          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



CITY OF SEATTLE,                                  NO. 72230-1-1
                                                                                         ro
                                                                                         V.3
                     Respondent,
                                                  DIVISION ONE
                     v.                                                                  CD    o'--J


                                                                                         ro
TAMISHA PEARSON,                                  PUBLISHED OPINION

                     Appellant.                   FILED: February 29, 2016



       Lau, J. —Tamisha Pearson appeals her conviction on one count of driving under

the influence of marijuana. She contends the trial court erred when it admitted the

results of a warrantless blood test on grounds the dissipating tetrahydrocannabinol

(THC) concentration in her bloodstream constituted an exigency sufficient to forgo the

warrant requirement. She also argues the trial court erroneously permitted testimony of

a per se legal limit of THC concentration not in effect at the time of the alleged offense.

She also claims the trial court abused its discretion when it rejected a proposed jury

instruction stating that it is not unlawful to drive after consuming drugs.
No. 72230-1-1/2



       We conclude the trial court committed prejudicial error when it admitted the blood

test result and allowed the City to present evidence of the per se legal THC limit not in

effect at the time of the offense. We also conclude the trial court properly refused to

give Pearson's proposed jury instruction where other instructions allowed her to argue

her theory to the jury. Accordingly, we reverse and remand for further proceedings

consistent with this opinion.


                                          FACTS

       The Pedestrian-vehicle Accident

       Tamisha Pearson suffers from a variety of health conditions for which she is

authorized to consume medicinal marijuana. On February 3, 2012, at 3:23 pm, Pearson

struck a pedestrian with her car. Pearson pulled over and called 911. Seattle Police

Officers Victor Pirak and Michael Jongma arrived at 4:06 pm. Officer Jongma is a drug

recognition expert. Pearson initially denied consuming any drugs or alcohol that day.

She agreed to perform field sobriety tests.

       Officer Jongma testified that Pearson's behavior during the sobriety tests

suggested impairment. First, she recited the alphabet "at an unsteady rate," omitting

some letters. Clerk's Papers (CP) at 411. When Officer Jongma asked Pearson to

count backwards from 53 to 36, Pearson counted from 53 to 50 and then asked him to

repeat the instructions. She counted from 53 to 47, repeated 47, counted down to 37,

and asked if that was where she was supposed to stop. Officer Jongma tested

Pearson's eyesight and noted a lack of convergence. Officer Jongma asked Pearson to

close her eyes, tilt her head back, and estimate when 30 seconds had passed. Pearson


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No. 72230-1-1/3



lowered her head, opened her eyes, and said "stop" after approximately 14 seconds.

CP at 413-14. Pearson's performance of the walk-and-turn test varied slightly from

Officer Jongma's instructions.1 When Officer Jongma asked Pearson to stand on one

leg, she stood for approximately 21 seconds before she swayed and put her foot down.

She lasted 16 seconds on her other foot. Pearson successfully complied with a finger-

to-nose test. Officer Jongma administered a breathalyzer test, which indicated no

alcohol present. Officer Jongma concluded some of Pearson's behavior during the

sobriety tests indicated she was impaired. Pearson told Officer Jongma that she is

authorized to consume medicinal marijuana and that she had smoked earlier in the

day.2 Officer Jongma arrested Pearson for suspicion of vehicular assault and driving

under the influence.3

      Officer Jongma transported Pearson to Harborview Medical Center for a blood

draw. They arrived at the hospital at approximately 5:26 pm—2 hours after the initial

collision and 1 hour and 20 minutes after Officer Jongma arrived on the scene. At

approximately 5:50 pm, a nurse drew Pearson's blood without her consent and without

a warrant. A toxicologist analyzed Pearson's blood sample for cannabinoids on

       1"She did not put her arms down at her sides as instructed but kept them in her
pockets of her jacket. On step two on the way out, she stopped and left a gap of
approximately two inches from heel to toe, stopped and readjusted her footing prior to
continuing. And during the turn she stopped. Instead of turning around with small steps
counterclockwise, she did it in a modified two-step about-face clockwise." CP at 415.
The City attorney stated that Officer Jongma was being "kind of picky on [the]
instructions," but Officer Jongma responded that these were "validated tests" intended
to "gauge a person's ability to perform ... psychophysical tasks." CP at 415-16.
       2 At the CrR 3.6 suppression hearing, Officer Jongma testified that Pearson
admitted to smoking "earlier in the day." CP at 204. During the trial, however, Officer
Jongma testified that Pearson told him she had smoked at 8:30 or 9:00 am.
       3 Pearson was arrested for suspicion of both DUI and vehicular assault, but she
was never charged with vehicular assault.
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No. 72230-1-1/4



February 21, 2012. The analysis determined Pearson's THC concentration was

approximately 20 nanograms.

