the line and taking one step too many.
Based on the results of the FSTs, his observations, and his experience as
a Drug Recognition Expert (DRE), Deputy Krajcar arrested Johnson for a DUI.
Johnson later took a breath test, which resulted in a .05 blood alcohol
concentration (BAC) level, below the statutory limit of .08 BAC.1
Before trial, the State moved to admit Deputy Krajcar’s opinion testimony
that Johnson was impaired. The State asserted that it would “avoid using the
language that tracks to the jury instructions as that would invade the province of
the jury.” Johnson asserted in response, “[W]ith this objection, I think we have
effectively been reserving it depending on how the testimony comes out.” The
court noted that Johnson could object during the course of trial if Deputy Krajcar
used impermissible language. The court also granted Johnson’s motion to
exclude reference to the reporting party’s statement to Deputy Krajcar.
At trial, Deputy Krajcar testified that FSTs are “scientifically validated to be
able to detect impairment.” Johnson objected to this testimony, which the trial
court overruled. Deputy Krajcar testified that he had administered FSTs
“hundreds” of times. He opined that Johnson “was driving the vehicle and was
impaired.” In another instance, he testified that Johnson “had consumed
alcohol,” had driven, and “was impaired.” He testified that his opinion was
“[b]ased upon [his] observations of [Johnson], her slurred speech, bloodshot,
1 The BAC results were not admitted at trial.
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watery eyes, lethargic behavior as well as her performance on the standardized
[FSTs].” He reiterated later at trial, “Based upon everything that I saw, smelled,
heard, I believe she was impaired.”
The jury convicted Johnson.
Johnson appealed to the Snohomish County Superior Court. The superior
court concluded that the State produced proof sufficient to satisfy Johnson’s
conviction. It also held Deputy Krajcar’s testimony was not an improper opinion
on Johnson’s guilt. Johnson sought discretionary review in this court, which we
granted.
ANALYSIS
Preservation of Issue for Appeal
As an initial matter, the State claims that Johnson failed to preserve her
challenge to Deputy Krajcar’s testimony that she was impaired. While we agree,
we exercise our discretion to review the unpreserved error.
“The appellate court may refuse to review any claim of error which was not
raised in the trial court.” RAP 2.5(a). “Under ER 103(a)(1), when an error is
raised based on admitting evidence, the adverse party must make ‘a timely
objection or motion to strike . . . [and] stat[e] the specific ground of objection, if
the specific ground was not apparent from the context.’” City of Seattle v.
Levesque, 12 Wn. App. 2d 687, 695, 460 P.3d 205 (alterations in original),
review denied, 195 Wn.2d 1031 (2020).
When the State asked Deputy Krajcar if he had formed an opinion
regarding whether Johnson had been driving a vehicle that day, Johnson
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objected to the question based on its foundation. The trial court overruled her
objection. After, the State and Deputy Krajcar had the following exchange:
Q: What was your opinion?
A: That she was driving the vehicle and was impaired.
Q: Okay. Could you summarize for the jury what led you to
believe the defendant was driving a vehicle that day?
....
A: Based upon my conversation with the original reporting
party, Ms. Johnson's statements to me that she had been driving,
and the - -
Johnson objected again. When the court asked what testimony she wanted
struck from the record, she responded, “The response that his belief . . . was
based on statements from the reporting party.” Johnson objected based on the
trial court’s ruling to exclude the reporting party’s statements. Thus, Johnson did
not properly object to Deputy Krajcar’s opinion that she was driving and impaired.
However, we may review an unpreserved error on appeal. See RAP 2.5(a).
Accordingly, we exercise our discretion and review the merits of Johnson’s
assertion.
Admissibility of Deputy Krajcar’s Testimony
Johnson asserts that the trial court erred in admitting (1) Deputy Krajcar’s
testimony regarding the scientific validity of the FSTs and (2) his opinion
testimony that she was driving and impaired. While we agree that the testimony
regarding the scientific validity of the FSTs was improper, Deputy Krajcar was
allowed to opine, based on his observations, that Johnson was impaired.
We review the admission of opinion testimony for abuse of discretion.
