              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF SEATTLE,                                                                 )
                                                                                 )    No. 78304-1-I
                                        Appellant,                               )
                                                                                 )    DIVISION ONE
             v.                                                                  )
                                                                                 )
JEFFREY LEVESQUE,                                                                )    PUBLISHED OPINION
                                                                                 )
                                         Respondent.                             )    FILED: March 16, 2020
__________________________________________________________________________________)

             SMITH, J.          —     This case arises from Jeffrey Levesque’s appeal of his

conviction for driving under the influence (DUI). During trial in Seattle Municipal

Court, Officer Calvin Hinson testified that when he arrested Levesque, Levesque

showed signs and symptoms consistent with having consumed a central nervous

system (CNS) stimulant and was “definitely impaired.” Following his conviction,

Levesque appealed to the superior court, which reversed. The city of Seattle

(City) appeals the superior court’s decision.

             We conclude that because Officer Hinson was not a drug recognition

expert (DRE) and lacked otherwise sufficient training and experience, he was not

qualified to opine that Levesque showed signs and symptoms consistent with

having consumed a particular category of drug. Furthermore, because his

opinion that Levesque was “definitely impaired” constituted an impermissible

opinion of Levesque’s guilt, the trial court’s admission of that testimony violated

Levesque’s constitutional right to have the jury determine an ultimate issue.

Finally, because Levesque presented an alternative theory for his behavior, the
No. 78304-1 -1/2

City did not establish beyond a reasonable doubt that any reasonable jury would

have convicted Levesque. Therefore, we affirm the superior court’s reversal of

Levesque’s conviction.

                                              FACTS

       On April 29, 2015, the Seattle Police Department dispatched Officers

Calvin Hinson and Sarah Coe to the scene of an automobile accident involving

two vehicles. Levesque had failed to stop his vehicle prior to hitting the vehicle in

front of him. The accident caused moderate to severe damage, and Levesque’s

vehicle could not be driven.

       Officer Hinson placed Levesque under arrest for DUI. Officer Hinson later

testified that he found probable cause to make the arrest based on

       the manifest driving[,] which [included] the accident while not being
       able to remember how the accident was caused[; t]he signs and
       symptoms of possible impairment of under a stimulant which
       included the perspiring while standing outside of the vehicle on the
       West Seattle Bridge while it was chilly outside and windy; the
       inability to recollect the events; and just the overall scene; and the
       conversation that we had   .   . and his mannerisms and his actions.
                                          .




Although Officer Hinson had received training in field sobriety tests (FST5), he

did not perform any FSTs at the scene because of Levesque’s symptoms, the

absence of any alcohol smell, and the location of the accident and corresponding

impracticability of FSTs. Officer Hinson did not perform a horizontal gaze

nystagmus (HGN) test for signs of impairment. Officer Hinson, who is not DRE

certified, testified that he attempted to contact a DRE by radio, but no DRE was




                                               2
No. 78304-1-1/3

available.1

       After arresting Levesque, Officer Hinson transported Levesque to

Harborview Medical Center, where he had his blood drawn. The drug analysis

results showed that Levesque’s blood contained 0.14 milligrams per liter (mg/L)

of amphetamine and 0.55 mg/L of methamphetamine. The City charged

Levesque with DUI.

           Before trial, Levesque moved in limine to, among other things, (1) limit

officer testimony to personal observations and (2) exclude any testifying officer’s

opinion on ultimate issues. The trial court granted the first motion. The trial court

also granted the second motion but ruled that an officer could state “in his

opinion, based upon the totality of the circumstances, that [Levesque] was

impaired.” The trial court also granted Levesque’s additional motion to exclude

officers as experts but declared that an officer—testifying as a lay witness—could

“certainly testify to what he [or she] objectively observed during the investigation.”

       At trial, the City played clips of the dashboard videotape from the incident.

Additionally, Officer Hinson testified that he approached Levesque at the scene

and asked him what happened. Levesque responded that he remembered

driving but that “nothing really happened” and that he could not remember the

accident. Because Levesque did not have his driver’s license, Officer Hinson

asked Levesque for his address or the last four digits of his social security


       1 DRE certification involves in-field experience and a series of tests and
training. State v. Baity, 140 Wn.2d 1, 4-5, 991 P.2d 1151(2000). DRE officers
learn to identify whether an individual is under the influence of alcohol or a
particular category of drug and whether or not the individual is impaired. Baity,
140 Wn.2d at 4.

                                            3
No. 78304-1 -114

number to verify his identity. Levesque had difficulty responding and answered

inappropriately by stating his birth date many times.

       Officer Hinson testified that “through [his] training [and] experience”

Levesque showed “signs as possibly being impaired by a stimulant.” When

asked to opine as to whether Levesque “was impaired by drugs,” Officer Hinson

testified that his “[o]pinion was that [Levesque] was definitely impaired at the time

of the accident.” Officer Coe testified that Levesque was “very shaky.              .   .   [and]

also very sweaty” and that “[s]weating is indicative of an upper involved in the

system.” Levesque objected to Officer Hinson’s testimony—but not Officer

Coe’s—and requested a mistrial outside the presence of the jury following a

lunch recess. The court overruled Levesque’s objections.

