126 Wn. App. 584, State v. Phillips

[No. 22890-8-III. Division Three. March 31, 2005.]

THE STATE OF WASHINGTON , Petitioner , v. ALEXANDER PHILLIPS , Respondent .

[1] Criminal Law - Evidence - Suppression - Conclusions of Law - Review - Standard of Review. An appellate court reviews de novo a trial court's conclusions of law following a motion to suppress.

[2] Automobiles - Arrest - Stop and Identify - Articulable Suspicion - License of Registered Owner Suspended or Revoked - Statutory Authority. Under RCW 46.20.349 , a police officer may stop a vehicle registered to a person whose driver's license has been suspended or revoked. A Department of Licensing report of suspension or revocation will support an articulable suspicion of criminal conduct sufficient to justify a brief investigatory stop.

[3] Searches and Seizures - Automobiles - Vehicle Licensing Records - Computerized Check - Right to Privacy. The Department of Licensing's disclosure of licensing records violates neither a subjective nor objective expectation of privacy. Vehicle registration numbers must be displayed front and back to enable law enforcement to obtain department information and to act on a reasonable suspicion arising from that information.[4] Automobiles - Arrest - Detention for Questioning - Individualized Suspicion - Revoked or Suspended Driver's License. A police officer may conduct a limited seizure of a motorist to investigate an articulable suspicion that the motorist is driving without a valid license. Under RCW 46.20.349 , an officer who has notice from the Department of Licensing that the driver's license of the registered owner of a vehicle is suspended or revoked may stop the vehicle and ask to see the driver's license of the person operating the vehicle. Evidence that the driver's license of the registered owner

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is suspended or revoked constitutes individualized suspicion sufficient to establish cause for a Terry stop of the vehicle and its driver. The police officer is not required to corroborate, by information independent of Department of Licensing records, the identity of the driver as the registered owner of the vehicle whose license has been suspended or revoked. It is appropriate and permissible for the officer to dispel his or her suspicion by stopping the vehicle and identifying the driver thereof.

Nature of Action: Prosecution for driving with a suspended license. The defendant was stopped and asked to show his driver's license. A sheriff's deputy had called in a random check of the vehicle's license plate number and learned that the registered owner's driver's license was suspended.

District Court: The Spokane County District Court, No. CR 55629, Harold D. Clarke, J., on June 5, 2003, granted the defendant's motion to suppress evidence for lack of sufficient evidence to justify the stop and dismissed the charge.

Superior Court: The Superior Court for Spokane County, No. 03-1-02018-5, Jerome J. Leveque, J., on March 17, 2004, affirmed the district court's dismissal order.

Court of Appeals: Holding that the investigative stop did not require prior affirmative verification that the driver's appearance matched that of the registered owner and that the motion to suppress should have been denied, the court reverses the decision of the superior court and the dismissal order.

Steven J. Tucker , Prosecuting Attorney, and Brian C. O'Brien , Deputy, for petitioner.

Susan M. Gasch (of Gasch Law Office ), for respondent.

¶1 SWEENEY , A.C.J. - A law enforcement officer may stop a motorist and ask for identification when a random vehicle

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registration check discloses that the registered owner's driver's license has been suspended. Alexander Phillips was stopped and asked to show his driver's license. A sheriff's deputy had called in a random check of his vehicle's plate number and learned that the owner's license was suspended. The court suppressed the evidence for lack of sufficient grounds to justify a stop, and the judge dismissed the charge of driving with license suspended. The superior court affirmed. We reject Mr. Phillips's argument that an investigative stop requires prior affirmative verification that the driver's appearance matches that of the registered owner. And we reverse the order of dismissal.

FACTS

¶2 A Spokane sheriff's deputy conducted a random Department of Licensing (DOL) records check on the vehicle Alexander Phillips was driving. The DOL reported that the registered owner's license had been suspended. The deputy pulled Mr. Phillips over and asked to see his driver's license, vehicle registration, and proof of insurance. Mr. Phillips was the registered owner of the vehicle, and his license was indeed suspended. He was arrested for driving with a suspended license. The deputy also cited Mr. Phillips for driving with expired vehicle tabs and without proof of insurance.

¶3 Mr. Phillips moved in district court to dismiss the charges. The judge accepted his argument that fresh information that the owner of a vehicle has a suspended license does not constitute probable cause to stop the vehicle and identify the driver. The judge ruled that failure of the officer to document that the appearance of the driver matched the DOL description of the vehicle owner rendered the stop unlawful.

