                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            April 14, 2020




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 52448-1-II

                                Respondent.

          vs.                                                PART PUBLISHED OPINION

 ARTUR VENIAMIN TYSYACHUK,

                                Appellant.



        MAXA, C.J. – Artur Tysyachuk appeals his conviction of felony driving under the

influence (DUI), first degree driving while suspended or revoked, and failure to have an ignition

interlock. The convictions arose from a traffic stop that a Washington State Patrol trooper

initiated after observing Tysyachuk making jerky movements when driving, crossing the lane

divider line to the right and causing another vehicle to change lanes, and then crossing the fog

line to his left.

        In the published portion of this opinion, we hold that (1) the trooper had a reasonable

suspicion that Tysyachuk had engaged in criminal activity or a traffic infraction that justified his

stop of Tysyachuk’s car, and (2) the trial court did not abuse its discretion in denying

Tysyachuk’s motion to bifurcate the trial into two phases: one to determine whether he

committed DUI and a second to determine whether he had the required prior DUI offenses to

elevate his offense to a felony. In the unpublished portion, we hold that the trial court did not
No. 52448-1-II


abuse its discretion in admitting the results of a blood alcohol test performed after Tysyachuk’s

arrest. Accordingly we affirm Tysyachuk’s convictions.

                                              FACTS

       At 1:40 AM on December 31, 2017, Washington State Patrol trooper Nicholas Smith was

driving northbound on Interstate 5 near the Tacoma Dome when he noticed a car driving in the

far left lane that was making some “jerking movements.” Report of Proceedings (RP) (June 4,

2018) at 34. Smith observed the right two tires of the car cross over the lane divider to the right

and saw a vehicle in the adjoining lane slow down and move away into the next lane. The car

then braked and moved back into the left lane and crossed over the solid fog line on the left that

separated the roadway from the shoulder. Smith then decided to stop the car because the driver

was not driving safely. And he believed the swerving – failure to maintain straight travel in a

lane – was consistent with possible driving under the influence.

       The driver, later identified as Tysyachuk, showed signs of intoxication so Smith asked

him to perform field sobriety tests. Tysyachuk refused. Smith placed Tysyachuk under arrest

and transported him to the hospital for a blood draw to test his blood-alcohol concentration.

Tests showed a result of 0.20 grams of ethanol per 100 milliliters, which is over twice the legal

limit. Because Tysyachuk had three or more prior DUI convictions, the State charged

Tysyachuk with felony driving under the influence, first degree driving while in revoked status,

and failure to have an ignition interlock.

Motion to Suppress

       Tysyachuk filed a motion to suppress all the evidence arising from the traffic stop and to

dismiss the charges, claiming in part that the officer lacked probable cause to stop his car. At the

hearing on this motion, Smith testified about his observations as recited above. Smith also




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No. 52448-1-II


testified about his DUI training and extensive experience as a trooper in conducting several

hundred traffic stops involving DUI investigations, about 150 of which resulted in DUI arrests.

       In addition, the court admitted video footage from Smith’s dashboard camera. The video

footage showed Tysyachuk’s car crossing the lane divider to the right, approximately a car

length in front of a vehicle in the right lane. That vehicle signaled and moved to the far right

lane as Tysyachuk moved back into his lane, braked, and then crossed the fog line to the left.

Smith then activated his lights and siren.

       The trial court denied the motion to suppress based on the lawfulness of the traffic stop.

The court entered the following findings:

       Trooper Smith was especially well trained and experienced in the detection and
       investigation of impaired driving cases.

Clerk’s Papers (CP) at 120.

       The court had an opportunity to view the footage from the dashboard mounted
       camera in Trooper Smith’s vehicle, which was admitted as an exhibit at this
       hearing. The footage appeared to be a fair and accurate depiction of the events in
       this case and strongly corroborated the testimony of Trooper Smith.

CP at 120-21.

