                                                                                                COURTFILED



                                                                                                          OF APPEALS
                                                                                                       DIVISION II
                                                                                            2D 14 DEC 16           H 8 35
                                                                                            S•   e..    i,.   AS      GfOP
                                                                                            BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

STATE OF WASHINGTON,                                                         No. 45446 -7 -II


                                     Respondent,


          v




 CLIFFORD LEE STONE, JR.,                                            UNPUBLISHED OPINION


                                     Appellant.


       JOHANSON, C. J. —           Clifford Lee Stone, Jr.,   appeals his jury trial conviction for felony

driving under the   influence (DUI). He argues that the trial court violated his right to refuse consent


to a warrantless blood draw under the Fourth Amendment of the United States Constitution and

article I, section 7 of the Washington State Constitution. Because Stone was not asked to give a

warrantless blood sample, we hold that the trial court did not abuse its discretion when it admitted


the challenged testimony. We affirm Stone' s conviction.

                                                      FACTS


          On June 29, 2013, Sergeant Nathan Hovinghoff stopped Stone' s vehicle for speeding.

Sergeant Hovinghoff smelled alcohol in Stone' s car, suspected that Stone was impaired, and

noticed   that Stone   exhibited   many traditional   signs of alcohol   impairment. When Stone        refused   to
No. 45446 -7 -II



perform a field sobriety test, Sergeant Hovinghoff arrested him for DUI and read him his Mirandal

rights.



          Stone   was confrontational            throughout the            night.   On the drive to the police station, Stone


told Sergeant Hovinghoff that " he' d bust through that glass [ separating the sergeant from the back

seat of the patrol car where           Stone    sat]   in three hits." 2 Report of Proceedings ( RP) at 101. Because


of Stone' s combative demeanor, Sergeant Hovinghoff requested that several jailers meet him when

he arrived at the jail and kept Stone handcuffed throughout the evening.

          At the jail, Stone          refused   to take    a   blood       alcohol content     test.    Sergeant Hovinghoff told


Stone that he "     would      apply for    a search warrant for               blood," and Stone responded that " it would


take 15    people   to   get   blood from him." 2 RP              at   75 ( emphasis     added).       After Sergeant Hovinghoff


told Stone that he could arrange for 15 people to take his blood, Stone stood up out of his chair,

glared at the Sergeant, and attempted to charge at him. It took three officers about 30 seconds to

get   Stone to    calm    down.        Because of safety concerns, Sergeant Hovinghoff did not apply for a

warrant for a blood sample, but he did get a warrant to search Stone' s car and recovered a bottle

of vodka from inside.


          The State charged Stone with felony DUI.2 Before trial, Stone moved in limine to exclude
Sergeant Hovinghoff' s testimony                 about    his "   refusal"     to   consent   to   provide a   blood   sample.   The


State argued that it offered Stone' s reaction as evidence of his aggressive demeanor and that

Stone'    s reaction was not a refusal            to   provide a warrantless           blood    sample.     Stone argued that this




 1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

2
    RCW 46. 61. 502( 1), (      6).



                                                                       2
No. 45446 -7 -II



testimony      would    invite the       jury   to infer       guilt   from his      refusal.   The trial court denied Stone' s


motion.



         Sergeant Hovinghoff testified consistent with the facts above about the night that he

arrested    Stone,     and       Stone   did   not    object    at    trial to his   testimony.    Stone testified at trial and


attempted to explain each of the symptoms of impairment that Sergeant Hovinghoff described.

The jury convicted Stone of felony DUI, and he appeals that conviction.

                                                               ANALYSIS


          Stone argues that the trial court abused its discretion when it denied his motion in limine

to   exclude   Sergeant Hovinghoff s                 testimony. Stone argues, specifically, that this testimony was

effectively an improper comment on his constitutional right to refuse to provide a blood sample

without a warrant.3 We hold that the trial court did not abuse its discretion when it denied Stone' s

motion in limine because Sergeant Hovinghoff never asked Stone to submit to a warrantless blood

draw and his reaction was, therefore, not a refusal.


