                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        October 15, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 CITY OF VANCOUVER,                                                 No. 51202-5-II

                               Respondent,

        v.

 MELISSA NICOLE KAUFMAN,                                        PUBLISHED OPINION

                               Appellant.

       CRUSER, J. — Melissa Kaufman was granted discretionary review of her municipal court

conviction for driving under the influence (DUI). She argues that the trial court erred by admitting

evidence of her refusal to submit to a preliminary breath test (PBT) and improper opinion

testimony by a police officer. We agree and hold that the trial court erred in admitting evidence

of Kaufman’s refusal to submit to a PBT. We also accept the City of Vancouver’s concession that

the trial court erred in admitting improper opinion testimony, but hold that the City cannot prove

beyond a reasonable doubt that the error was harmless. Accordingly we reverse and remand for

further proceedings.

                                              FACTS

       At approximately 6:45 AM on March 11, 2016, Officer Keith Tyler of the Vancouver Police

Department was patrolling within the city limits of Vancouver, Washington. Tyler observed

Kaufman driving past his patrol car in an adjacent lane. Tyler visually approximated that Kaufman

was driving between 25 and 28 miles per hour; the speed limit in that location was 20 miles per
No. 51202-5-II


hour. Tyler turned his “warning” lights on, and Kaufman slowed her vehicle down. Tyler then

observed Kaufman move her vehicle into a turn lane without using her turn signal for at least 100

feet before she made the turn. Tyler contacted Kaufman and asked for her license, registration,

and proof of insurance. Tyler did not smell an odor of intoxicants on Kaufman at this time.

         When Tyler ran the registration of Kaufman’s vehicle, he found that Kaufman had an

outstanding misdemeanor warrant. Tyler returned to Kaufman’s vehicle and arrested her on the

warrant. The first time Tyler noticed an odor of intoxicants on Kaufman was when he placed her

in handcuffs. Kaufman was upset and crying at that point. Tyler also noticed that her eyes were

“a little bloodshot” and her eyelids were “a little droopy.” Clerk’s Papers (CP) at 214. Tyler

decided he would begin a DUI investigation once they arrived at the jail.

         At the jail, Tyler offered to administer a PBT, which is a test he uses “to establish probable

cause.” Id. at 215. Kaufman refused to take the test. Tyler then asked Kaufman if she would be

willing to take a series of voluntary standardized field sobriety tests (FSTs), and she refused. Tyler

read Kaufman her Miranda1 rights and prepared a “Pre-arrest Observations” report. CP at 220.

Tyler reported that Kaufman’s eyes were “watery and bloodshot,” her speech was a little slow but

“fair,” her face was “flushed,” her coordination was “fair,” she displayed mood swings, and her

level of impairment was “slight.” Id. at 220-21. Tyler then read Kaufman the implied consent

warning for breath and asked Kaufman if she would submit to a Datamaster breath test. Kaufman

refused.




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

                                                   2
No. 51202-5-II


       The City charged Kaufman with DUI.2 Kaufman’s case proceeded to trial in Vancouver

Municipal Court. Kaufman brought a pretrial motion to exclude evidence of her refusal to submit

to the PBT and the FST but the court ruled this evidence was admissible.3

       At trial, Tyler confirmed that Kaufman was not arrested for DUI. During an offer of proof

made outside the presence of the jury, Tyler admitted that he did not have probable cause to believe

Kaufman had driven under the influence of intoxicants at the time of her arrest on the unrelated

warrant. Tyler also admitted that he had to make a decision “with very little information” because

his observations at the scene were insufficient to support probable cause and Kaufman refused to

perform the tests normally administered during a DUI investigation. Id. at 249.

       Tyler testified that Kaufman refused to submit to either the PBT or the Datamaster breath

test or to perform FSTs. During cross-examination, Tyler was asked whether he gathered any

further evidence of Kaufman’s impairment at the jail, and he answered, “Any new no.” Id. at 251.

He said his investigation at the jail “reinforced” his observations about Kaufman’s odor of alcohol,

her bloodshot and watery eyes, and her flushed face. Id.

       On redirect examination, the City had the following exchange with Tyler:

       [Prosecutor]: Counsel asked you if you [gathered any new] evidence . . . once the
       defendant was at jail. Is it evidence if someone’s under the influence of alcohol if
       they refuse to do the field sobriety tests?
       [Defense Counsel]: Objection.
       [Court]: Overruled.