       The City also presented testimony from Captain Tracy Franks of the

Seattle Fire Department and forensic scientist Andrew Gingras. Captain Franks

testified that at the scene of the accident, she determined that Levesque’s heart

rate and blood pressure were slightly elevated but that Levesque’s “pupils were

mid, equal, and reactive to light.” However, Captain Franks also testified that the

conversation she had with Levesque “was erratic, [and] he didn’t make sense.”

Captain Franks’ report from the scene of the accident stated that Levesque

“show[ed] behavior consistent with recreational drug use: Short attention span,

having to ask questions multiple times, unable to open door without assistance,

patient denies being in an accident.”

      Gingras testified regarding how methamphetamine can impact someone’s

driving abilities and that “while using methamphetamine   .   .   .   ,   driving tends to be



                                         4
No. 78304-1 -1/5

a little faster, so speeding is usually seen, and then excessive lane travel.”

Gingras also testified regarding the “typical therapeutic range” for

methamphetamine levels in the blood and how an individual would react to

methamphetamine consumption if prescribed it. Gingras testified, however, that

whether a specific level of methamphetamine in the blood impairs an individual’s

ability to drive “depends on that individual” and agreed that “blood tests      .   .   .   [are]

insufficient to establish whether someone is impaired or not.”

        Levesque’s defense theory was that he was prescribed medication for

injuries which explain his behavior. In support of this defense, Levesque

presented testimony from his physician, Dr. Katherine Mayer, about treatment

and prescriptions that she provided for Levesque prior to the accident, her

diagnoses, and Levesque’s symptoms.

       The jury convicted Levesque of driving while under the influence.

Levesque appealed his conviction to the superior court, which reversed based on

the admission of Officer Hinson and Officer Coe’s testimonies. The superior

court determined that “[b]ecause neither testifying officer was a qualified [DRE]

and the required 12-step DRE protocol was not performed, the foundation for this

testimony was insufficient pursuant to State v. Baity, 140 Wn.2d 1[, 991 P.2d

1151] (2000).” The court also held that the errors were preserved for appeal

through “litigat[ion] in pretrial motions and midtrial,” and that the trial court’s error

admitting the testimony “was not harmless.” The City appealed, and we granted

discretionary review.




                                            5
No. 78304-1-1/6

                                                  ANALYSIS

       The City contends that Officer Hinson’s and Officer Coo’s testimonies

were admissible, and thus, the superior court erred by reversing Levesque’s

conviction. We disagree. Specifically, reversal was proper based on the

erroneous admission of Officer Hinson’s testimony.

                         Preservation of Issues for Ar~eal

       As an initial matter, the City claims that Levesque failed to preserve his

challenges to the testimony from Officer Hinson and Officer Coo. We conclude

that Levesque failed to preserve his challenge to Officer Coo’s testimony but did

preserve his challenge to Officer Hinson’s testimony.

       “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.” The purpose of these

requirements is to ‘“encourage[] parties to make timely objections[ and] give[]

the trial judge an opportunity to address an issue before it becomes an error on

appeal.” Wilcox v. Basehore, 187 Wn.2d 772, 788, 389 P.3d 531 (2017)

(quoting State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015)).

       Here, Levesque’s objections to Officer Hinson’s testimony were both

timely and specific. The objections were timely because—contrary to the City’s




                                                      6
 No. 78304-1 -117

contention that Levesque simply “bet on the verdict”2—Levesque objected at one

of the earliest opportunities outside of the jury, i.e. at the next recess. And the

objections were specific because Levesque provided the trial court with the

grounds for his objection. Levesque asserted that (1) “Officer Hinson did not

make the adequate foundation to testify to Mr. Levesque being impaired by a

drug, when he did not conduct any DRE examination [and a] DRE wasn’t called,”

(2) Officer Hinson’s testimony violated the trial court’s ruling in limine by stating

that Levesque was impaired or under the influence, and (3) the testimony went to

the ultimate issue in the case.

       The City contends that Levesque’s objections were neither timely nor

specific enough and that the only issue preserved for appeal is the trial court’s

denial of Levesque’s request for a mistrial. This contention is unpersuasive for

two reasons. First, the purpose of the objection requirements is to ensure that

the trial court is able to rule on the issue and provide a curative instruction.

Wilcox, 187 Wn.2d at 788. Here, Levesque’s objections—though not

contemporaneous—do not undercut this purpose. The trial court was able to and

did decide the issues presented in this appeal and did so independently of the

motion for a mistrial. Specifically, the court determined that Officer Hinson did

not state a legal conclusion that Levesque was under the influence, that the

foundation was appropriately laid for Officer Hinson’s testimony, and that his


        2SeeStatev. Burns, 193 Wn.2d 190, 209, 438 P.3d 1183 (2019)
(“Applying ER 103 and requiring a defendant to object at trial ‘protects the
integrity of judicial proceedings by denying a defendant the opportunity to sit on
his rights, bet on the verdict, and then, if the verdict is adverse, gain a retrial by
asserting his rights for the first time on appeal.” (quoting State v. O’Cain, 169
Wn. App. 228, 243, 279 P.3d 926 (2012))).