       On August 18, 2012, the City of Seattle charged Pearson in municipal court on

one count of driving while under the influence of an intoxicating drug.4 The court initially

granted Pearson's motion to suppress the blood evidence.

       Suppression Hearing

       The court held an evidentiary hearing after the City filed a motion to reconsider.

At the hearing, the City introduced testimony from forensic toxicologist Naziha

Nuwayhid of the Washington State Toxicology Laboratory. Nuwayhid testified that THC

dissipates from blood very quickly. "[Wjhenever somebody smokes marijuana, the THC

level [in their blood] reaches its peak before the end of smoking. And by three to five

hours, the THC level is below the detection limit of the lab." CP at 186. However,

Nuwayhid also acknowledged that THC can be detected in the blood of a chronic user

of marijuana for up to seven days, even if that user abstains from smoking marijuana.

       The City also introduced testimony from Seattle Police Officer Eric MichI. Officer

MichI testified that obtaining a warrant for blood test in a DUI scenario—usually done via

e-mail—takes about an hour to an hour and a half. Officer MichI acknowledged that a

telephonic warrant could be obtained. He did not specify how long that process took.

After the evidentiary hearing, the court granted the City's motion for reconsideration,

finding that exigent circumstances existed justifying the warrantless blood test.

       4 At the time of the offense, there was no per se legal limit for THC concentration
in the blood. Thus, the City prosecuted Pearson under the "under the influence of or
affected by a drug" prong of the DUI statute. The jury was instructed that the City must
prove beyond a reasonable doubt that Pearson drove a vehicle on February 3, 2012,
while "under the influence of or affected by drugs." CP at 49.
No. 72230-1-1/5



      The Per Se Legal Limit

      At trial, the City introduced testimony of forensic toxicologist Justin Knoy of the

Washington State Toxicology Laboratory. Over Pearson's objection, the City elicited

testimony from Knoy that the per se legal limit of THC concentration under Washington

law was 5 nanograms. No per se limit for THC concentration in Washington existed

when the accident occurred.

      The Jury Instruction

      The trial court rejected Pearson's proposed jury instruction:

             It is not unlawful for a person to consume a drug and drive. The
      law recognizes that a person may have consumed a drug and yet not be
      under the influence of it. It is not enough to prove merely that a driver had
      consumed a drug.

CP at 39.

       Discretionary Review

      The jury convicted Pearson as charged. The superior court on RALJ appeal

affirmed the conviction.5

       Pearson sought discretionary review in this court on four issues: (1) whether

exigent circumstances existed to justify the warrantless extraction of Pearson's blood,

(2) whether exigent circumstances existed to justify the warrantless testing of Pearson's

blood, (3) whether the trial court erred when it failed to include Pearson's proposed jury

instruction, and (4) whether the trial court erred when it permitted Knoy to testify that the

per se legal limit for THC concentration was 5 nanograms. We granted discretionary

review.




       5 Rules for Appeal of Decisions of Courts of Limited Jurisdiction.
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No. 72230-1-1/6



                                       ANALYSIS

      The Warrantless Blood Test


      The City argues that the natural dissipation of THC concentration in Pearson's

blood constituted exigent circumstances justifying the warrantless blood test. We

disagree.

      Both the federal and Washington constitutions protect individuals from

unreasonable searches. The State's intrusion into a person's body to draw blood

constitutes a search triggering these constitutional protections. See Missouri v.

McNeelv. 133 S. Ct. 1552, 1558,185 L Ed. 2d 696 (2013); see ajso, State v. Judge.

100 Wn.2d 706, 711-12, 675 P.2d 219 (1984). Absent a recognized exception, a

warrantless blood draw is unlawful. McNeelv.       133      , S. Ct. at 1558. One such

exception allows a warrantless search if exigent circumstances exist. State v.