2
  Kaufman was also charged with and pleaded guilty to one count of operating a vehicle without
using ignition interlock device as required by RCW 46.20.740(2), but this conviction is not at issue
in this appeal.
3
  Although Kaufman objected to the admission of her refusal to perform FSTs, she does not raise
this issue on appeal.

                                                 3
No. 51202-5-II


       [Prosecutor]: So if you ask someone to do the field sobriety tests and they refuse
       to do that does that indicate . . . something to you?
       [Tyler]: Yes it usually shows me that they are under the influence because they
       don’t want the tests to fail.
       [Prosecutor]: Same thing you offered the defendant PBT to see if there was alcohol
       in her system, she refused that, what does that indicate to you?
       [Tyler]: That she didn’t want to take the tests because the result would show that
       she’s under the influence.
       [Prosecutor]: And last thing is you offered the defendant a chance to give a breath
       sample on the BAC Datamaster and she forego giving a sample knowing her license
       would be suspended?
       [Tyler]: Yes.
       [Prosecutor]: Is that further evidence to you that she was under the influence on
       that date?
       [Tyler]: It’s usually an indication yes.

Id. at 251-52.

       The City repeatedly commented on Kaufman’s refusal to submit to the PBT, FSTs, and the

Datamaster breath test in its opening statement and closing arguments. The City suggested that

Kaufman’s refusal to perform these tests was the primary evidence that Kaufman had driven under

the influence of intoxicants.

       The jury was given the following instructions related to DUI:

              A person commits the crime of driving under the influence when he or she
       drives a motor vehicle while he or she is under the influence of or affected by
       intoxicating liquor.

Id. at 89; 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

92.01, at 290 (4th ed. 2016) (WPIC).

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

CP at 91; WPIC 92.10, at 304.

                                                 4
No. 51202-5-II


       The jury found Kaufman guilty of DUI.4 Former RCW 46.61.502 (2013).

       Kaufman appealed her conviction to the superior court. The superior court affirmed,

holding that the PBT refusal evidence was properly admitted under State v. Baird, 187 Wn.2d 210,

386 P.3d 239 (2016), and State v. Mecham, 186 Wn.2d 128, 380 P.3d 414 (2016). The court also

held that Tyler’s opinion on the guilt of the defendant was improper under State v. Black, 109

Wn.2d 336, 745 P.2d 12 (1987), but concluded that the admission of the improper opinion

testimony was harmless beyond a reasonable doubt due to the overwhelming untainted evidence

of guilt. We granted discretionary review on the preceding issues.

                                           DISCUSSION

       Kaufman argues that the trial court committed reversible error by admitting evidence of

her refusal to take the PBT because she had a constitutional right to refuse to take this test and that

admission of her refusal to take the test violated the Fourth Amendment of the United States

Constitution and article I, section 7 of the Washington Constitution. Kaufman also argues that the

trial court erred when it allowed Officer Tyler to opine that Kaufman’s refusal to perform FSTs,

the PBT, and the Datamaster breath test demonstrated her consciousness of guilt. We agree on

both grounds.

                                      I. STANDARD OF REVIEW

       RALJ 9.1 governs a review of the district court’s decision, whether by us or by the superior

court. State v. McLean, 178 Wn. App. 236, 242, 313 P.3d 1181 (2013). The decision of the

superior court on appeal is subject to discretionary review. RALJ 9.1(h); RAP 2.3.



4
  The jury also returned a special verdict finding that Kaufman refused to submit to a breath test
that was requested by a law enforcement officer.

                                                  5
No. 51202-5-II


       “[I]f a trial error is of constitutional magnitude, prejudice is presumed and the State bears

the burden of proving it was harmless beyond a reasonable doubt.” State v. Coristine, 177 Wn.2d

370, 380, 300 P.3d 400 (2013). In evaluating whether a constitutional error is harmless, we use

the overwhelming untainted evidence test. State v. Watt, 160 Wn.2d 626, 635-36, 160 P.3d 640

(2007). We will find the error harmless only if we are satisfied beyond a reasonable doubt that the

untainted evidence presented to the jury is so overwhelming that it “necessarily leads to the same

outcome.” State v. Mayer, 184 Wn.2d 548, 566, 362 P.3d 745 (2015). In examining the evidence,

we look only to the untainted evidence to determine whether the untainted evidence is so

overwhelming that it necessarily leads to a finding of guilt. Watt, 160 Wn.2d 636; State v. Guloy,

104 Wn.2d 412, 426, 705 P.2d 1182 (1985).

                                   II. PBT REFUSAL EVIDENCE

       Kaufman argues that she had a constitutional right to refuse the PBT and that the trial court

violated the Fourth Amendment and article I section 7 in admitting evidence of her refusal to

submit to a PBT as evidence of guilt at trial. The City argues that Kaufman did not have a

constitutional right to refuse the PBT because it occurred “post-arrest” as a search incident to her

arrest, thus it was admissible evidence of guilt at trial. We agree with Kaufman.