                                           7
No. 78304-1 -1/8

testimony did not go to the ultimate issue of Levesque’s guilt. Furthermore, the

court had adequate time to provide a curative instruction to the jury. Thus, the

record reflects that Levesque’s objections were sufficiently specific and timely to

give the trial court opportunity to correct any error.

       Second, the cases on which the City relies in support are distinguishable.

In each case, the objecting party either provided no basis for the objection or

failed to object entirely. See City of Seattle v. Carnell, 79 Wn. App. 400, 402,

902 P.2d 186 (1995) (holding that the statement “lack of a ‘sufficient foundation”

without “indicat[ion of] what specific foundational requirement was lacking” is

insufficient to preserve error for appeal); State v. Sullivan, 69 Wn. App. 167, 169,

173, 847 P.2d 953 (1993) (holding that because the defendant failed to object to

the testimony and did not cite the testimony’s admission in later motions, the

error was not preserved for review on appeal); State v. Casteneda-Perez, 61 Wn.

App. 354, 363, 810 P.2d 74 (1991) (holding that “calls for comment on the

evidence” lacks specificity and is insufficient to preserve error for appeal); State

v. Hubbard, 37 Wn. App. 137, 145, 679 P.2d 391 (1984) (holding that an

objection based on a lack of foundation “with no particularity as to the nature of

the deficiency” is insufficient to preserve error for appeal), rev’d on other

grounds, 103 Wn.2d 570, 693 P.2d 718 (1985). But here, as discussed,

Levesque timely provided the trial court with the specific grounds for his

objections to Officer Hinson’s testimony. Levesque thus preserved his challenge

to Officer Hinson’s testimony.

       Levesque failed, however, to preserve his challenge to Officer Coe’s



                                           8
No. 78304-1 -119

testimony because he made no objection at all. Levesque claims that his

challenge was preserved because Officer Coe’s testimony violated the ruling in

limine to limit officer testimony to personal observations. Specifically, Levesque

contends that the violation is alone adequate to preserve our review of Officer

Coe’s testimony. But he is incorrect: “A party is obligated to renew an objection

to evidence that is the subject of a motion in limine in order to preserve the error

for review.” City of Bellevue v. Kravik, 69 Wn. App. 735, 742, 850 P.2d 559

(1993). Levesque also contends that his challenge was preserved because the

City failed to list Officer Coe as an expert witness. But Levesque cites no

authority for the proposition that he can preserve his challenge based solely on

the City’s exclusion of Officer Coe from its expert witness list. Therefore, we are

not persuaded. See DeHeer v. Seattle Post-Intelliqencer, 60 Wn.2d 122, 126,

372 P.2d 193 (1962) (“Where no authorities are cited in support of a proposition,

the court is not required to search out authorities, but may assume that counsel,

after diligent search, has found none.”).

                    Admissibility of Officer Hinson’s Testimony

       The City claims that the superior court erred by concluding that Officer

Hinson’s testimony regarding Levesque’s impairment by stimulants was

inadmissible. Because Officer Hinson’s testimony lacked sufficient foundation

and because the testimony was an impermissible opinion of guilt, we disagree.

       We review admission of opinion testimony for abuse of discretion. State v.

Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992). And opinion testimony must

be deemed admissible by the trial court before it is offered. State v.



                                            9
No. 78304-1 -1/10

Montciomerv, 163 Wn.2d 577, 591, 183 P.3d 267 (2008). Opinion testimony may

be admissible under ER 701 as lay testimony or ER 702 as expert testimony.

However, ‘[w]hen opinion testimony that embraces an ultimate issue is

inadmissible in a criminal trial, the testimony may constitute an impermissible

opinion on guilt.” State v. Quaale, 182 Wn.2d 191, 197, 340 P.3d 213 (2014)

(citing City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993)).

“Impermissible opinion testimony regarding the defendant’s guilt may be

reversible error.” Quaale, 182 Wn.2d at 199.

       Here, the opinion testimony at issue consists of Officer Hinson’s

statements that Levesque showed signs and symptoms of being impaired by a

specific category of drug, i.e., a CNS stimulant, and that Levesque was “definitely

impaired” at the time of the accident:

      [Officer Hinson:] I could see that he was perspiring. I misspoke on
      the in-car video. He did not have dilated pupils, he had constricted
      pupils which means very, very small. And, as I said, through my
      training experience that I recognize as a sign[] as possibly being
      impaired by a stimulant.



      [Officer Hinson:] The signs and symptoms of possible impairment
      of under a stimulant which included the perspiring while standing
      outside of the vehicle on the West Seattle Bridge while it was chilly
      outside and windy; the inability to recollect the events; and just the
      overall scene; and the conversation that we had between him and
      his mannerisms and his actions.



      [Prosecution]: Based on your training and experience, and all of
      the observations and interactions you had with Mr. Levesque on
      this day, did you form an opinion as to whether he was impaired by
      drugs?



                                         10
No. 78304-1-Ill 1

       [Officer Hinson]: Yes.

       [Prosecution]: What is it?

       [Officer Hinson]: Opinion was that he was definitely impaired at the
       time of the accident.