¶4 The State appealed to the superior court. The superior court affirmed. The court ruled that an officer must establish that "the person driving at least fit[s] a minimum identification of the registered owner before the stop." Clerk's Papers at 36.

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¶5 We granted the State's motion for discretionary review.

DISCUSSION

[1]¶6 We review de novo the court's conclusions of law following a motion to suppress. State v. Shaver , 116 Wn. App. 375 , 380, 65 P.3d 688 (2003). The question here is whether an officer must corroborate, by information independent of the DOL, the identity of a driver as the registered vehicle owner whose license has been suspended.

[2]¶7 An officer may stop a vehicle registered to a person whose driver's license has been suspended. RCW 46.20.349 . A DOL report of suspension supports articulable suspicion of criminal conduct sufficient to justify a brief investigatory stop. State v. Penfield , 106 Wn. App. 157 , 160-61, 22 P.3d 293 (2001). Our holding in Penfield is in accord with City of Seattle v. Yeager , 67 Wn. App. 41 , 46-49, 834 P.2d 73 (1992). There, Division One of this court held that an officer may stop and investigate a vehicle bearing a license plate tab indicating that the vehicle owner's driving privileges are suspended. Id. at 47. Additional investigation is not required to stop. This is the import of RCW 46.20.349 :

Any police officer who has received notice of the suspension or revocation of a driver's license from the department of licensing, may, during the reported period of such suspension or revocation, stop any motor vehicle identified by its vehicle license number as being registered to the person whose driver's license has been suspended or revoked. The driver of such vehicle shall display his [or her] driver's license upon request of the police officer.

¶8 Mr. Phillips contends that information about the registered owner is not, by itself, sufficient to justify a stop. He argues, based on our decision in Penfield , that the officer must compare a description of the registered owner to the driver before proceeding. We disagree.

[3]¶9 The DOL's disclosure of licensing records violates neither a subjective nor objective expectation of privacy.

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State v. McKinney , 148 Wn.2d 20 , 32, 60 P.3d 46 (2002). Indeed, vehicle registration numbers must be displayed front and back to enable law enforcement to obtain DOL information and to act on a reasonable suspicion arising from that information.

[4]¶10 A law enforcement officer may conduct a limited seizure to investigate an articulable suspicion of wrongdoing. Terry v. Ohio , 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). An officer who has notice from the DOL that a person's driver's license is suspended may stop any vehicle registered to that person and ask to see the driver's license. RCW 46.20.349 . Evidence that the driver's license of the registered owner of a vehicle is revoked or suspended is individualized suspicion sufficient to establish cause for a Terry stop. RCW 46.20.349 ; State v. Lyons , 85 Wn. App. 268 , 270, 932 P.2d 188 (1997). It is, then, appropriate and permissible for the officer to dispel his or her suspicion by identifying the driver. Lyons , 85 Wn. App. at 271 ; Yeager , 67 Wn. App. at 47 .

¶11 Our decision in Penfield is an exception. There, we held that an officer may not, without additional grounds for suspicion, proceed with a stop based on a registration check once it is manifestly clear that the driver of the vehicle is not the registered owner. Penfield , 106 Wn. App. at 162 . In Penfield , the driver and registered owner were of the opposite sex. Id. at 161.

¶12 But here, there was no apparent reason to suppose that this driver might not be the owner. Penfield required the officer to respond to the obvious. The law encourages officers to proceed on the reasonable suspicion that the registered owner of a vehicle is driving, absent some manifest reason to believe otherwise.

¶13 The motion to suppress should have been denied. We reverse the order of dismissal.

SCHULTHEIS and BROWN , JJ., concur.Reconsideration denied May 10, 2005. No. 30896-7-II. Division Two. January 11, 2005.]

THE STATE OF WASHINGTON , Petitioner , v. ERIC CALVIN KOCH , Respondent .

[1] Intoxicating Liquors - Automobiles - Driving While Intoxicated - Advisement of Rights - Sufficiency - Question of Law or Fact - Standard of Review. The sufficiency of an implied consent warning given to a motorist suspected of driving under the influence of an intoxicant is a question of law that is reviewed de novo.

[2] Intoxicating Liquors - Automobiles - Driving While Intoxicated - Advisement of Rights - Sufficiency - Specific Language - Additional Warnings. When giving an implied consent warning to a motorist suspected of driving under the influence of an intoxicant, a law enforcement officer may not add warnings that are not contained in the plain language of the implied consent statute (RCW 46.20.308 ).