A. LEGAL PRINCIPLES

       We review constitutional issues de novo. Mecham, 186 Wn.2d at 137. A breath test is a

search under the Fourth Amendment and under article I, section 7 of the Washington Constitution.

State v. Garcia-Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (2010). Generally, “[w]e presume

that a warrantless search violates these constitutional provisions,” and the State bears the burden




                                                 6
No. 51202-5-II


to prove that one of the narrowly drawn exceptions to the warrant requirement applies. Baird, 187

Wn.2d at 218.

         Significant to this case, when a person has a constitutional right to refuse a search,

admission at trial of the person’s refusal to submit to the search violates the Fourth Amendment

because it improperly penalizes the defendant for the lawful exercise of a constitutional right. State

v. Gauthier, 174 Wn. App. 257, 267, 298 P.3d 126 (2013). Thus, if Kaufman had a constitutional

right to refuse the search of her breath by use of a PBT because the test, if taken, would not have

fallen under any recognized exception to the warrant requirement, her refusal to take such a test

was inadmissible at trial.

         In Baird, our Supreme Court relied on the United States Supreme Court’s opinion in

Birchfield v. North Dakota, ___ U.S ___, 136 S. Ct. 2160, 2185, 195 L. Ed. 2d 560 (2016), to hold

that the Fourth Amendment permits evidentiary breath tests5 as a search incident to arrest for DUI.

Baird, 187 Wn.2d at 222. “Because a breath test is a permissible search incident to arrest, ‘the

Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and

[petitioner] had no right to refuse it.’” Id. (alteration in original) (quoting Birchfield, 136 S. Ct. at

2186).

         Thus, a driver does not have a constitutional right to refuse a breath test where either the

test or the request to an arrestee to submit to the test is authorized by a warrant or a recognized

exception to the warrant requirement, such as a search incident to arrest. Id. And in the




5
  The Baird court does not explicitly reference “evidentiary” breath tests, but its analysis pertains
to breath tests only under the implied consent statute, which are evidentiary breath tests. 187
Wn.2d at 219; former RCW 46.20.308(2) (2015).

                                                   7
No. 51202-5-II


circumstance where a driver lacks the constitutional right to refuse a breath test, Baird affirmed

the continued viability of our implied consent statute, which grants drivers a statutory right to

refuse to submit to a breath test and attaches penalties to the exercise of the statutory right to refuse

(such as use of a driver’s refusal at a subsequent trial). Id. at 223-28.

        A “breath test” under former RCW 46.20.308(2) (2015) includes an evidentiary breath test,

such as the Datamaster breath test, but it does not include a PBT.6 Former RCW 46.61.506 (2015).

The use of a PBT is governed exclusively by the Washington Administrative Code. Ch. 448-15

WAC. A PBT is voluntary, and “participation in it does not constitute compliance with the implied

consent statute (RCW 46.20.308).” Former WAC 448-15-020 (2015). A PBT may only be used

for establishing that a person has consumed alcohol and “establishing probable cause to place a

person under arrest for alcohol related offenses.” Former WAC 448-15-020(1).

B. KAUFMAN’S PBT REFUSAL WAS INADMISSIBLE

        Kaufman contends that she had a constitutional right to refuse the PBT and that admission

of her refusal to submit to the PBT, therefore, impermissibly penalized her exercise of her

constitutional right to refuse. As Kaufman correctly observes, Tyler’s request to Kaufman that she

submit to the PBT cannot be justified under the search incident to arrest exception because she

was not arrested for DUI.

        The City asks us to make the “necessary inference” that Kaufman was arrested for an

outstanding warrant and a DUI and hold that Kaufman’s refusal to take the PBT occurred



6
  “Analysis of the person’s blood or breath to be considered valid under the provisions of [driving
under the influence] shall have been performed according to methods approved by the state
toxicologist and by an individual possessing a valid permit issued by the state toxicologist.”
Former RCW 46.61.506(3).