(Emphasis added.) As further discussed below, Officer Hinson’s opinion

testimony was not admissible under ER 701 or ER 702 because Officer Hinson

was not qualified to opine as to whether Levesque was affected by a specific

category of drugs. Furthermore, Officer Hinson’s testimony that Levesque was

“definitely impaired” constituted an impermissible opinion of guilt. Therefore, the

trial court erred by admitting Officer Hinson’s testimony.

      Officer Hinson’s Testimony was Not Admissible as an Expert Opinion

       An expert witness may testify in the form of opinion or otherwise “[i]f

scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, [and the] witness

qualifie[s] as an expert by knowledge, skill, experience, training, or education.”

ER 702. “Before allowing an expert to render an opinion, the trial court must find

that there is an adequate foundation so that an opinion is not mere speculation,

conjecture, or misleading.” Johnston-Forbes v. Matsunacia, 181 Wn.2d 346, 357,

333 P.3d 388 (2014). “[E]xpert opinion evidence is usually not admissible under

ER 702 unless it is based on an explanatory theory generally accepted in the

scientific community.” State v. Sanders, 66 Wn. App. 380, 385, 832 P.2d 1326

(1992). However, “where expert testimony does not concern sophisticated or

technical matters, it need not meet the rigors of a scientific theory.” Sanders, 66

Wn. App. at 385-86. To this end, the Washington Supreme Court has


                                          11
No. 78304-1-1/12

“repeatedly held that ‘an expert may be qualified by experience alone.”

Johnston-Forbes, 181 Wn.2d at 355 (quoting In re Marriage of Katare, 175

Wn.2d 23, 38, 283 P.2d 546 (2012)).

       We conclude that the City failed to establish that Officer Hinson was

qualified under ER 702 to opine as an expert. Our Supreme Court’s decision in

Baity is instructive in this regard. Baity involved two consolidated DUI cases

where DRE officers testified to the defendants’ impairment after performing the

DRE 12-step protocol. 140 Wn.2d at 6-8. The then-novel DRE protocol is used

by law enforcement officers to discern whether an individual is under the

influence of one of seven categories of drugs: “(1) [CNS] depressants, (2)

inhalants, (3) phencyclidine (PCP), (4) cannabis, (5) CNS stimulants, (6)

hallucinogens, and (7) narcotic analgesics.” Baity, 140 Wn.2d at 5. The 12-step

DRE protocol involves:

       “(1) breath (or blood) alcohol concentration; (2) interview of the
       arresting officer; (3) preliminary examination; (4) eye examinations;
       (5) divided attention tests; (6) vital signs examination; (7) darkroom
       examination of pupil size; (8) examination of muscle tone; (9)
       examination of injection sites; (10) statements, interrogation; (11)
       opinion; (12) toxicology analysis.”

Baity, 140 Wn.2d at 6. The court addressed whether the DRE protocol satisfied

the standard for novel scientific procedures set forth in Frye v. United States, 54

U.S. App. D.C. 46, 293 F. 1013 (1923).~ Baity, 140 Wn.2d at 13.

       The Baity court concluded that the DRE protocol satisfied the Frye

standard. 140 Wn.2d at 17. In doing so, the court observed that a DRE must

        ~ The Frye standard has been adopted in Washington as the standard for
determining the admissibility of an expert opinion that is based on a novel
scientific theory. State v. Copeland, 130 Wn.2d 244, 255, 922 P.2d 1304 (1996).

                                         12
No. 78304-1-1/13

complete significant training and education before becoming certified, including a

16-hour “preschool” providing an overview of DRE protocol and “instruction on

the seven drug categories and basic drug terminology.” Baity, 140 Wn.2d at 4-5.

A DRE officer must complete an additional 56 hours of DRE education, which

“consists of 30 modules of instruction, including an overview of the development

and validation of the drug evaluation process, and sessions on each drug

category.” Baity, 140 Wn.2d at 5. The program also requires practical field

training, and an “officer must pass a written examination before beginning the

next phase of training.” Baity, 140 Wn.2d at 5. Finally, the officer must

successfully complete 12 examinations, and in those examinations, be able to

“identify an individual under the influence of at least three of the seven drug

categories.” Baity, 140 Wn.2d at 5. The officer must “obtain a minimum 75

percent toxicological corroboration rate” and pass a written test as well as skills

demonstration tests. Baity, 140 Wn.2d at 5.

       Our Supreme Court held that a “DRE officer, properly qualified, may

express an opinion that a suspect’s behavior and physical attributes are or are

not consistent with the behavioral and physical signs associated with certain

categories of drugs.” Baity, 140 Wn.2d at 17-18. The court stated, however, that

“an officer may not testify in a fashion that casts an aura of scientific certainty”

and that the DRE protocol does not allow an officer to opine as to “the specific

level of drugs present in a suspect.” Baity, 140 Wn.2d at 17. Additionally, the

court held that a DRE must still qualify as an expert under ER 702 and present a

proper foundation, i.e., “a description of the DRE’s training, education, and



                                          13
 No. 78304-1-1/14

experience in administering the test, together with a showing that the test was

properly administered.” Baity, 140 Wn.2d at 18. The court remanded for the trial

court to determine whether the DRE properly qualified as an expert. Baity, 140

Wn.2d at 18.