       Trooper Smith testified he saw the defendant’s Cadillac Deville in the far left lane
       making several jerky, unsafe lane maneuvers which brought the Cadillac out of its
       lane and into the lane to the right.

CP at 123.

       The Court finds Trooper Smith’s testimony about the defendant[’s] jerky, unsafe
       lane maneuvers to be credible. The Court finds the defendant’s vehicle was
       swerving inside and outside of its lane, and when the defendant’s vehicle left its
       lane it nearly caused a collision with a vehicle traveling in the neighboring lane.
       One vehicle in the neighboring lane slowed and merged to the right to avoid the
       defendant’s unsafe driving.

CP at 123-24.




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No. 52448-1-II


       The trial court concluded that Smith’s traffic stop of Tysyachuk’s car was lawful:

       The defendant’s driving behaviors (weaving in and out of his lane, causing other
       vehicles to take evasive action to avoid him) provided a reasonable articulable
       suspicion that criminal activity and/or traffic infractions had occurred, and thus
       Trooper Smith was justified in initiating a traffic stop of the defendant’s vehicle. It
       was appropriate and reasonable for Trooper Smith to conduct a traffic detention to
       investigate why the defendant’s driving was substandard.

CP at 125.

Motion to Bifurcate

       Tysyachuk filed a motion to bifurcate his trial so that the jury would hear evidence of his

prior DUI offenses – which elevated his offense to a felony – only if it rendered a guilty verdict

on the DUI charge. He argued that the evidence of his prior offenses could cause the jury to

believe that he had a propensity to commit DUI. The trial court denied the motion, stating, “I am

not going to bifurcate the trial, but I’m more than happy to figure out some other compromise so

that you don’t have -- sort of depends on what the defense wants to do. But I don’t believe it’s

appropriate to bifurcate, given the case law.” 1 RP at 20.

       Tysyachuk then asked for an alternative: allowing Tysyachuk to stipulate to the prior

convictions but not have the stipulation read until the jury made a determination on his guilt on

the DUI. The trial court denied this request.

       Ultimately, Tysyachuk stipulated that he “had been previously convicted of three or more

prior offenses as defined by RCW 46.61.5055 . . . within ten years of his arrest.” CP at 243. The

court included the stipulation in a jury instruction that was given with the jury instructions on the

current DUI offense.

       The jury returned guilty verdicts on all charges. Tysyachuk appeals his convictions.




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No. 52448-1-II


                                                 ANALYSIS

A.     LAWFULNESS OF THE TRAFFIC STOP

       Tysyachuk argues that the trial court erred in denying his motion to suppress the evidence

arising from Smith’s traffic stop because Smith did not have a reasonable suspicion that he was

engaging in criminal conduct or committing a traffic infraction. We disagree.

       1.         Standard of Review

       In evaluating a denial of a motion to suppress evidence, we review the trial court's

findings of fact for substantial evidence and review de novo the trial court's conclusions of law

based on those findings. State v. Fuentes, 183 Wn.2d 149, 157, 352 P.3d 152 (2015). Evidence

is substantial if it is enough to persuade a fair-minded person of the truth of the stated premise.

State v. Froehlich, 197 Wn. App. 831, 837, 391 P.3d 559 (2017). Unchallenged findings are

treated as verities on appeal. State v. Betancourth, 190 Wn.2d 357, 363, 413 P.3d 566 (2018).

       In making a substantial evidence determination for a motion to suppress, we defer to the

trial court’s resolution of conflicting testimony and evaluation of the persuasiveness of the

evidence. See State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014) (general substantial

evidence rule); State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994) (motion to suppress).

       2.    Legal Principles

             a.     Traffic Stop Justification

       Under the Fourth Amendment to the United States Constitution and article I, section 7 of

the Washington Constitution, a law enforcement officer generally cannot seize a person without

a warrant. Fuentes, 183 Wn.2d at 157-58. If a warrantless seizure occurs, the State has the

burden of showing that it falls within one of the carefully drawn exceptions to the warrant

requirement. State v. Z.U.E., 183 Wn.2d 610, 617, 352 P.3d 796 (2015).