                                                   8
No. 51202-5-II


subsequent to a custodial arrest for DUI and thereby fell within the search incident to arrest

exception. Br. of Resp’t at 6. For reasons we discuss below, we decline to draw this inference.

       Implicit in the City’s argument, however, is the acknowledgement that if Kaufman’s arrest

was not based either entirely or partially on suspicion of DUI, the request that she take the PBT

cannot be justified under the search incident to arrest exception, and her refusal to take the PBT

would therefore be inadmissible at trial.7 On this particular point, we agree. This premise is not

only supported by the language used in both Baird and in Birchfield, on which Baird relies, but

also by the logical application of the search incident to arrest rule. Birchfield, 136 S. Ct. at 2185;

Baird, 187 Wn.2d at 222.

       In Baird, the court stated, “The Supreme Court of the United States has recently decided

this question for us: breath tests conducted subsequent to an arrest for DUI fall under the search

incident to arrest exception to the warrant requirement.” 187 Wn.2d at 222 (emphasis added).

And the United States Supreme Court stated in Birchfield, “Having assessed the effect of BAC

tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment

permits warrantless breath tests incident to arrests for drunk driving.” 136 S. Ct. at 2184 (emphasis

added). The Court further stated, “[W]e conclude that a breath test, but not a blood test, may be

administered as a search incident to a lawful arrest for drunk driving. As in all cases involving

reasonable searches incident to arrest, a warrant is not needed in this situation.” Id. at 2185.




7
  Kaufman did not argue at the trial court and does not argue on appeal that her refusal to submit
to the evidentiary breath test should not have been admitted into evidence because it was not the
product of a search incident to arrest for DUI. As such, evidence of her refusal to perform the
evidentiary breath test is not before us.

                                                  9
No. 51202-5-II


       It makes sense that both our Supreme Court and the United States Supreme Court would

limit a search of an arrestee’s breath in this manner. The search incident to arrest exception has

twin justifications: protecting the safety of officers conducting the arrest and preserving evidence

that might be present on the person of the arrestee so as to prevent its concealment or destruction.

Riley v. California, 573 U.S. 373, 383, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014); State v. Byrd,

178 Wn.2d 611, 617-18, 310 P.3d 793 (2013).             The exception has been characterized as

categorical, meaning the legality of the search flows from the fact of the arrest alone, and the

government need not make an individualized showing in each case why the search was necessary.

United States v. Robinson, 414 U.S. 218, 225, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); Byrd,

178 Wn.2d at 618.

       The search, however, must still be reasonable, just as all searches must be reasonable to

pass constitutional muster under the Fourth Amendment. Brigham City v. Stuart, 547 U.S. 398,

403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006).

       Although the search incident to arrest exception is indeed categorical, searching an

arrestee’s breath for evidence of alcohol concentration is qualitatively different than a typical

search incident to arrest in which the officer looks for tangible, confiscable items that may be

present on the arrestee’s person or within his effects. The search incident to arrest exception has

historically involved tangible items and there has never been a nexus requirement in which the

officer would need to tailor the search in such a way that it could discover, in addition to items that

might pose a danger, evidence of only the crime of arrest. Application of a nexus rule in an

ordinary search incident to arrest scenario would be unworkable. An officer would likely not know

whether an item found on an arrestee is evidence of the crime of arrest until after it is discovered.


                                                  10
No. 51202-5-II


       This is not so in the context of breath testing. It is immediately apparent to an officer at

the moment of arrest whether a test of a bodily constituent such as deep lung air is necessary

because it would either pose a danger to the officer if not collected or would constitute evidence

of the crime of arrest. There would never be a need, for instance, for an officer to search an

arrestee’s breath incident to an arrest for a crime such as harassment or forgery. And it certainly

cannot be said that deep lung air, as it exists in the body, poses a danger to the safety of an officer

if not collected and tested for alcohol.