       Although Baity was decided in the context of determining whether the

DRE protocol satisfied the Frye standard, it follows from Baity that absent other

sufficient foundation testimony, an officer is not qualified to opine that a

defendant’s behavior is or is not consistent with that associated with a specific

category of drug unless the officer is a DRE.

       Here, it is undisputed that Officer Hinson is not a DRE. Furthermore, he

lacked otherwise sufficient qualification to express an opinion that Levesque’s

behavior was consistent with having ingested a specific category of drug.

Specifically, Officer Hinson completed only basic training and a 40-hour DUI

course. And, at the time of Levesque’s arrest, he had completed only 13 DUI

investigations, nine of which involved drug related impairment, and most of which

involved assisting a lead officer. These experiences may provide a basis for

testimony that a person shows signs and symptoms consistent with drug or

alcohol consumption generally or what specific symptoms were observed; they

do not, however, provide a basis for opining that a person is affected by a

particular category of drug or that the effect rises to the level of impairment. In

short, and while not every expert presenting an opinion on the issue must be




                                          14
No. 78304-1-1/15

DRE certified,4 Officer Hinson’s lack of DRE certification and minimal police

experience are not sufficient to qualify him to give such an opinion. Thus, Officer

Hinson’s opinion testimony was not admissible as expert opinion testimony.

       The City relies on State v. McPherson for the proposition that an officer

may testify about a specialized or scientific matter based on experience and

training alone. 111 Wn. App. 747, 46 P.3d 284 (2002). In McPherson, Detective

Terry Boehmler testified as an expert on meth labs based on police training and

experience alone. 111 Wn. App. at 761-62. Division Three concluded the

testimony was admissible expert testimony. McPherson, 111 Wn. App. at 762.

However, the McPherson court highlighted “that methamphetamine cooking is

relatively easy and is done by numerous persons without a higher education.”

111 Wn. App. at 762. By contrast, discerning which particular class of drug an

individual’s behavior is consistent with is a sophisticated and technical matter.

See Baity, 140 Wn.2d at 4-5. Such testimony requires an adequate foundation

for expert opinion testimony, which did not exist here. More importantly,

Detective Boehmler (1) had investigated 40 to 60 meth labs in the previous six to

seven months, (2) had completed DEA training and recertification, and

(3) “conducted meth lab training for two local police departments.” McPherson,

111 Wn. App. at 752, 762. Thus, whereas Detective Boehmler’s training


       ~ For example, “pharmacologists, optometrists, and forensic specialists”
may be qualified to testify as to what specific drug impairment looks like or if, in
their opinion, behavior was consistent with consumption of a particular category
of drug. See Baity, 140 Wn.2d at 17; see ~so State v. Pirtle, 127 Wn.2d 628,
639-40, 904 P.2d 245 (1995) (A neuropharmacologist and clinical psychologists
were allowed to testify as to the effect of drug abuse on the defendant’s mental
processes.).

                                         15
No. 78304-1 -1116

provided a sufficient foundation for expert testimony, Officer Hinson’s did not.

       Finally, the City’s reliance on nonbinding case law from outside of this

jurisdiction is equally misplaced, and we do not address those cases. ~ State

v. Rambo, 250 Or. App. 186, 187-88, 279 P.3d 361 (2012) (holding that a DRE

expert who completed 11 of the 12 DRE steps could testify that the defendant

was under the influence of a narcotic analgesic); State v. Burrow, 142 Idaho 328,

329-30, 127 P.3d 231 (2005) (holding that in an aggravated assault case, an

officer could testify that the defendant showed symptoms consistent with

methamphetamine or other stimulant use); United States v. Sweeney, 688 F.2d

1131, 1145 (7th Cir. 1982) (holding that an experienced methamphetamine user

could testify that a substance was methamphetamine “based upon his prior use

and knowledge of” it); United States v. Habibi, 783 F.3d 1, 5(1st Cir. 2015)

(holding that a Federal Bureau of Investigation special agent could testify that he

investigated a case where “an individual touched    .   .   .   a[n] object with a bare

hand, but when tested, no detectable DNA was found”) (second alteration in

original); Blair v. City of Evansville, 361 F. Supp. 2d 846, 850 (S.D. Ind. 2005)

(allowing a security officer’s testimony on security plans for a vice-presidential

visit). These cases are both nonbinding and distinguishable.

        Officer Hinson’s Testimony was Not Admissible as a Lay Opinion

       Having concluded that Officer Hinson’s testimony was not admissible as

an expert opinion, we next address whether it was admissible as a lay opinion.

We conclude that it was not.

      A lay opinion is admissible only if it is “rationally based on the perception



                                         16
No. 78304-1-1117

of the witness” and “not based on scientific, technical, or other specialized

knowledge within the scope of rule 702.” ER 701(a), (c). Put another way, lay

testimony must be based on “knowledge         .   .   .   from which a reasonable lay person

could rationally infer the subject matter of the offered opinion.” State v. Kunze,

97 Wn. App. 832, 850, 988 P.2d 977 (1999).

       As demonstrated by Baity and the very existence of the DRE protocol and

program, specialized knowledge or experience is required to discern the

particular category of drug by which an individual is affected absent other

specialized experience or knowledge of drug impairment. And a reasonable lay

person with general experience does not have knowledge from which to

rationally infer that an individual is impaired by a specific category of drug. Thus,

Officer Hinson’s testimony was not admissible as a lay opinion.