[3] Intoxicating Liquors - Automobiles - Driving While Intoxicated - Advisement of Rights - Sufficiency - Objective Standard. In evaluating the adequacy of an implied consent warning given to a motorist arrested on suspicion of driving under the influence of an intoxicant, the issue is whether the warning gave the motorist an opportunity to knowingly and intelligently decide whether to refuse to consent to an evidentiary breath test. This standard is met, at least in part, if the warning permits a person of normal intelligence to understand the consequences of his or her actions.

[4] Intoxicating Liquors - Automobiles - Driving While Intoxicated - Breath or Blood Test - Refusal - Nature of Right. The right of a motorist arrested on suspicion of driving under the influence of an intoxicant to refuse to consent to a breath alcohol test is a matter of legislative grace, not a constitutional right.

[5] Intoxicating Liquors - Automobiles - Driving While Intoxicated - Advisement of Rights - Error - Effect on Admissibility of Results of Breath Test. An inaccuracy in the implied consent warning given to a motorist suspected of driving under the influence of an intoxicant may require suppression of the results of subsequently administered breath alcohol tests.

[6] Intoxicating Liquors - Automobiles - Driving While Intoxicated - Advisement of Rights - Sufficiency - Specific Language - Variation From Statute. An implied consent warning given to a motorist suspected of driving under the influence of an intoxicant can be sufficient notwithstanding a difference in language from the implied consent statute (RCW 46.20.308 ) so long as the meaning implied or conveyed by the warning does not differ from the meaning required by the statute.

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[7] Intoxicating Liquors - Automobiles - Driving While Intoxicated - Advisement of Rights - Sufficiency - Warning To Be Cooperative - Beginning of Contact. A law enforcement officer's statement early in an encounter with a motorist suspected of driving under the influence of an intoxicant warning the motorist to cooperate does not affect the sufficiency of the implied consent warning given to the motorist after arrest so long as the statement is not made as part of the implied consent warning and is not specifically addressed to the motorist's decision whether to refuse a breath alcohol test.

[8] Evidence - Opinion Evidence - Expert Testimony - Scientific Evidence - Horizontal Gaze Nystagmus Test - Scope. An expert witness may testify that a horizontal gaze nystagmus test can show the presence of alcohol but may not testify that the test can show the specific levels of intoxicants.

[9] Criminal Law - Evidence - Pretrial Ruling - Violation - Preservation for Review - Objection - Necessity. An objection must be raised to the erroneous admission of evidence in violation of a pretrial evidentiary ruling in order to preserve the issue for review if there are no unusual circumstances that make it impossible to avoid the prejudicial impact of the error.

[10] Criminal Law - Evidence - Pretrial Ruling - Violation - Preservation for Review - Objection - Sufficiency - Motion For Mistrial. A motion for a mistrial may be sufficient to preserve for review a claim that the trial court erroneously admitted evidence in violation of a pretrial evidentiary ruling.

[11] Criminal Law - Trial - Irregularities - Mistrial - Review - Standard of Review. A trial court's denial of a motion for a mistrial is reviewed for an abuse of discretion. A reviewing court will find an abuse of discretion only when no reasonable judge would have reached the same conclusion. A trial court's denial of a mistrial will be overturned only if there is a substantial likelihood that the error on which the motion was based affected the jury's verdict.

[12] Criminal Law - Trial - Irregularities - Mistrial - Test - Degree of Prejudice. A criminal defendant should not be granted a mistrial unless the defendant has been so prejudiced that nothing short of a new trial will ensure that the defendant receives a fair trial.

[13] Evidence - Opinion Evidence - Expert Testimony - Scientific Evidence - Horizontal Gaze Nystagmus Test - Improper Testimony - Mistrial - Necessity. In the trial of a defendant charged with driving under the influence of an intoxicant, improper expert testimony that a horizontal gaze nystagmus test indicated that the defendant had an alcohol concentration of .08 does not constitute a ground for mistrial if properly admitted breath alcohol test results show that the defendant had an alcohol concentration of 0.08 or higher.

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Nature of Action: Prosecution for driving under the influence of an intoxicant. Just after the defendant was placed under arrest, the defendant overheard the arresting officer say to the defendant's passenger that the defendant would be returned to a particular restaurant to meet the passenger if the defendant was cooperative and polite. The defendant was subsequently taken to a police station where he was read an implied consent warning. The defendant did not refuse a breath alcohol test.