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No. 52448-1-II


          One established exception is a brief investigative detention of a person, known as a

Terry1 stop. Id. Warrantless traffic stops are lawful under this exception if the officer had “at

least a reasonable articulable suspicion of either criminal activity or a traffic infraction.” State v.

Chacon Arreola, 176 Wn.2d 284, 292-93, 290 P.3d 983 (2012). The suspicion must be based on

specific and articulable facts. Z.U.E., 183 Wn.2d at 617. If an officer did not have a reasonable

suspicion, a detention is unlawful and evidence discovered during the detention must be

suppressed. Fuentes, 183 Wn.2d at 158.

          We determine the lawfulness of an investigative stop based on the “totality of the

circumstances.” Id. “The totality of circumstances includes the officer’s training and

experience, the location of the stop, the conduct of the person detained, the purpose of the stop,

and the amount of physical intrusion on the suspect’s liberty.” Id. The focus is on what the

officer knew at the inception of the stop. Id.

          An officer can rely on his or her experience to identify seemingly innocent facts as

suspicious. State v. Moreno, 173 Wn. App. 479, 492, 294 P.3d 812 (2013). Facts that appear

innocuous to an average person may appear suspicious to an officer in light of past experience.

Id. at 493. And “officers do not need to rule out all possibilities of innocent behavior before they

make a stop.” Fuentes, 183 Wn.2d at 163.

          Whether a warrantless investigative stop was justified or represents a constitutional

violation is a question of law that we review de novo. State v. Bailey, 154 Wn. App. 295, 299,

224 P.3d 852 (2010).




1
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).



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No. 52448-1-II


             b.    Applicable Cases

        The parties rely on three cases that address the circumstances under which a driver

crossing a lane divider or fog line gives rise to a reasonable suspicion of criminal activity or a

traffic infraction sufficient to justify an investigative traffic stop.

        In State v. Prado, a police officer stopped Prado after observing his vehicle cross by

approximately two tire widths for one second an eight-inch wide line dividing the exit lane from

the adjacent lane. 145 Wn. App. 646, 647, 186 P.3d 1186 (2008). Division One of this court

noted that RCW 46.61.140(1) required a vehicle to stay within a single lane “as nearly as

practicable.” Prado, 145 Wn. App. at 648. The court believed that this language demonstrated

the legislature’s recognition that “brief incursions over the lane lines will happen.” Id. at 649.

The court concluded, “A vehicle crossing over the line for one second by two tire widths on an

exit lane does not justify a belief that the vehicle was operated unlawfully.” Id. However, the

court also noted that “there was no other traffic present and no danger posed to other vehicles.”

Id. Because this brief incursion over the line was the sole basis for the officer’s stop, the court

held that the stop was illegal. Id.

        In State v. McLean, a trooper observed the defendant weave from side to side within the

left lane of travel and then cross the fog line three times. 178 Wn. App. 236, 241, 313 P.3d 1181

(2013). The trooper suspected the driver was impaired and initiated a traffic stop. Id. The

trooper testified that he had training and experience in identifying impaired drivers. Id. at 240.

He estimated that he had made over 200 arrests for driving under the influence. Id.

        This court held that the stop was lawful because the trooper had a reasonable suspicion

that the driver was under the influence. Id. at 245. The court stated,

        From the articulable fact of [the trooper’s] observation, and from his training and
        experience identifying driving under the influence, it was rational for [the trooper]



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No. 52448-1-II


       to infer that there was a substantial possibility that Mclean was driving under the
       influence. That substantial possibility establishes a reasonable suspicion permitting
       [the trooper] to make a warrantless traffic stop.

Id.

       In State v. Jones, a police officer stopped Jones after observing his vehicle pass over the

fog line about an inch three times, each time correcting its travel with a slow drift. 186 Wn.

App. 786, 788, 347 P.3d 483 (2015). There were no other vehicles on the road at the time. Id.