State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). And opinion
testimony must be deemed admissible by the trial court before it is offered. State
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v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008). To determine
whether such testimony constitutes “impermissible opinion testimony, the court
will consider the circumstances of the case, including the following factors:
‘(1) the type of witness involved, (2) the specific nature of the testimony, (3) the
nature of the charges, (4) the type of defense, and (5) the other evidence before
the trier of fact.’” Montgomery, 163 Wn.2d at 591 (internal quotation marks
omitted) (quoting Demery, 144 Wn.2d at 759).
However, Washington courts have “held that there are some areas that
are clearly inappropriate for opinion testimony in criminal trials,” including
“expressions of personal belief, as to the guilt of the defendant.” Montgomery,
163 Wn.2d at 591. “Impermissible opinion testimony regarding the defendant’s
guilt may be reversible error.” State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d
213 (2014). But “[t]estimony in the form of an opinion or inferences otherwise
admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.” ER 704.
Two cases guide our analysis. First, in City of Seattle v. Heatley, Officer
Patricia Manning observed Robert Heatley speeding and straddling the center
lane with his vehicle. 70 Wn. App. 573, 575, 854 P.2d 658 (1993). When Officer
Manning pulled Heatley over, she believed Heatley was intoxicated and called
the Driving While Impaired (DWI) unit. Heatley, 70 Wn. App at 575-76. DWI unit
Officer Mark Evenson had Heatley perform a series of FSTs: reciting the
complete alphabet, counting backward from 59, balancing, and walking a straight
line. Heatley, 70 Wn. App. at 576. At trial, Officer Evenson opined,
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“Based on . . . his physical appearance and my observations . . .
and based on all the tests I gave him as a whole, I determined that
Mr. Heatley was obviously intoxicated and affected by the alcoholic
drink . . . . [And] he could not drive a motor vehicle in a safe
manner.”
Heatley, 70 Wn. App. at 576. Heatley was convicted. Heatley, 70 Wn. App. at
577. On appeal, we held that Officer Evenson’s testimony, which was based on
his experience and observations, was admissible lay opinion testimony. Heatley,
70 Wn. App. at 579-80.
Second, in Quaale, State Patrol Trooper Chris Stone pulled over Ryan
Quaale. 182 Wn.2d at 194. Trooper Stone performed an HGN test on Quaale
and observed that Quaale’s eyes bounced and had difficulty tracking stimulus.
Quaale, 182 Wn.2d at 194. The State charged Quaale with a DUI, and at trial,
Trooper Stone, testifying as an expert witness, opined, “There was no doubt
[Quaale] was impaired.” Quaale, 182 Wn.2d at 195. Our Supreme Court held
that Trooper Stone’s testimony was inadmissible because he completed only 1 of
the 12 DRE steps, the HGN test, and because he cast his opinion in “an aura of
scientific certainty.” Quaale, 182 Wn.2d at 198-99. Specifically, the court
observed that Trooper Stone’s testimony was cast in absolute terms and gave
the appearance that the HGN test produces scientifically certain results. Quaale,
182 Wn.2d at 198-99. The court also concluded that the testimony that Quaale
was “impaired” necessarily and improperly indicated a specific level of
intoxication, which the HGN test alone could not reveal. Quaale, 182 Wn.2d at
198-99.
Here, the State charged Johnson with a DUI. Deputy Krajcar testified
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based on his experience as an officer, including his training as a DRE and his
training under the National Highway Traffic Safety Administration’s Advanced
Roadside Impaired Driving Enforcement. Deputy Krajcar opined that, based on
his observations and experience, Johnson was impaired by alcohol. He also
testified that Johnson told him that she had drunk alcohol that morning and had
driven the vehicle. Deputy Krajcar’s testimony was the only evidence presented
at trial. And Johnson presented no defense.
Like in Heatley, Deputy Krajcar’s could opine as to Johnson’s intoxication.
See also Montgomery, 163 Wn.2d at 591 (“A lay person’s observation of
intoxication is an example of a permissible lay opinion.”). Unlike in Quaale,
Deputy Krajcar did not base his opinion on a single FST but conducted three
FSTs, and he did not base his testimony on the scientific validity of the FSTs.
Indeed, Deputy Krajcar testified multiple times that his opinion was based on his
personal observations, including what he saw and smelled. Thus, his testimony
that, based on his observations, “[Johnson] was impaired” was not improper.