Terranova. 105 Wn.2d 632, 644, 716 P.2d 295 (1986). The exception applies where

"obtaining a warrant is not practical because the delay inherent in securing a warrant

would compromise officer safety, facilitate escape or permit the destruction of

evidence." State v. Tibbies. 169 Wn.2d 364, 370, 236 P.3d 885 (2010) (quoting State v.

Smith. 165 Wn.2d 511, 517, 199 P.3d 386 (2009)). The natural dissipation of an

intoxicating substance in a suspect's blood may be a factor in determining whether

exigent circumstances justify a warrantless blood search. McNeelv. 133 S. Ct. at 1558.

But "[a]ny exceptions to the warrant requirement are to be drawn carefully and

interpreted jealously, with the burden placed on the party asserting the exception."

State v. Grinier. 34 Wn. App. 164, 168, 659 P.2d 550 (1983). Accordingly, the State

bears the burden of demonstrating by clear and convincing evidence that exigent

                                         -6-
No. 72230-1-1/7



circumstances justified a warrantless search. State v. Garvin. 166 Wn.2d 242, 250, 207

P.3d 1266 (2009). Whether exigent circumstances exist to justify a warrantless blood

test is a legal question we review de novo. State v. Martines. 184 Wn.2d 83, 90, 355

P.3d 1111 (2015). We determine whether an exigency existed based on the totality of

the circumstances. McNeelv. 133 S. Ct. at 1559.6

       In McNeelv. the State acknowledged that the reasonableness of a warrantless

search under the exigency exception must be evaluated based on the totality of the

circumstances. The State maintained that a per se rule for blood testing in drunk driving

cases is necessary because alcohol naturally dissipates. The State asserted that as a

result, it is categorically reasonable for police officers to obtain a warrantless blood

sample. The Court held that the natural dissipation of alcohol in the bloodstream is a

relevant consideration in an exigent circumstances analysis, but it is not a per se

exigent circumstance that justifies an exception to the Fourth Amendment's warrant

requirement for nonconsensual blood draws in drunk-driving cases. McNeelv. 133 S.

Ct. at 1568. The Court noted that technological advances had expedited the warrant

application process. McNeelv. 133 S. Ct. at 1562. Jurisdictions have developed

streamlined means to shorten up the warrant process such as standard form warrants.

But the Court also acknowledged that, in some cases, dissipation may nevertheless

support an exigency. McNeelv. 133 S. Ct. at 1561 ("We do not doubt that some

circumstances will make obtaining a warrant impractical such that the dissipation of

alcohol from the bloodstream will support an exigency justifying a properly conducted

      6Here, the parties seem to agree on the facts. Therefore, the only issue we need
to address is whether the undisputed facts amount to exigent circumstances sufficient to
bypass the warrant requirement.
                                           -7-
No. 72230-1-1/8



warrantless blood test."). For example, "exigent circumstances justifying a warrantless

blood sample may arise in the regular course of law enforcement due to delays from the

warrant application process." McNeelv. 133 S. Ct. at 1563.

      Absent other extenuating circumstances, the natural dissipation of THC in a

suspect's bloodstream will constitute an exigency sufficient to forgo the warrant

requirement only if the party seeking to introduce evidence of a warrantless blood test

can show that waiting to obtain a warrant would result in losing evidence of the

defendant's intoxication. See, e.g.. Bvars v. State. 130 Nev. Adv. Op. 85, 336 P.3d 939

(2014). In Bvars. a police officer took the defendant to a hospital for a warrantless

blood test after the defendant admitted to smoking marijuana five hours earlier. Bvars.

336 P.3d at 942-43. The State argued that blood evidence was admissible because the

natural dissipation of THC concentration in the defendant's bloodstream constituted

exigent circumstances justifying the search. Bvars. 336 P.3d at 942-44. Citing

extensively to McNeelv. the court held that the exigent circumstances exception did not

apply because the State failed to "demonstrate that waiting for a warrant would result in

losing evidence of Byar's intoxication." Bvars. 336 P.3d at 944. The court noted the

availability of a telephonic warrant and the process of obtaining a warrant would not

have seriously delayed collecting the blood evidence:

       [T]he facts in the record suggest that time was not a factor in the officer's
       decision to take Byar's blood without a warrant.... There is no indication
       in the record that Trooper Murwin was prevented from seeking a warrant
       telephonically or that time was of the essence in securing the blood.
       There is also no indication in the record that the length of the warrant
       process would endanger the evidence Trooper Murwin sought to collect.

Bvars. 336 P.3d at 944.