A police officer initiated a traffic stop because of erratic lane travel. Id. Division One held that

the traffic stop was unlawful even though the vehicle crossed the fog line three times instead of

only once as in Prado. Id. at 791-94. The court concluded that the record did not support a

finding that the officer made the traffic stop based on a reasonable suspicion of criminal activity.

Id. at 793. The court explained its decision in Prado:

       [O]ur Prado decision did not depend on the fact that the driver crossed the lane line
       only once. Rather, we used a totality of the circumstances analysis that included
       factors such as other traffic present and the danger posed to other vehicles. This
       represents a more sophisticated analysis than a simple tally of the number of times
       a tire crossed a line.

Id. at 791-92.

       The court also distinguished McLean based on the evidence in that case that the trooper

had extensive training and experience identifying impaired drivers and the trial court’s finding

that the trooper made the stop based on a reasonable suspicion that the driver was under the

influence. Jones, 186 Wn. App. at 793. By contrast, in Jones there was no evidence about the

officer’s training and experience in identifying impaired drivers, the officer did not testify that

she suspected the driver was impaired, and there was no evidence of dangerous driving. Id. In

addition, the trial court did not find that the officer stopped the driver because of a reasonable

suspicion that he was driving under the influence. Id.




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No. 52448-1-II


       3.    Substantial Evidence

       Tysyachuk initially argues that substantial evidence did not support the trial court’s

findings of fact underlying the court’s conclusion that the traffic stop was lawful. We disagree.

       First, Tysyachuk challenges the trial court’s finding that “the defendant’s vehicle was

swerving inside and outside of its lane, and when the defendant’s vehicle left its lane it nearly

caused a collision with a vehicle traveling in the neighboring lane. One vehicle in the

neighboring lane slowed and merged to the right to avoid the defendant’s unsafe driving.” CP at

123-24. He claims that the evidence showed only that the car crossed the divider line to the right

and then crossed the fog line to the left.

       However, Smith expressly testified that Tysyachuk’s car caught his attention because he

noticed the driver making some “jerking movements,” RP (June 4, 2018) at 34, and the trial

court found that testimony credible. And Smith also referred to Tysyachuk’s driving as

“swerving.” RP (June 4, 2018) at 9.

       Q. And in your training and experience was the driving that you observed of the
       Cadillac DeVille consistent with possible driving under the influence?

       A. Yes. Swerving is what it’s commonly referred to as, not being able to maintain
       a straight travel of pathway in a lane. It’s one of the known clues taught to us at
       the academy.

RP (June 4, 2018) at 9.

       In addition, the trial court’s finding was based on its own review of the video footage.

The court interpreted Tysyachuk’s movements as swerving, and we defer to that interpretation.

And it was undisputed that Tysyachuk crossed the lines on both sides of his lane. We conclude

that substantial evidence supported the trial court’s finding that Tysyachuk was swerving inside

and outside of his lane.




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No. 52448-1-II


        Second, Tysyachuk challenges the trial court’s finding that the dashboard camera footage

corroborated Smith’s testimony. He claims that Smith’s testimony and the video footage did not

establish that he almost caused a collision. He contends that the evidence shows that there was

no danger of a collision and that the car in the next lane simply slowed down and moved to the

right as a precaution.

        However, Smith testified that the other car altered its path because of Tysyachuk’s

driving: “I observed another car slow down and merge away from the DeVille because of the

unsafe lane travel.” RP (June 4, 2018) at 8. The trial court reviewed the video footage and

apparently inferred that a collision might have occurred if the other car had not changed lanes.

Once again, we defer to the trial court’s interpretation of the evidence. We conclude that

substantial evidence supported the trial court’s finding that Tysyachuk’s driving nearly caused a

collision.