       Applying these principles, it is necessary to limit the search of a person’s breath incident

to arrest, for breath alcohol concentration, to crimes such as driving under the influence or some

other driving offense involving alcohol consumption as an element, such as a minor operating a

motor vehicle after consuming intoxicants. A search of an arrestee’s breath incident to an arrest

on an unrelated offense at a time when the officer had not even begun a DUI investigation and

lacked anything even approaching probable cause to arrest for DUI, as occurred in this case, cannot

be permitted. And if the search of Kaufman’s breath was not permitted under the search incident

to arrest exception or any other exception to the warrant requirement, she retained a constitutional

right to refuse to consent to the search and her refusal to offer her consent cannot be used as

evidence against her at trial. Baird, 187 Wn.2d at 221-22; Gauthier, 174 Wn. App. at 267.

       Having effectively conceded that the arrest in this case must have been based in whole or

in part for DUI in order for the PBT refusal to be admissible, the City centers its argument on the

premise that the arrest in this case was, in fact, for DUI as well as for Kaufman’s outstanding

misdemeanor warrant. To do this, the City misrepresents the record.




                                                  11
No. 51202-5-II


       Contrary to the City’s argument, Tyler testified at several points that the arrest in this case

was not for DUI. Tyler admitted that he did not have probable cause for an arrest for DUI at the

time he arrested Kaufman on the warrant. We do not draw an “inference” about what offense

Kaufman was arrested for when the record plainly shows it was not for DUI.8

       In support of its argument that the trial court did not err in admitting Kaufman’s refusal to

submit to the PBT, the City additionally relies on cases and principles that govern evidentiary

breath testing under the implied consent statute. In so doing, the City ignores that the PBT is

exclusively governed by ch. 448-15 WAC, not the implied consent scheme.

       Relying on State v. Smith, 130 Wn.2d 215, 222, 922 P.2d 811 (1996), the City concedes

that unlike an evidentiary breath test, PBT results are inadmissible at trial.9 But the City cites State

v. Cohen, 125 Wn. App. 220, 224, 104 P.3d 70 (2005), to argue that admissibility of a refusal to




8
  We note that even if the arrest in this case had been for DUI, it is questionable whether the City
could rely on the search incident to arrest exception for admission of Kaufman’s refusal to submit
to the PBT. Former WAC 448-15-020 permits the use of the PBT to determine that a subject has
consumed alcohol and to establish probable cause to place a person under arrest for alcohol related
offenses. However, a PBT performed to establish probable cause for arrest is administered before
an arrest. In contrast, a search incident to arrest must occur subsequent to the arrest. Baird, 187
Wn.2d at 222; State v. O’Neill, 148 Wn.2d 564, 585, 62 P.3d 489 (2003); Byrd, 178 Wn.2d at 617
(“‘a search may be made of the person of the arrestee by virtue of the lawful arrest’”) (quoting
Robinson, 414 U.S. at 224). A search that precedes an arrest, as a PBT must be conducted under
former WAC 448-15-020, cannot be justified under the search incident to arrest exception to the
warrant requirement.
9
  Smith held that “in the absence of a Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),] hearing
on the PBT, or specific approval of the device and its administration by the state toxicologist, the
result garnered from the PBT is inadmissible for any purpose.” 130 Wn.2d at 222. The state
toxicologist has approved two PBT instruments for the uses outlined in former WAC 448-15-020.
See former WAC 448-15-010 (2008). The City produced no evidence that the instrument it
intended to use for Kaufman’s preliminary breath test was one of the two instruments approved
for use by the state toxicologist under former WAC 448-15-010.

                                                  12
No. 51202-5-II


submit to a PBT is not dependent on whether the results of the test would have been admissible at

trial. The City’s reliance on Cohen is misplaced.

        In Cohen, the defendant refused to provide an evidentiary breath sample. 125 Wn. App. at

222. At the time of her refusal, the Datamaster instrument on which Cohen provided her breath

sample had not been subjected to a valid quality assurance procedure, which would have rendered

a test result inadmissible at her trial. Id. Cohen argued that because a test result produced by the

Datamaster would have been inadmissible at trial, her refusal to submit to the Datamaster test was

likewise inadmissible at trial. Id. at 225. In rejecting Cohen’s claim, the court focused on Cohen’s

informed refusal to submit to the test rather than whether the test results would have been

admissible. Stated another way, the court relied on the implied consent scheme—a statutory

scheme that does not apply to testing by use of a PBT. Id. at 224-25. Cohen is inapposite to this

case.

        The City next relies on State v. Sosa, 198 Wn. App. 176, 185, 393 P.3d 796, review denied,

188 Wn.2d 1022 (2017), to support its proposition that we should treat PBT refusal evidence the

same as evidentiary breath test refusal evidence and hold that such evidence is admissible at trial.