                                          -8-
No. 72230-1-1/9



      Bvars' analysis is persuasive, and consistent with Washington authority. See

State v. Hinshaw. 149 Wn. App. 747, 205 P.3d 178 (2009). In Hinshaw—decided

before McNeelv—officers entered the defendant's home without a warrant because of

concern over the dissipation of his blood-alcohol concentration. Hinshaw. 149 Wn. App.

at 751. As in Bvars. the Hinshaw court concluded the State failed to show sufficient

exigent circumstances because it failed to prove that a warrant could not be obtained

before the evidence dissipated:

             "[T]he [S]tate failed to prove that a warrant, including a telephonic
      warrant, could not have been obtained within a reasonable time."...
      "[T]he potential destruction of evidence may justify a warrantless entry into
      a suspect's home 'if the state proves that the arresting officers could not
      have obtained a warrant before the alcohol in the suspect's body
      dissipated.'" fState v. Kruse, 220 Or. App. 38, 42, 184 P.3d 1182 (2008)]
      (quoting State v. Roberts. 75 Or. App. 292, 296, 706, P.2d 564 (1985)).

             This is precisely what the State failed to prove here—that a warrant
      could not be obtained before the evidence dissipated.

Hinshaw. 149 Wn. App. at 756. Therefore, "there is no justification for applying the

exigent circumstances exception when 'officers can reasonably obtain a warrant before

a blood sample can be drawn without significantly undermining the efficacy of the

search.'" Bvars. 336 P.3d at 944 (quoting McNeelv. 133 S. Ct. at 1561).

       Here, the City argues that seeking a warrant would have imposed an

unreasonable delay in collecting the blood sample. The undisputed evidence shows the

accident occurred at 3:23 pm, and Officer Jongma arrived at 4:06 pm. Pearson told

Officer Jongma that she smoked marijuana earlier in the day. He transported Pearson

to the hospital at 4:57 pm. A nurse drew Pearson's blood around 5:50 pm. Officer

MichI testified that obtaining a warrant usually takes between 60 to 90 minutes, but it


                                          -9-
No. 72230-1-1/10



can take longer. He also said under the best circumstances, it can take an hour. He

described the availability of municipal court, district court, and superior court judges to

review and sign warrants. He also explained warrants can be secured via telephone.

       Officer Jongma obtained a blood sample approximately 2.5 hours after the

accident. Nuwayhid testified that "by three to five hours [after smoking marijuana], the

THC level is below the detection limit of the lab." CP at 186. Given this window, the

City argues that evidence of THC could have dissipated completely by the time

Pearson's blood was drawn had Officer Jongma obtained a warrant.

       The City failed to satisfy its heavy burden to show by clear and convincing

evidence that a warrant could not have been obtained in a reasonable time. The City

presented no evidence at the suppression hearing indicating why officers did not seek

to obtain a warrant. Considering the totality of the circumstances, the record shows that

obtaining a warrant would not have created a significant delay in collecting a blood

sample.

       Although both the City and the trial court relied heavily on the toxicologist's

testimony that THC concentration dissipates completely in three to five hours, the

toxicologist qualified this opinion. The toxicologist acknowledged other factors could

affect dissipation. Nuwayhid testified that it could take longer for THC to dissipate

depending on the dose: "what is found in the blood ... depends on the dose that the

person smokes. So the larger the amount which is smoked or the more potent the joint

or blend is, the longer it takes for the THC level to go beyond the detection limit." CP at

195. The toxicologist also testified that she was aware of studies showing a test could

detect THC in the blood of a chronic cannabis user even several days after that person

                                           -10-
No. 72230-1-1/11



smoked marijuana. In this case, the undisputed evidence shows that Pearson

consumes cannabis medicinally to treat symptoms of chronic illness.

       But even accepting the three to five hour dissipation window, the record shows

that another officer could have transported Pearson to the hospital while Officer Jongma

obtained a warrant, thereby minimizing or eliminating any delay. In McNeelv. the Court

observed that the presence of other officers weighs against the conclusion that exigent
circumstances existed:


              Consider, for example, a situation in which the warrant process will
       not significantly increase the delay before the blood test is conducted
       because an officer can take steps to secure a warrant while the suspect is
       being transported to a medical facility by another officer. In such a
       circumstance, there would be no plausible justification for an exception to
       the warrant requirement.