        4.   Totality of Circumstances Analysis

        The ultimate question here is whether the trial court’s factual findings support its legal

conclusion that Tysyachuk’s driving provided Smith with a reasonable suspicion that criminal

activity or a traffic infraction had occurred and therefore that the traffic stop of Tysyachuk’s car

was lawful. We conclude that the findings support this conclusion.

        Tysyachuk argues that Prado, Jones, and cases from other jurisdictions establish that his

driving did not create a reasonable suspicion to justify the traffic stop. But we conclude that this

case is more similar to McLean and is distinguishable from Prado and Jones.

        First, as in McLean, Smith testified to and the trial court made an unchallenged finding

regarding Smith’s extensive training and experience in recognizing impaired driving. Smith

testified that based on his training and experience, he believed that Tysyachuk’s driving was




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No. 52448-1-II


consistent with driving under the influence. This court in McLean found similar evidence

significant in establishing a reasonable suspicion. 178 Wn. App. at 245. As noted above, facts

that appear innocuous to an average person may appear suspicious to an officer in light of past

experience. Moreno, 173 Wn. App. at 493. By contrast, the court in Jones emphasized that

there was no evidence in that case regarding the officer’s training and experience. Jones, 186

Wn. App. at 793.

       Second, in McLean the trooper observed the driver “weave within its lane” in addition to

crossing the fog line three times. 178 Wn. App. at 245. And this court concluded that based on

the trooper’s experience, it was reasonable for him to infer that the driver was under the

influence. Id. Similarly, Smith observed Tysyachuk’s car making jerking movements and

swerving and determined that Tysyachuk’s driving was consistent with driving under the

influence. Therefore, as in McLean, it was reasonable for Smith to infer that Tysyachuk was

driving under the influence. By contrast, in Jones the officer did not testify that she suspected

that the driver was impaired. 186 Wn. App. at 793.

       Third, the trial court found that Tysyachuk’s unsafe driving affected another driver,

causing that driver to change lanes to avoid a possible collision. By contrast, the court in Prado

emphasized that “there was no other traffic present and no danger posed to other vehicles.” 145

Wn. App. at 649. In Jones, the court noted that “[t]here were no other vehicles on the roadway

at the time.” 186 Wn. App. at 788. And the court in Jones expressly recognized that the totality

of circumstances analysis included “factors such as other traffic present and the danger posed to

other vehicles.”

       We evaluate the reasonableness of Smith’s suspicion that Tysyachuk was engaged in

criminal activity or a traffic violation based on the totality of the circumstances. Fuentes, 183




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No. 52448-1-II


Wn.2d at 158. Here, the totality of the circumstances included the nature of Tysyachuk’s

driving, Smith’s training and experience regarding the detection of impaired driving and his

conclusion that Tysyachuk’s driving was consistent with impairment, and the fact that

Tysyachuk potentially posed a danger to another driver. Based on these circumstances, we

conclude that Smith had a reasonable suspicion that Tysyachuk was engaged in criminal activity

or a traffic violation.

        Accordingly, we hold that the trial court did nor err in concluding that Smith’s traffic stop

of Tysyachuk was lawful.

B.      PROPOSED BIFURCATION OF TRIAL

        Tysyachuk argues that the trial court erred in denying his motion to bifurcate the trial so

the jury would only learn of his prior DUI offenses after it found him guilty of the charged

offense. We disagree.

        We review a trial court’s decision on whether to bifurcate a trial for an abuse of

discretion. State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008). A trial court abuses its

discretion only when its decision is manifestly unreasonable or based on untenable grounds.

State v. Monschke, 133 Wn. App. 313, 335, 135 P.3d 966 (2006).

        Under RCW 46.61.502(6), a person is guilty of the offense of felony DUI if he or she

“has three or more prior offenses within ten years as defined by RCW 46.61.5055.” Prior

convictions that raise the level of a crime are an essential element of the charged crime that the State

must prove beyond a reasonable doubt. Roswell, 165 Wn.2d at 189.