In Sosa, trial counsel failed to object to the admission of the defendant’s PBT refusal. Id. On

appeal, Sosa claimed ineffective assistance of counsel, arguing that the refusal to take the PBT

should not have been admitted because the PBT has not been found to satisfy the standard for

admission of scientific evidence under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Sosa,

198 Wn. App. at 185.

        Division Three of this court held that because the State never obtained a PBT result, “there

was no need to determine reliability.” Id. Citing Baird, the court went on to say, “Under


                                                13
No. 51202-5-II


Washington’s implied consent law, an individual has a choice either to submit to a PBT or permit

evidence of refusal at trial. . . . There is not a third option, dependent on the reliability of the PBT.”

Id.

        We disagree with Sosa because PBTs are governed by ch. 448-15 WAC, not the implied

consent statute. Furthermore, reliance on the implied consent statute is erroneous because the

warnings that must be provided to a subject prior to administering the test are entirely different.

Thus, the “choice” referenced in Sosa is no choice at all because the implied consent warning is

not given prior to the administration of the PBT. It is significant that prior to administration of a

PBT, an officer is not required to advise a subject that the refusal to submit to a PBT may be used

as evidence in a subsequent criminal trial as the officer would be required to advise in the context

of Datamaster testing. See former WAC 448-15-030 (2008).

        Additionally, submission to a PBT does not constitute compliance with the implied consent

statute. Former WAC 448-15-020. Thus, if a driver provides a sample for the PBT, the driver is

not deemed to have taken the evidentiary breath test. Likewise, if the driver takes the PBT but

later refuses to take the evidentiary breath test, the driver would not escape the statutory

consequences of the implied consent statute for the refusal. On this point we note that an officer

may utilize the PBT in the determination of probable cause only if the procedures outlined in

former WAC 448-15-030 are followed. Among other requirements, former WAC 448-15-030

requires the officer to advise the subject that the test is voluntary and “that it is not an alternative

to any evidential breath alcohol test.” Former WAC 448-15-030(1).

        Although Tyler testified that he told Kaufman the test was voluntary, the City presented no

evidence that Tyler advised Kaufman that the PBT was not an alternative to any evidentiary breath


                                                   14
No. 51202-5-II


test. Therefore, the admission of the refusal in this case would be precluded based on the City’s

failure to show compliance with former WAC 448-15-030. Moreover, even if we assume that a

PBT is properly likened to an evidentiary breath test, Kaufman’s refusal to take an evidentiary

breath test would not be admissible in the absence of the officer giving the required statutory

(implied consent) warning, which Tyler did not do. See generally State v. Elkins, 152 Wn. App.

871, 220 P.3d 211 (2009); Medcalf v. Dep’t of Licensing, 83 Wn. App. 8, 920 P.2d 228 (1996),

aff’d, 133 Wn.2d 290, 944 P.2d 1014 (1997). We decline to follow Sosa.10

          Because the use of PBTs is governed by ch. 448-15 WAC and not the implied consent

statute, the City’s reliance on cases involving implied consent breath testing to justify the

admission of the PBT refusal in this case is unpersuasive. Refusal of an evidentiary breath test is

admissible evidence against the defendant under the implied consent statute only if the defendant

lacked a constitutional right to refuse the test. Baird, 187 Wn.2d at 222. In that instance, the State

may comment on the refusal because the driver is not exercising a constitutional right in refusing

to take the breath test. Id. Rather, the driver is merely exercising a statutory right to refuse, and

the statute which grants a driver the right to refuse the test—the implied consent statute—further

provides that said refusal is admissible in evidence against the driver in the event of a trial. Id. at

223.

          We hold that where a custodial arrest is based on an offense unrelated to DUI or some other

driving offense in which alcohol consumption is not an element, a search of an arrestee’s breath

for alcohol concentration does not fall within the search incident to arrest rule set forth in Baird

and Birchfield. Because a PBT does not fall under the search incident to arrest exception in this



10
     The Sosa court’s reliance on Baird is unpersuasive because Baird did not discuss the PBT.
                                                  15
No. 51202-5-II


case, Kaufman had a constitutional right to refuse the PBT and evidence of her exercise of her

constitutional right to refuse this test was improperly admitted.