                                                     A. STANDARD OF REVIEW


           We review a trial court' s decision on a motion in limine and the admissibility of evidence

for   an abuse of      discretion. State        v.    Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995).              The trial


court abuses its discretion when its decision is manifestly unreasonable or based on untenable

grounds.       State   v.   Garcia, 179 Wn.2d 828, 844, 318 P. 3d 266 ( 2014). A trial court' s decision is




3 Stone argues that Sergeant Hovinghoff' s testimony was an improper comment on his Fifth
Amendment         right     to     This argument is not well taken. There is no dispute that he
                                 remain silent.

received Miranda warnings, stated that he understood his rights; and did not remain silent when
he spontaneously told Sergeant Hovinghoff that it would take 15 people to draw blood pursuant to
 a warrant.      Further, he did           not object      on        this   ground   below.     Consequently, we address this
 argument no further.

                                                                            3
No. 45446 -7 -II



 manifestly        unreasonable" when           it is "' outside the range of acceptable choices, given the facts and


the   applicable        legal   standard. '    State      v.   Dye, 178 Wn.2d 541, 555, 309 P. 3d 1192 ( 2013) ( quoting


In re Marriage ofLittlefield, 133 Wn.2d 39, 47, 940 P. 2d 1362 ( 1997)).

          A blood draw to determine alcohol content is a search under the Fourth Amendment.

Skinner      v.   Ry.   Labor Execs. ' Ass 'n, 489 U.S. 602; 616 -17, 109 S. Ct. 1402, 103 L. Ed. 2d 639


 1989).      It is improper to use a defendant' s exercise of his Fourth Amendment right to refuse

consent      to a   warrantless search against                 him   as substantive evidence of guilt.       State v. Gauthier,


174 Wn.       App.      257, 267, 298 P. 3d 126 ( 2013); see also United States v. Prescott, 581 F. 2d 1343,


1351 -52 ( 9th Cir. 1978).            However, where a suspect does not have a constitutional right to refuse


consent to a search, it is appropriate for the State to comment on and invite the jury to infer guilt

from the refusal. State v. Mecham, 181 Wn. App. 932, 946 -47, 331 P. 3d 80, review granted, 337

P. 3d 325 ( 2014). Where the State has a warrant, a suspect has no constitutional right to refuse a


search.      Gauthier, 174 Wn.             App.     at    263 -64;   see also   Prescott, 581 F. 2d   at   1350 ( "` When a law


enforcement officer claims authority to search a home under a warrant, he announces in effect that

the   occupant      has    no right   to   resist   the   search. ' (   quoting Bumper v. North Carolina, 391 U.S. 543,

550, 88 S. Ct. 1788, 20 L. Ed. 2d 797 ( 1968))).

                                                                 B. ANALYSIS


          Based on Sergeant Hovinghoff s proposed testimony, Stone expressed an unwillingness to

consent to a blood sample when he told the sergeant it would take 15 people to get him to submit.

But Sergeant Hovinghoff never asked, demanded, or expected Stone to provide a warrantless


blood sample. He told Stone that he " would be applying for a search warrant" for Stone' s blood.

 1 RP   at   19.    Stone' s reaction, therefore, was not a refusal to provide a warrantless blood sample.


                                                                        4
No. 45446 -7 -II



Stone' s reaction to Sergeant Hovinghoff' s statement that he would apply for a warrant to take a

blood sample, therefore, did not implicate Stone' s constitutional right against warrantless searches


and any testimony about his conduct was proper.

        Accordingly, the trial court did not abuse its discretion when it denied Stone' s motion to

exclude Sergeant Hovinghoff' s testimony because Stone was not asked to give a warrantless blood

sample, Stone' s reaction was not a refusal to a warrantless search and, thus, the testimony was

properly admitted. We affirm Stone' s conviction.

        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 in accordance with RCW 2. 06.040,

it is so ordered.




 We concur:




 MAXA,




SUTTON,