        Tysyachuk proposed that his trial be bifurcated into two phases: one phase for the jury to

render a verdict on his DUI charge and, if he was convicted of DUI, a second phase for the jury

to decide whether he had three or more prior DUI offenses. Under this proposal, no evidence

regarding the prior offenses would be presented in the first phase.


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No. 52448-1-II


       In Roswell, the court addressed a similar bifurcation proposal in a sex offense case where

a prior offense would elevate the crime to a felony. Id. at 189-90. The defendant proposed that

the jury would determine whether he had committed the charged crime and the judge would

determine the prior conviction element. Id. at 190. The court declined to approve this

procedure. Id. at 189. The court expressly rejected the argument that a defendant has a right to a

bifurcated trial when prior convictions are an essential element of the charged crime. Id. at 197-

98.

       The court acknowledged that a defendant may stipulate to the fact that he or she had a

prior conviction. Id. at 195 (citing Old Chief v. United States, 519 U.S. 172, 191, 117 S. Ct. 644,

136 L. Ed. 2d 574 (1997)). But the court noted that the defendant cannot stipulate to the prior

conviction element and have that element completely removed from the jury’s consideration.

Roswell, 165 Wn.2d at 195.

       The court in Roswell distinguished State v. Oster, 147 Wn.2d 141, 52 P.3d 26 (2002),

which held that giving a to-convict instruction that did not include the prior conviction element

and a separate special verdict form to address the prior conviction element was constitutionally

permissible. Roswell, 165 Wn.2d at 197. The court in Roswell stated, “[W]e certainly did not

suggest [in Oster] that defendants have a right to waive their right to a trial by jury on certain

elements so as to prevent the jury from hearing prejudicial evidence. Courts have long held that

when a prior conviction is an element of the crime charged, it is not error to allow the jury to

hear evidence on that issue.” Id.

       The court stated that “[w]ithin the parameters we have laid out, trial courts may exercise

their sound discretion to reduce unnecessary prejudice where practical.” Id. at 198. One

allowable procedure is to use separate jury instructions as in Oster. Id. Another procedure the




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No. 52448-1-II


court suggested is to allow the defendant to “stipulate to the prior conviction element but the trial

court could inform the jury of the element by utilizing statutory citations rather than the name of

the crime.” Id. at 198 n.6.

       Roswell controls here. The court in Roswell declined to approve a bifurcation similar to

Tysyachuk’s proposed bifurcation, where the State would be prevented from presenting the

evidence necessary to prove an essential element of the crime and the jury would be prevented

from considering such evidence. Id. at 189, 197-98. Because the existence of Tysyachuk’s prior

offenses was an element of the charged crime, the trial court did not abuse its discretion in

denying the motion to bifurcate and allowing the jury to hear evidence of prior offenses when

deciding whether to convict him of that charged crime. See id. at 197.

       Tysyachuk cites State v. Wu, 6 Wn. App. 2d 679, 431 P.3d 1070 (2018), aff’d, 194 Wn.2d

880, 453 P.3d 975 (2019), where the trial court allowed the type of bifurcation he proposed. He

claims that the trial court here erred by not exercising its discretion to allow a similar procedure. 2

       However, Roswell is clear that a defendant does not have the right to a bifurcated trial.

165 Wn.2d at 197-98. The trial court here applied a procedure the court in Roswell expressly

approved to reduce prejudice – using the statutory citation when instructing the jury on

Tysyachuk’s stipulation to prior offenses. Id. at 198 n.6. We conclude that applying this

procedure was a proper exercise of the trial court’s discretion.3




2
 We note that neither the Court of Appeals nor the Supreme Court in Wu addressed the propriety
of the bifurcation procedure the trial court used. We need not address whether this procedure is
consistent with Roswell.
3
  Tysyachuk also contends that the trial court failed to recognize that it had the discretion to
allow his proposed bifurcation. But the trial court concluded that it was not appropriate to
bifurcate, not that it was precluded from bifurcating.


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No. 52448-1-II


        We hold that the trial court did not abuse its discretion in denying Tysyachuk’s motion

for a bifurcated trial.