        Furthermore, this constitutional error was not harmless. In order to demonstrate this error

was harmless beyond a reasonable doubt, the City must show that the overwhelming untainted

evidence in this case necessarily leads to a finding of guilt. Watt, 160 Wn.2d 636. We conclude

the City has not met this burden.

        Tyler stopped Kaufman because she was traveling slightly over the speed limit and

because, after entering the left hand turn lane, she failed to signal her left turn at least 100 feet

prior to making the turn. Tyler did not see Kaufman swerve or weave. Tyler did not make note

of Kaufman’s odor of intoxicants until his second contact with her, and although he noted her

watery and bloodshot eyes, he also noted that she was crying. At trial, the City relied heavily on

the inference of guilt arising from Kaufman’s refusal to perform any tests. This leads us to

conclude that the City has not shown that the untainted evidence in this case is so overwhelming

that it necessarily leads to a finding of guilt.

                         III. THE OFFICER’S IMPROPER OPINION TESTIMONY

        Kaufman contends that the trial court committed reversible error by allowing improper

opinion testimony when Officer Tyler commented on Kaufman’s alleged consciousness of guilt in

refusing to perform FSTs, the PBT, and the Datamaster breath test. Kaufman argues that Tyler’s

improper testimony violated her constitutional right to a jury trial and the City cannot show that

this error was harmless beyond a reasonable doubt. Because this issue may recur on remand, we

address this claim. We agree with Kaufman.




                                                   16
No. 51202-5-II


       During Tyler’s testimony, the City asked Tyler, “Is it evidence [that] someone’s under the

influence of alcohol if they refuse to do the field sobriety tests?” CP at 251-52. Tyler responded

by stating that if someone refuses to do the field sobriety tests, “it usually shows me that they are

under the influence because they don’t want the tests to fail.” Id. at 252. When the City asked

Tyler what Kaufman’s refusal to take the PBT indicated to him, he responded that it indicated that

“she didn’t want to take the tests because the results would show that she’s under the influence.”

Id. When asked if someone refusing to provide a breath sample on the Datamaster breath test is

further evidence the person is under the influence, Tyler responded, “[I]t’s usually an indication

yes.” Id.

       The City concedes this testimony was improper, and we accept the City’s concession.

“Generally, 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. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001)

(internal quotation marks omitted) (alteration in original) (quoting Seattle v. Heatley, 70 Wn. App.

573, 577, 854 P.2d 658 (1993)).

       Some opinions, “particularly expressions of personal belief, as to the guilt of the defendant,

the intent of the accused, or the veracity of witnesses,” are clearly inappropriate in criminal trials.

State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008). Improper opinion testimony

from a law enforcement officer may be especially prejudicial because the officer’s testimony

“often carries a special aura of reliability.” Demery, 144 Wn.2d at 765.




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       Here, the parties agree that Tyler’s opinion testimony was improper and also agree that the

error is constitutional. But the City argues that this error was harmless beyond a reasonable doubt

because Tyler’s testimony was “based on his training and experience” and the evidence presented

and his testimony were simply explaining why someone may refuse to comply with a DUI

investigation, which is a “straight-forward interpretation” and “any lay person could easily come

up with the same inference.” Br. of Resp’t at 12.

       In other words, despite conceding that Tyler’s testimony was improper, the City predicates

its harmless error argument on the idea that the testimony was not, in fact, improper. However,

because we have accepted the City’s concession, all that remains is for us to determine whether

the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. Watt, 160

Wn.2d at 636.

       This error, like the erroneous admission of Kaufman’s refusal to submit to the PBT,

warrants reversal. As noted above, at trial the City relied heavily on the inference of guilt arising

from Kaufman’s refusal to perform any tests, which was bolstered by Tyler’s improper and

prejudicial opinion testimony. Neither the City’s untainted evidence pointing to Kaufman’s

intoxication nor the City’s untainted evidence tending to show that Kaufman exhibited impaired

driving, was so overwhelming that it necessarily leads to a finding of guilt.

       The City has not demonstrated the constitutional errors in this case were harmless beyond

a reasonable doubt.




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                                        CONCLUSION

       We reverse Kaufman’s conviction for DUI because the trial court erred in admitting

evidence that Kaufman refused to take the PBT and erred in admitting improper opinion testimony.

The City has not shown these constitutional errors were harmless beyond a reasonable doubt. We

remand for further proceedings.



                                                   CRUSER, J.
 We concur:



WORSWICK, P.J.




GLASGOW, J.




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