District Court: After denying the defendant's motion to suppress the breath alcohol test results but granting the defendant's motion in limine to exclude testimony concerning the capacity of the horizontal gaze nystagmus test to show specific levels of intoxication, the Pierce County District Court, No. 1YC001773, Ronald E. Culpepper, J., entered a judgment of guilty on January 9, 2002.

Superior Court: The Superior Court for Pierce County, No. 02-1-00505-7, Beverly G. Grant, J., on September 23, 2003, reversed the judgment, holding that the district court should have suppressed the breath alcohol test results and should have granted a mistrial based on expert testimony that violated the order in limine regarding the capacity of the horizontal gaze nystagmus test to show specific levels of intoxication.

Court of Appeals: Holding that the district court properly refused to suppress the breath alcohol test results where the arresting officer's statement overheard by the defendant was not a part of the implied consent warning and that the district court properly refused to declare a mistrial based on the violation of the order in limine where the breath alcohol test results provided corroborating evidence of the defendant's level of intoxication, the court reverses the decision of the superior court and reinstates the judgment.

Gerald A. Horne , Prosecuting Attorney, and Miry Kim , Deputy, for petitioner .

Kenneth W. Fornabai , for respondent .

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¶1 ARMSTRONG , J. - The State appeals a superior court decision reversing Eric Koch's conviction for one count of driving while under the influence of intoxicants, arguing that the superior court erred when it held that the district court should have suppressed Koch's breath tests and should have declared a mistrial because the State's toxicologist testified in violation of an in limine order. Because the district court properly admitted the breath test results and the in limine order violation did not harm Koch, we reverse the superior court and affirm the district court's conviction.

FACTS

¶2 On May 22, 2001, Washington State Patrol Trooper Mark Lewis stopped Eric Koch's vehicle after he saw it cross over a lane divider and make a "jerking correction back into his [vehicle's] lane" of travel. Trial Transcript (TT) at 14-15. Lewis detected an odor of intoxicants coming from inside the vehicle and noticed that Koch had watery, bloodshot eyes. Based on Koch's driving and the field sobriety tests, Lewis believed Koch had been driving under the influence.

¶3 Lewis arrested Koch and advised him of his constitutional rights from the Washington State Patrol DUI Arrest Report form; Koch acknowledged that he understood these rights. Melody Martyn, Koch's passenger, testified that because Koch's vehicle was being impounded, she asked Lewis if Koch would be allowed to meet her at a restaurant later that night. Lewis told Martyn that as long as Koch was cooperative and polite, the trooper would return Koch to the restaurant. Koch heard this conversation.

¶4 Lewis also testified that when he arrests someone for driving under the influence, he always tells the person that

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"[a]s long as they are cooperative and polite throughout the whole contact they will be going home - they will be going home that evening." Motion Transcript (MT) at 71.

¶5 After arresting Koch, Lewis took him to the Fife police station. There, Lewis read Koch the implied consent warnings from the Washington State Patrol DUI Arrest Report form. Koch testified that Lewis angrily confronted another arrested person at the station. According to Koch, he did not want a similar confrontation with Lewis and did not ask for a lawyer or refuse to take the test for fear Lewis would think he was being uncooperative. Koch's breath tests showed alcohol concentration levels of .147 and .141.

¶6 Koch moved to suppress his breath tests, arguing that Lewis's statements about being polite and cooperative to avoid jail were extraneous to the required statutory implied consent warnings and coerced him into taking the breath test. The district court refused to suppress the test results. Before trial, Koch also moved to exclude testimony concerning the horizontal gaze nystagmus (HGN) test's capacity to show specific levels of intoxication. The court ruled that under State v. Baity , 140 Wn.2d 1 , 17-18, 991 P.2d 1151 (2000), testimony on the HGN test was admissible to show the presence of alcohol but not a specific level of intoxication. The court and the parties discussed the issue primarily as it would relate to Lewis's testimony, but after trial, the court stated that its order applied to the State's toxicologist as well.

¶7 Lewis testified that when he detects HGN, it tells him "[t]hat there is a chance that there is alcohol in the person's system." TT at 20. But when the prosecutor asked the toxicologist about the reliability of the HGN test, he testified that it was "like 91 or 92 percent reliable" at a .08 level. TT at 77. Koch did not object to this testimony but moved for a mistrial, arguing that the prosecutor engaged in misconduct by eliciting this testimony.