       The City disagrees and relies on Heatley for the proposition that Officer

Hinson’s testimony was an admissible expert or lay opinion. In Heatley, Officer

Patricia Manning observed Robert Heatley speeding and straddling the center

line with his vehicle. Heatley, 70 Wn. App. at 575. When Officer Manning pulled

Heatley over, she smelled liquor and noticed that Heatley’s speech was slurred

and that he had difficulty balancing. Heatley, 70 Wn. App. at 575-76. Officer

Manning called the Driving While Impaired (DWI) unit, and Officer Mark Evenson

of the DWI unit 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 testified that he had tested over 1,500 drivers for



                                         17
No. 78304-1 -1/18

impairment while driving. Heatley, 70 Wn. App. at 576.~ He then opined:

              ‘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 regarding Heatley’s

alcohol intoxication was admissible as lay opinion testimony based on his

experience and observations. Heatley, 70 Wn. App. at 579-80. And because a

lay witness may testify to a defendant’s intoxication by alcohol, we also

concluded Officer Evenson’s testimony would have been admissible as expert

testimony had he been qualified as an expert. Heatley, 70 Wn. App. at 580 (“[I]f a

lay witness may express an opinion regarding the sobriety of another, there is no

logic to limiting the admissibility of an opinion on intoxication when the witness is

specially trained to recognize characteristics of intoxicated persons.”).

       But here, unlike in Heatley, Officer Hinson did not conduct any FSTs or

other impairment tests. Instead, Officer Hinson relied solely on his general

observations. More importantly, although intoxication by alcohol is a proper

subject for lay—and thus expert—testimony, signs and symptoms of impairment

by a specific category of drug is not. Indeed, as the court said in Baity, a DRE

must base its opinion on the totality of the DRE 12-step evaluation “not on one

element of the test,” and “[w]hen in doubt, the DRE must find the driver is not

under the influence.” 140 Wn.2d at 6. It follows that Officer Hinson—who was

     ~ Heatley was decided before the widespread use of DRE protocol and our
Supreme Court’s decision in Baity.

                                            18
No. 78304-1-1/19

not a DRE and therefore could not and did not perform any step of the DRE

protocol—should not have been permitted to testify that Levesque was affected

by CNS stimulants. In short, such testimony does concern a sophisticated and

technical matter, and without DRE certification or other sufficient foundation for

the specialized testimony, Officer Hinson’s opinion as to the drug by which

Levesque was affected is speculation. For these reasons, Heatley and other

cases involving alcohol intoxication do not control here. See, ~ State v.

Lewellyn, 78 Wn. App. 788, 794, 895 P.2d 418 (1995) (holding that      ‘[ut is well
settled in Washington that a lay witness may express an opinion regarding the

level of intoxication of another”), aff’d State v. Smith, 130 Wn.2d 215, 922 P.2d

811 (1996). Therefore, the City’s argument fails.

       The City also relies on Montgomery for the proposition that Officer

Hinson’s testimony was the proper subject of a lay opinion. In Montgomery, the

court cited Heatley for the proposition that “[a] lay person’s observation of

intoxication is an example of permissible lay opinion.” 163 Wn.2d at 591. But, as

discussed, Heatley pertained to alcohol intoxication. As discussed, this principle

does not extend to the testimony at hand because unlike the effects of a class of

drugs, “[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)). A

lay witness does not need an individual’s BAC to discern that the individual is

stumbling, smells of alcohol, and therefore is intoxicated. But there are not

ordinary or obvious cues by which a lay witness can determine that an individual



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is impaired by a particular class of drugs. Likewise, while the DRE protocol

includes observation as a step, there are no observations, or ordinary or obvious

cues, that, alone, can tell the officer the specific drug an individual ingested or if

they are impaired. Thus, an officer can describe that an individual was shaky or

sweaty, or had dilated or constricted pupils, but an officer may not comment on

the drug class by which an individual is affected based solely on those

observations. Therefore, the principle cited in Montgomery is distinguishable and

does not control.

       The City’s reliance on cases where officers identified substances or

offered perspectives on crime scenes is similarly misplaced. ~ State v.

Hernandez, 85 Wn. App. 672, 678, 935 P.2d 623 (1997) (officer opinion that

substance was cocaine): State v. Russell, 125 Wn.2d 24, 71, 73, 882 P.2d 747

(1994) (detective opinion on typicality of murder crime scenes): State v. Halstien,

122 Wn.2d 109, 128, 857 P.2d 270 (1993) (officer opinion that substance was

semen); State v. Ferguson, 100 Wn.2d 131, 141, 667 P.2d 68 (1983) (lay witness

opinion that substance was semen); Kunze, 97 Wn. App. at 857-58 (law

enforcement officers’ opinions on murder crime scene). None of these cases

involved the type of testimony at issue here. And as discussed, this type of

testimony requires specialized knowledge or experience for an expert opinion.

Therefore, we are unpersuaded.