McNeelv. 133 S. Ct. at 1561. Here, Officer Jongma testified that besides himself, there

were eight other officers at the scene of the accident. Officer Jongma transported

Pearson from the scene at 4:57 pm to collect a blood sample, and a nurse drew

Pearson's blood nearly an hour later at 5:50 pm. Officer MichI testified that obtaining a

warrant via e-mail typically took between 60 and 90 minutes. He also testified that a

telephonic warrant was available. The accident happened on Friday afternoon, in

Seattle on Rainier Avenue in a commercial area on a heavily travelled road. Under

these circumstances, another officer could have transported Pearson to the hospital to

collect a blood sample while Officer Jongma obtained a warrant. The delay—if any—

would have been minimal. Given the City's heavy burden to justify the warrantless

search, the City has failed to show that "the warrant process [would] significantly

increase the delay before the blood test [was] conducted." McNeelv. 133 S. Ct. at 1561.


                                          -11-
No. 72230-1-1/12



      Because the City failed to show by clear and convincing evidence that obtaining

a warrant would have significantly delayed collecting a blood sample, the natural

dissipation of THC in Pearson's bloodstream alone did not constitute an exigency

sufficient to bypass the warrant requirement. As in McNeelv. we hold that the natural

dissipation of THC from the bloodstream is a relevant consideration in an exigent

circumstances analysis but is not a per se exigent circumstance that justifies an

exception to the warrant requirement for nonconsensual blood draws in DUI cases.

Accordingly, we conclude that the warrantless blood draw here was not justified under

the exigent circumstances exception to the warrant requirement.7

       Testimony of Per Se Legal THC Limit

       Pearson also contends the trial court erred when it admitted evidence of the per

se legal THC limit that went into effect after the alleged crime on grounds that defense

counsel opened the door. We review evidentiary decisions for an abuse of discretion.

State v. Johnson. 150 Wn. App. 663, 673, 208 P.3d 1265 (2009). "Discretion is abused

when the trial court's decision is manifestly unreasonable, or is exercised on untenable

grounds, or for untenable reasons." State v. Blackwell. 120Wn.2d 822, 830, 845 P.2d
1017(1993). Improper admission of evidence constitutes harmless error if the evidence

is of minor significance in reference to the evidence as a whole. State v. Neal. 144

Wn.2d 600, 30 P.3d 1255 (2001) (citation omitted). Evidentiary error is grounds for

reversal only if it results in prejudice. State v. Bourgeois. 133 Wn.2d 389, 403, 945 P.2d
1120 (1997). An error is prejudicial if "within reasonable probabilities, had the error not

       7 Given our resolution of the warrantless blood test evidence, we need not
address Pearson's additional argument that the analysis of her blood constituted a
second "search" for purposes of the federal and Washington constitutions.
                                          -12-
No. 72230-1-1/13



occurred, the outcome of the trial would have been materially affected." Smith. 106

Wn.2d at 780.

      When the offense occurred in February 2012, no per se legal limit to the

concentration of THC in the bloodstream existed. Pearson's trial occurred in July and

August of 2013. By that time, Washington voters had passed initiative measure 502,

which legalized possession of small amounts of marijuana. The same initiative also

established a per se legal THC limit, making it a crime to drive with a blood THC

concentration exceeding 5 nanograms. RCW 46.61.502(1 )(b). Defense counsel

elicited testimony that in February 2012 there was no per se legal limit to THC

concentration. The trial court ruled that this evidence opened the door for the City to

explore the issue, and the City elicited testimony that 5 nanograms was the legal limit:

              [THE CITY]: Do we currently have a limit on marijuana under the law?

                [WITNESS]: Yes. There is now currently a per se level with THC.

              [THE CITY]: What's that limit now?

                             DEFENSE COUNSEL: Your Honor, I'm going to object as

                             to—


                             THE COURT:             Overruled.

                             DEFENSE COUNSEL: —the amount—


                             THE WITNESS:           5 nanograms per milliliter.

              [THE CITY]: So that 5 nanograms—the defense was talking about the
                    per se limit for alcohol, at 5 nanograms would be similar to the per
                      se limit in alcohol.

                [WITNESS]:    From a legal standpoint, yes.

CP at 585-86.