¶8 Koch appealed to the Pierce County Superior Court, which reversed his conviction, holding that his breath test evidence should have been suppressed because of Lewis's

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statements and because the trial court should have granted a mistrial based on the toxicologist's testimony on HGN reliability. A commissioner of this court granted the State's motion for discretionary review on the implied consent issue; the order also allowed the State to raise the mistrial issue. RAP 2.3(b), (d).

ANALYSIS

I. Implied Consent Warnings

[1, 2]¶9 The validity of implied consent warnings is a question of law we review de novo. City of Bellevue v. Moffitt , 87 Wn. App. 144 , 146, 940 P.2d 695 (1997). A driver arrested by an officer who has reasonable grounds to believe that the driver is under the influence of an intoxicant is deemed to have consented to a breath or blood test of the alcohol concentration in his blood. Former RCW 46.20.308 (1) (1999).«1»The officer must inform the suspect that he may refuse to consent and that he has a right to have additional tests administered by a qualified person of his choice as provided in RCW 46.61.506 . Former RCW 46.20.308 (2). The officer must also warn the suspect that his license will be revoked or denied if he refuses to submit to the test; that his license will be suspended, revoked, or denied if the test shows an alcohol concentration of 0.08 or more if the person is 21 or over; and that his refusal may be used in a criminal trial. Former RCW 46.20.308 (2)(a)-(c). The officer may not add warnings that are not contained in the plain language of the implied consent statute. Moffitt , 87 Wn. App. at 149 .

[3]¶10 In evaluating the adequacy of implied consent warnings, the issue is whether the warnings gave the defendant an opportunity to knowingly and intelligently decide whether to take an evidentiary breath test. State v. Whitman County Dist. Court , 105 Wn.2d 278 , 282, 714 P.2d


«1»The version of the implied consent statute in effect at the time Koch was arrested.


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1183 (1986). These standards are met, at least in part, if the warning permits a person of normal intelligence to understand the consequences of his actions. Jury v. Dep't of Licensing , 114 Wn. App. 726 , 731, 60 P.3d 615 (2002) (citing Whitman , 105 Wn.2d at 286 ), review denied , 149 Wn.2d 1034 (2003).

[4-6]¶11 The choice to consent to or refuse a breath test is not a constitutional right; it is "a matter of legislative grace" and turns on whether the officer has accurately stated the warnings. State v. Bostrom , 127 Wn.2d 580 , 590, 902 P.2d 157 (1995) (citing State v. Zwicker , 105 Wn.2d 228 , 242, 713 P.2d 1101 (1986)). Inaccuracies in the statutory implied consent warnings may require the court to suppress the test results. See , e.g. , State v. Bartels , 112 Wn.2d 882 , 884-85, 774 P.2d 1183 (1989) (suppressing indigent defendants' test results where officers warned that they had right to have qualified person of their choosing administer additional blood test "at your own expense"); Whitman County , 105 Wn.2d at 280 (officer's warning that refusal to take breath test "shall" be used at trial required suppression because statute said "may"). But the warnings "need not exactly match the statutory language, just so long as the meaning implied or conveyed is not different from that required by the statute." Jury , 114 Wn. App. at 732 (citing Town of Clyde Hill v. Rodriguez , 65 Wn. App. 778 , 785-86, 831 P.2d 149 (1992)).

¶12 Nonetheless, an officer's attempt to clarify proper warnings may invalidate the warnings if the officer gives inaccurate advice. See Mairs v. Dep't of Licensing , 70 Wn. App. 541 , 546-47, 854 P.2d 665 (1993). In Mairs , the officer read the suspect the implied consent warnings at least four times, but when the suspect did not understand, the officer attempted to clarify by telling her that her license would "probably" be suspended if she refused a test. Mairs , 70 Wn. App. at 545 -46. Because refusal automatically results in revocation or denial of one's license, the court found the warning was confusing and, thus, invalid. Mairs , 70 Wn. App. at 546 .

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[7]¶13 Here, Lewis's statements to Koch and Martyn that if Koch was cooperative and polite, he would be allowed to go home, applied to the entire contact between Koch and Martyn, not just the breath test. Koch concedes that Lewis read him accurate and complete implied consent warnings, but he argues that Lewis's statements were extraneous and unlawfully influenced his decision.