       In sum, a witness must have the specialized or technical knowledge, skill,

training, or education, or sufficient experience required under ER 702 to opine

that an individual is affected by a particular class of drug. Thus, we hold that



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No. 78304-1-1/21

because Officer Hinson was not DRE certified, did not complete any of the DRE

steps, and lacked otherwise sufficient experience or training, the trial court

abused its discretion by admitting Officer Hinson’s opinion that Levesque’s

behavior was consistent with having taken a specific category of drugs, i.e., CNS

stimulants.

                            Impermissible Opinion of Guilt

       Because we conclude that Officer Hinson’s testimony was otherwise

inadmissible, we next review whether the testimony was an impermissible

opinion on the ultimate issue of Levesque’s guilt. The City contends that the

testimony did not constitute an impermissible opinion of guilt. We disagree.

       Under ER 704, “opinion testimony is not objectionable merely because it

embraces an ultimate issue that the jury must decide.” Quaale, 182 Wn.2d at

197. However, in general, “no witness may offer testimony in the form of an

opinion regarding the guilt or veracity of the defendant; such testimony is unfairly

prejudicial to the defendant ‘because it invad[es] the exclusive province of the

[jury].” State v. Demerv, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (alterations

in original) (internal quotation marks omitted) (quoting Heatley, 70 Wn. App. at

577). “When opinion testimony that embraces an ultimate issue is inadmissible

in a criminal trial, the testimony may constitute an impermissible opinion on guilt.”

Quaale, 182 Wn.2d at 197. We consider the circumstances surrounding the

case to determine whether the testimony was an impermissible opinion of guilt,

“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,



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No. 78304-1 -1/22

and (5) the other evidence before the trier of fact.” Montciomery, 163 Wn.2d at

591 (internal quotation marks omitted) (quoting Demerv, 144 Wn.2d at 759). But

some testimony is “clearly inappropriate for opinion testimony in criminal trials,

including   .   .   .   expressions of personal belief[ } as to the defendant’s guilt.”

Quaale, 182 Wn.2d at 200. The trial court’s admission of such testimony may

result in a constitutional error and support reversal. Quaale, 182 Wn.2d at 201-

02.

       In Quaale, State Patrol Trooper Chris Stone pulled Ryan Quaale over after

Quaale attempted to elude him. 182 Wn.2d at 194. Trooper Stone smelled

alcohol, performed an HGN test on Quaale, and observed that Quaale’s eyes

bounced and had difficulty tracking stimulus. 182 Wn.2d at 194. The State

charged Quaale with a DUI, and at trial, Trooper Stone testified that “‘[t]here was

no doubt that [Quaalej was impaired” by alcohol. Quaale, 182 Wn.2d at 195.

The court concluded that Trooper Stone’s testimony constituted an impermissible

opinion of guilt because Trooper Stone testified as to the defendant’s specific

level of intoxication by referring to him as “impaired”:

              The trooper’s testimony that Quaale was “impaired” parroted
       the legal standard contained in the juiy instruction definition for
       “under the influence.” The word “impair” means to “diminish in
       quantity, value, excellence, or strength.” Thus, the trooper
       concluded that alcohol diminished Quaale to such an appreciable
       degree that the HGN test could detect Quaale’s impairment.

Quaale, 182 Wn.2d at 200 (emphasis added) (citation omitted). The court

reasoned that “the conclusion that the defendant was impaired rests on the

premise that the defendant consumed a sufficient level of intoxicants to be

impaired” and that “the alcohol consumed impaired the defendant, which is the


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No. 78304-1 -1/23

legal standard for guilt.” Quaale, 182 Wn.2d at 199.

       The court’s decision in Quaale is instructive for two reasons. First, the

testimony by the trooper in Quaale is nearly identical to Officer Hinson’s. In

Quaale, Trooper Stone testified that there was “no doubt that [Quaale] was

impaired” by alcohol. 182 Wn.2d at 195. Here, Officer Hinson testified that

Levesque was “definitely impaired” by drugs. Second, the relevant jury

instruction in Quaale was substantially identical to the one used here. In Quaale,

the jury was instructed that “[a] person is under the influence of or affected by

the use of intoxicating liquor if the person’s ability to drive a motor vehicle is

lessened in any appreciable degree.” 182 Wn.2d at 200 (emphasis added).

Here, the instruction stated, “A person is under the influence of or affected by the

use of a drug if the person’s ability to drive a motor vehicle is lessened in any

appreciable degree.” (Emphasis added.)

       Quaale controls here. Like in Quaale, the primary issue before the jury

was whether Levesque drove while under the influence of drugs. And like

Trooper Stone, Officer Hinson opined that drugs affected Levesque to such an

appreciable degree that Officer Hinson’s observations alone could determine that

Levesque was impaired. Finally, like in Quaale, Officer Hinson’s testimony

parroted the legal standard of guilt, which is properly decided by the jury. Thus,

Officer Hinson impermissibly opined as to Levesque’s guilt.

       The City relies on Heatley for the proposition that Officer Hinson’s

testimony was not an improper opinion on guilt. The City’s reliance is misplaced.