                                           CONCLUSION

        We affirm Tysyachuk’s convictions.

        A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2.06.040, it is so ordered.

        In the unpublished portion of this opinion, we address and reject Tysyachuk’s remaining

argument. We hold that the trial court did not abuse its discretion in admitting the results of a

blood alcohol test performed after Tysyachuk’s arrest.

                                       ADDITIONAL FACTS

        At trial, Smith testified that he took Tysyachuk to a hospital for a blood draw. He

testified that he knew William Davis, the employee that drew Tysyachuk’s blood, having worked

with him several times in the past. Smith testified that he attended the blood draw and provided

the vials for the blood draw after checking that the seals on the vials were still intact, and that the

vials contained anticoagulant powder and had not expired. He observed Davis wipe the draw

area on Tysyachuk’s arm with iodine after Smith verified that it did not contain alcohol. Smith

testified that he observed the needle puncturing the skin, observed the blood go into the vials,

and observed Davis attach the identifying information to the vial. Davis then mixed the blood

and anticoagulant powder by turning the vials over.

        Davis did not testify at trial. Instead, his supervisor testified that Davis was a certified

phlebotomist, licensed to draw blood in Washington. He testified that Davis was trained to




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No. 52448-1-II


follow the hospital protocols for criminal investigations and that he had no doubt that Davis

followed these protocols in this case.

        Rebecca Flaherty testified that she was the certified toxicologist that tested the blood

samples at the State Toxicology lab. Tysyachuk objected to Flaherty testifying to the results of

the testing, arguing that there was insufficient evidence about how the blood draw was

performed to establish a foundation for admissibility. The trial court overruled the objection.

Flaherty then testified that the samples showed a result of 0.20 grams of ethanol per 100

milliliters, which is over twice the legal limit.

                                             ANALYSIS

        Tysyachuk argues that the trial court erred in admitting the results of the blood-alcohol

test because the State did not lay a proper foundation for admissibility. We disagree.

        We review a trial court’s ruling on the admissibility of blood test evidence for an abuse of

discretion. State v. Brown, 145 Wn. App. 62, 69, 184 P.3d 1284 (2008). The trial court abuses

its discretion when it admits blood test evidence when there is insufficient prima facie evidence

that the blood draw and blood analysis was performed properly. Id. at 69-70. Tysyachuk has the

burden of showing an abuse of discretion. Id. at 69.

        The court in Brown adopted the definition of prima facie evidence in RCW

46.61.506(4)(b), a section in the driving under the influence statute: “[E]vidence of sufficient

circumstances that would support a logical and reasonable inference of the facts sought to be

proved.” 145 Wn. App. at 69. The court further stated, “To determine the sufficiency of the

evidence of foundational facts, the court must assume the truth of the State’s evidence and all

reasonable inferences from it in a light most favorable to the State.” Id. (citing RCW




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No. 52448-1-II


46.61.506(4)(b)). “Once a prima facie showing is made, it is for the jury to determine the weight

to be attached to the evidence.” Brown, 145 Wn. App. at 70.

       Tysyachuk claims that the State did not present sufficient evidence regarding the blood

draw procedures because Davis, the person who drew the blood, did not testify. However, Smith

testified in detail about how Davis collected Tysyachuk’s blood. Smith confirmed that there

were no abnormalities regarding how the blood sample was collected. In addition, Davis’s

supervisor testified that (1) Davis was a certified phlebotomist licensed to draw blood in

Washington; and (2) Davis was trained to follow the hospital protocols for criminal

investigations.

       Even though Davis did not testify, the evidence presented was sufficient to make a prima

facie showing that the blood draw was performed properly. We hold that the trial court did not

abuse its discretion in allowing the test results to be admitted into evidence.

                                          CONCLUSION

       We affirm Tysyachuk’s convictions.



                                                      MAXA, J.



 We concur:



SUTTON, A.C.J.




GLASGOW, J.




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