¶14 Koch relies in part on Erdman v. State , 861 S.W.2d 890 (Tex. Crim. App. 1993). The Erdman decision involved a former version of the Texas implied consent statute requiring that drivers be warned that their license would be suspended for 90 days and that evidence of their refusal to consent to a test would be admissible against them in court. The trooper gave Erdman these two required warnings but also warned him that if he refused, he would be charged and placed in jail overnight. Finding that this type of nonstatutory information was likely to result in "considerable psychological pressure upon a . . . suspect to consent to the taking of a breath sample," the court held that State did not meet its burden of showing that Erdman's consent was voluntary. Erdman , 861 S.W.2d at 893-94.

¶15 But Erdman is distinguishable. In Erdman , the officer gave the extraneous advice during the specific implied consent warning. Similarly, in Washington cases where the courts have suppressed evidence of blood alcohol levels, the altered warnings were given as part of the statutorily required implied consent warnings. See , e.g. , Bartels , 112 Wn.2d 882 ; Whitman County , 105 Wn.2d 278 . Lewis warned Koch at the beginning of their contact to cooperate throughout the process. The warning was not part of the implied consent warnings; nor was it specifically addressed to Koch's decision to take a breath test. Lewis properly warned Koch of his rights under the implied consent statute and the consequences of his decision to take or refuse the test. We hold that Lewis's cooperation statement did not deprive Koch of the opportunity to knowingly and intelligently decide whether to take the breath test.

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II. Motion in Limine

¶16 The State argues that the superior court erred when it reversed Koch's conviction because he waived any objection to the toxicologist's testimony and the testimony did not prejudice him. Koch responds that his motion for a mistrial was timely and that he was prejudiced by the toxicologist's testimony.

[8]¶17 The district court correctly ruled that under State v. Baity , 140 Wn.2d 1 , 17-18, 991 P.2d 1151 (2000), a witness may testify that an HGN test can show the presence of alcohol but not the specific levels of intoxicants.

[9]¶18 A party who loses a motion in limine has a standing objection that preserves the issue for appeal. State v. Sullivan , 69 Wn. App. 167 , 171, 847 P.2d 953 (1993). But in the absence of any unusual circumstance that makes it impossible to avoid the prejudicial impact of inadmissible evidence, the complaining party still must object to preserve the issue for appeal. Sullivan , 69 Wn. App. at 173 .

¶19 In Sullivan , the defendant successfully moved in limine to exclude testimony that would place the defendant in a high risk group of sexual offenders. The defendant did not object to the testimony at issue, but he argued on appeal that one of the State's witnesses violated the in limine order. Because he failed to object at trial and did not raise the issue in his post-trial motion, we held that the defendant had waived appellate review. Sullivan , 69 Wn. App. at 169 -73.

[10]¶20 Although Koch did not object at the time the evidence came in, he moved shortly afterward for a mistrial. Our concern in Sullivan was that a party who wins a motion in limine but does not object to a violation at trial "could simply lie back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal." Sullivan , 69 Wn. App. at 172 . Koch does not run afoul of this concern. He raised the issue in time for the trial court to take corrective action, even

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though he did not ask for a limiting instruction. Accordingly, we are not willing to say that Koch waived the issue.

[11, 12]¶21 But we are also unwilling to say the error was harmful. We review a denial of a motion for a mistrial for an abuse of discretion. State v. Barker , 103 Wn. App. 893 , 903, 14 P.3d 863 (2000). An abuse of discretion occurs only if no reasonable judge would have reached the same conclusion. State v. Rodriguez , 146 Wn.2d 260 , 269, 45 P.3d 541 (2002). And before overturning the trial court's decision, we must find there is a substantial likelihood the error affected the jury's verdict. Rodriguez , 146 Wn.2d at 269 -70. A mistrial is appropriate only when the defendant has been so prejudiced that only a new trial can insure that the defendant will be tried fairly. Rodriguez , 146 Wn.2d at 270 .

[13]¶22 Here, we have decided that the trial court properly admitted Koch's breath test, which gave results of .147 and .141. A person is guilty of driving under the influence of an intoxicant if he has "within two hours after driving, an alcohol concentration of 0.08 or higher as shown by analysis of the person's breath or blood made under RCW 46.61.506 " or if the person drives while under the influence of alcohol. RCW 46.61.502 (1)(a), (b). In light of the breath test results, Koch cannot show that the toxicologist's testimony about the reliability level of the HGN test at .08 sufficiently prejudiced him such that a new trial is necessary.

¶23 Accordingly, we reverse the superior court and reinstate and affirm Koch's district court DUI conviction.

HUNT and VAN DEREN, JJ., concur.

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