However, like the trooper’s testimony in Quaale, Deputy Krajcar’s
testimony that the FSTs are “scientifically validated to be able to detect
impairment” was improper because it presented an aura of scientific reliability
regarding the FSTs. Deputy Krajcar also testified that “[t]here’s [sic] been many
scientific studies validating” FSTs’ ability to determine how alcohol might affect a
person’s performance. Deputy Krajcar highlighted, three times, the scientific
validity of the FSTs. Because of the persuasive nature of officer testimony and
because a defendant has the constitutional right for a jury to decide the ultimate
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issue of guilt, we conclude that the testimony regarding the scientific validity of
the FSTs was improper.
Harmless Error
Johnson asserts that Deputy Krajcar’s improper opinion violated her
“constitutional right to have a fact critical to her guilt determined by the jury” and
constitutes reversible error. Because Deputy Krajcar’s testified to what he
observed and because Johnson herself had admitted to drinking and driving, we
disagree.
Deputy Krajcar’s improper testimony regarding the scientific validity of the
FSTs invaded the province of the jury in determining guilt and violated Johnson’s
constitutional right to a fair trial. Thus, “we apply the constitutional harmless error
standard.” State v. Hudson, 150 Wn. App. 646, 656, 208 P.3d 1236 (2009). In a
constitutional harmless error analysis, we presume prejudice. Hudson, 150 Wn.
App. at 656. And a “[c]onstitutional error is harmless only if the State establishes
beyond a reasonable doubt that any reasonable jury would have reached the
same result absent the error.” Quaale, 182 Wn.2d at 202. “This test is met if the
untainted evidence presented at trial is so overwhelming that it leads necessarily
to a finding of guilt.” Hudson, 150 Wn. App. at 656.
“An officer’s live testimony offered during trial . . . may often ‘carr[y] an
aura of special reliability and trustworthiness’” and is “especially likely” to
influence a jury. Demery, 144 Wn.2d at 762-63 (some alterations in original)
(internal quotation marks omitted) (quoting United States v. Espinosa, 827 F.2d
604, 613 (9th Cir. 1987)). Deputy Krajcar was the only witness at trial, and he
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testified regarding the scientific validity of the FSTs. However, he properly
testified regarding sensory observations that any lay individual would notice as
signs of impairment and would draw inferences therefrom regarding the
individual’s impairment. Specifically, “[t]he effects of alcohol ‘are commonly
known and all persons can be presumed to draw reasonable inferences
therefrom.’” Heatley, 70 Wn. App. at 580 (quoting State v. Smissaert, 41 Wn.
App. 813, 815, 706 P.2d 647 (1985)). To this end, Deputy Krajcar testified that
he smelled “the odor of intoxicants or alcohol coming from [Johnson],” that her
eyes were blood and watery, and that “her speech was slurred.”
Similarly, the testimony regarding what he witnessed during the FSTs
involved evidence that a lay witness would interpret as signs of intoxication.
Deputy Krajcar testified that during the one leg stand test, Johnson “raised her
arms . . . , she swayed, and she put her foot down twice.” He also testified that
during the walk and turn test, Johnson took one step too many, stepped off the
line on her eighth step, and missed placing her heel to her toe several times.
Furthermore, he testified that Johnson had difficulty counting to 15 and that it
took her 30 seconds, that she was overall lethargic, and that her movements
were slow. He based his conclusion “upon [his] observations of [Johnson], her
slurred speech, bloodshot, watery eyes, lethargic behavior[,] as well as her
performance on the standardized [FSTs].”
Most importantly, Deputy Krajcar testified to Johnson’s statements that
(1) she began drinking at 8:30 a.m. that day and had one shot and (2) she drove
to the back of the property. Deputy Krajcar contended that what he saw and
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No. 80364-6-I/11
smelled was not consistent with having had only one shot of vodka. Any
reasonable juror would have concluded that Johnson was guilty, despite Deputy
Krajcar’s improper opinion testimony and based only on the untainted evidence.
Therefore, we conclude that the error in his testimony was harmless.
For the foregoing reasons, we affirm.
WE CONCUR:
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