In Heatley, the arresting officer testified that Heatley “was obviously intoxicated



                                          23
No. 78304-1-1/24

and affected by the alcoholic drink.   .   .   [and unable to] drive a motor vehicle in a

safe manner.” 70 Wn. App. at 576. There, the testimony was not an

impermissible opinion on defendant’s guilt because the testimony was admissible

lay opinion based on personal observations and merely supported a conclusion

of Heatley’s guilt. Heatley, 70 Wn. App. at 580. We emphasized that the officer

did not parrot the legal standard. Heatley, 70 Wn. App. at 581. Furthermore, in

Quaale, the court distinguished Heatley because “[u]nlike the officer in Heatley,

Trooper Stone based his opinion on expert and not lay testimony, and in doing

so, he gave impermissible opinion testimony that constituted an improper opinion

on guilt.” 182 Wn.2d at 201. The same is true here. Thus, Heatley is

distinguishable and not persuasive.

                                    Harmless Error

       The City claims that even if the trial court erred by admitting Officer

Hinson’s testimony, the error was harmless, and therefore, the superior court

erred in reversing Levesque’s conviction. We disagree.

       Because Officer Hinson’s testimony invaded the province of the jury to

determine Levesque’s guilt and thus violated his constitutional right to a fair trial,

“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. 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; Nederv. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144



                                               24
No. 78304-1 -1/25

L. Ed. 2d 35(1999).

        For the following reasons, we conclude that the City has not established

that any reasonable jury would have convicted Levesque. First, “[a]n officer’s live

testimony offered during trial, like a prosecutor’s statements made 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, 763 (second

alteration in original) (internal quotation marks omitted) (quoting United States v.

Espinosa, 827 F.2d 604, 613 (9th Cir. 1987)). Officer Hinson was the arresting

officer, and he expressed certainty as to his conclusion of Levesque’s impairment

by drugs. Moreover, the City bolstered Officer Hinson’s testimony with evidence

of his experience and training, portraying particular reliability. Additionally,

Officer Hinson testified first, thus framing all other evidence considered by the

jury.

        Second, the jury could have reached another rational conclusion.

Specifically, Levesque’s physician, Dr. Mayer, testified that shock can result in

symptoms including “[110w blood pressure, rapid heart rate, fear, [and] sweating.”

Additionally, prior to the accident, Dr. Mayer treated Levesque for neurosyphilis

and injuries resulting from earlier car accidents. She testified that neurosyphilis

can cause “blurry vision.” And Dr. Mayer noticed Levesque did have some word

finding difficulties. She also diagnosed Levesque with postconcussion

syndrome—which can cause memory loss and speech problems—and

prescribed amitriptyline, a medication for postconcussion syndrome.

Amitriptyline can cause grogginess and mental fogging, and can make an



                                          25
No. 78304-1-1/26

individual drowsy. Dr. Mayer also testified that Levesque has a history of

neurosyphilis, which may cause blurry vision and loss of motor functions. In

short, Dr. Mayer’s testimony may have persuaded the jury that there was another

explanation for Levesque’s behavior and that his ability to drive was not lessened

to an appreciable degree by the drugs in his system.6

       The additional testimonies of Gingras, Captain Franks, and Officer Coe do

not establish beyond a reasonable doubt that any reasonable jury would have

convicted Levesque. Captain Franks testified that Levesque’s heart rate was up,

he had an altered state of consciousness, and his conversational and motor skills

were impaired. Captain Franks also testified that Levesque “‘show[ed] behavior

consistent with recreational drug use.” But Captain Franks did not claim

Levesque was affected by or, more specifically, impaired by drugs or what

category of drug. Officer Coe testified that Levesque was shaky and sweaty, and

that sweating indicates the potential for stimulant consumption. Gingras testified

regarding the accuracy of the lab report and that the levels of methamphetamine

and amphetamine in Levesque’s system were higher than therapeutic levels.

However, even Gingras could not determine whether the level of

methamphetamine in Levesque’s blood impaired him. Specifically, during closing

arguments, the City noted that Gingras testified that “he can’t say whether

someone was impaired at .55” mg/L of methamphetamine in their system.

      The City contends that Officer Hinson’s statements are similar to those

      6  Indeed, had the DRE protocol been performed, the DRE may have been
able to rule out other medical conditions. See Baity, 140 Wn.2d at 6 (“In theory,
the DRE protocol enables the DRE to rule in (or out) many medical conditions,
such as illness or injury, contributing to the impairment.”).

                                        26
No. 78304-1-1/27

admitted in State v. Smith, 67 Wn. App. 838, 841 P.2d 76 (1992). In Smith, the

trial court erroneously admitted without correction statements regarding a

testifying officer’s awards and commendations. 67 Wn. App. at 840, 845. We

concluded that the State used the testimony to “improperly elevate [the officer’s]

character” but that the error was harmless. Smith, 67 Wn. App. at 845. Here,

Officer Hinson made a statement that directly implicated Levesque’s guilt; the

statement did not merely bolster his testimony. Thus, Smith is distinguishable.

      For these reasons, the City cannot establish beyond a reasonable doubt

that any reasonable jury would have found Levesque guilty absent Officer

Hinson’s testimony. Therefore, the error was not harmless.

      We affirm.




WE CONCUR:




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