                                             -13-
No. 72230-1-1/14



       The trial court abused its discretion when it admitted this testimony. Evidence of

the per se legal THC limit not in effect when the offense occurred was irrelevant to the

central question at trial—whether Pearson's ability to drive was lessened in any

appreciable degree by her use of marijuana. The evidence was highly prejudicial. The

blood test showed that Pearson had a THC concentration of 20 nanograms. The City

relied on the blood evidence and emphasized in its closing argument that Pearson's

THC concentration was 20 nanograms. Evidence of the current per se legal THC limit

of 5 nanograms invited the jury to retroactively apply law that was not in effect at the

time of the alleged offense and conclude that the blood evidence alone was sufficient to

prove guilt.8 See State v. Edwards. 104 Wn.2d 63, 70-71, 701 P.2d 508 (1985)

(Retroactively applying law not enacted at the time of the offense violates constitutional

ex post facto principles).

       The City defends the trial court's ruling, arguing Pearson "opened the door" to

this testimony. See State v. Gefeller. 76 Wn.2d 449, 455, 458 P.2d 17 (1969): see also.

State v. Fisher. 165 Wn.2d 727, 750, 202 P.3d 937 (2009) ("Where the defendant

'opened the door' to a particular subject, the State may pursue the subject to clarify a

false impression."). The problem with this assertion is Pearson created no false or

misleading impression when she elicited evidence about the lack of any per se THC

limit in February 2012. The Gefeller rule's purpose is to prevent a party from

mischaracterizing evidence by only revealing advantageous details of a particular

subject. See Gefeller. 76 Wn.2d at 455. Pearson presented no false or misleading



        8 The jury was never cautioned about the limitations of this evidence. Indeed, the
jury instructions told the jury to decide the facts based on the evidence.
                                          -14-
No. 72230-1-1/15



evidence to justify admission of highly prejudicial evidence of the current per se legal

limit of 5 nanograms. This evidence was not relevant to any issue in the trial and did

not explain, clarify, or rebut Pearson's evidence that no per se legal limit was in effect at

the time of the offense.9

       We will not reverse an erroneous evidentiary ruling unless it materially affected

the outcome of the trial. See State v. Googin. 185 Wn. App. 59, 69, 339 P.3d 983

(2014). The City contends any error was harmless because of the other evidence of

impairment presented at trial. But the blood evidence was central to the City's case. As

discussed above, the prosecutor repeatedly mentioned Pearson's THC concentration

level in closing argument. By also analogizing the current per se THC limit to the limit

for blood alcohol concentration, the City invited the jury to base its verdict solely on

Pearson's THC concentration. Evidence that Pearson had a THC concentration of 20

nanograms would be meaningless to the jury without reference to the per se legal limit.

       The competing evidence of the marijuana's effect on Pearson's ability to drive

was hotly contested at trial. For instance, to explain Pearson's alleged poor

performance on the physical tests, the defense medical expert explained that Pearson

suffered from lupus and fibromyalgia. These conditions may affect motor skills, such as

balance.


       Pearson also presented evidence from eye witnesses to the accident that raised

questions on whether Pearson or the pedestrian was at fault for the collision. The core

issue was whether Pearson's ability to drive was lessened to any appreciable degree by

       9 The trial court's "open door" ruling is also questionable because the court
overruled the City's objection to Pearson's evidence that no per se legal limit was in
effect at the time of the offense.

                                           -15-
No. 72230-1-1/16



marijuana. Given the highly contested evidence presented, the jury could have inferred

from the improper evidence that Pearson's driving was affected by the marijuana

because her blood test result showed four times the per se legal limit in her blood. We

are not confident that the outcome of the trial would have been the same without the

current per se legal THC limit evidence.

       The Jury Instruction

       We next address whether the trial court erred when it rejected Pearson's

proposed jury instruction. We review a trial court's rejection of a party's jury instruction

for an abuse of discretion. State v. Pesta. 87 Wn. App. 515, 524, 942 P.2d 1013

(1997).10 Although the proposed instruction here was an accurate statement of the law,

the trial court did not abuse its discretion when it rejected the instruction because

Pearson was able to argue her theory of the case without it.

       While each party is entitled to have their theory of the case set forth in the court's

instructions, the court nevertheless has considerable discretion in determining the

wording of the instructions and which instructions to include. State v. Dana. 73 Wn.2d

533, 536, 439 P.2d 403 (1968). Jury instructions are sufficient if they permit the parties

to argue their theories of the case, do not mislead the jury, and properly inform the jury

of the applicable law. State v. Winings. 126 Wn. App. 75, 86,107 P.3d 141 (2005).

       Pearson proposed, and the trial court rejected, a jury instruction providing:




       10 Pearson incorrectly asserts that review is de novo. But de novo review only
applies to included instructions that allegedly contain an error of law. State v. Winings.
126 Wn. App. 75, 86, 107 P.3d 141 (2005). A trial court's decision not to include an
instruction is reviewed for an abuse of discretion. State v. Picard. 90 Wn. App. 890,
902, 954 P.2d 336 (1998).
                                           -16-
No. 72230-1-1/17



              It is not unlawful for a person to consume a drug and drive. The
       law recognizes that a person may have consumed a drug and yet not be
       under the influence of it. It is not enough to prove merely that a driver had
       consumed a drug.

CP at 39. This instruction is an accurate statement of the law. The Washington Pattern

Jury Instructions include a similar instruction:

              [It is not unlawful for a person to consume [intoxicating liquor] [or]
       [marijuana] [or] [drugs] and drive a motor vehicle.] The law recognizes that
       a person may have consumed [intoxicating liquor] [or marijuana] [or]
       [drugs] and yet not be under the influence of it.

WPIC 92.10. The instruction derives from State v. Hurd. 5 Wn.2d 308, 316, 105 P.2d

59 (1940), State v. Hansen. 15 Wn. App. 95, 97, 546 P.2d 1242 (1976), and State v.

Franco. 96 Wn.2d 816, 825, 639 P.2d 1320 (1982). Pearson relied on Hurd. Hansen.

and Franco when she proposed the instruction.11

       But the trial court is not required to include an instruction even if that instruction is

legally accurate. State v. Hathaway. 161 Wn. App. 634, 647, 251 P.3d 253 (2011) ("it is

not error for a trial court to refuse a specific instruction when a more general instruction

adequately explains the law and allows each party to argue its case theory."); see also

In re Pers. Restraint of Domingo. 155 Wn.2d 356, 369,119 P.3d 816 (2005) (Pattern

jury instructions are not mandatory). The instructions here sufficiently informed the jury

of the applicable law and allowed Pearson to argue her theory of the case. Jury

instruction 5 provided:

              To convict Tamisha Pearson of the crime of driving while under the
       influence, each of the following elements of the crime must be proved beyond a
       reasonable doubt:


       11 The record shows that the trial court refused the instruction because these
three cases involved alcohol, not marijuana, and the trial court believed they were not
analogous to this case.
                                            -17-
No. 72230-1-1/18




                    (1) That on the 3rd day of February, 2012, Tamisha Pearson drove
                       a motor vehicle;

                    (2) That at that time Tamisha Pearson was under the influence of or
                        affected by a drug;

                    (3) That the acts occurred in Seattle, Washington.

              If you find from the evidence that elements (1), (2), and (3) have been
      proven beyond a reasonable doubt, then it will be your duty to return a verdict of
      guilty.
              On the other hand, if after weighing all the evidence, you have a
      reasonable doubt as to any of these elements, then it will be your duty to return a
      verdict of not guilty.

CP at 49. Jury instruction 6 provided:

             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.

CP at 50.

      Pearson proposed her instruction because she wanted to argue that it "is not

unlawful for a person to consume a drug and drive." CP at 39. But jury instruction 6

allowed her to make that argument. Under jury instruction 6, Pearson could argue that

even though she had consumed marijuana, she was not guilty because her ability to

drive was not "lessened in any appreciable degree." CP at 50. Pearson's closing

argument shows she made that argument. During closing argument, Pearson

acknowledged she had admitted to smoking marijuana and the blood test showed THC

was in her system. But she contended that this evidence does not necessarily mean

she was impaired: "[y]ou may have a number which lists the amount of active THC and

it doesn't really mean anything. Why is that? Well,... what's really of consequence is

how the person drove, how they interacted with the police officer, and how they did in

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the field tests." CP at 710; see also CP at 711 ("The set science ... there's no set

agreement on what level a person is presumed impaired."). Under these

circumstances, the trial did not abuse its discretion when it refused to include Pearson's

proposed jury instruction because she was able to argue her theory of the case based

on the instructions given.

                                     CONCLUSION

       For the reasons discussed above, we reverse and remand for further

proceedings consistent with this opinion.




WE CONCUR:




    l/'ick^ J^




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