* State Of Washington, Respondent V. Ahmed Mohamud Wasuge, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
v.
AHMED MOHAMUD WASUGE,
Appellant.
No. 85286-8-I
ORDER DENYING MOTION FOR
RECONSIDERATION AND
WITHDRAWING AND
SUBSTITUTING OPINION
The appellant, Ahmed Mohamud Wasuge, has filed a motion for reconsideration
of the opinion filed on August 12, 2024. The court has determined that the motion should
be denied, but the opinion should be withdrawn, and a substitute opinion filed; now,
therefore, it is hereby
ORDERED that the motion for reconsideration is denied; and it is further
ORDERED that the opinion filed on August 12, 2024 is withdrawn; and it is further
ORDERED that a substitute unpublished opinion shall be filed.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
AHMED MOHAMUD WASUGE,
Appellant.
No. 85286-8-I
DIVISION ONE
OPINION PUBLISHED IN PART
FELDMAN, J. — A jury convicted Ahmed Mohamud Wasuge of being in actual
physical control of a motor vehicle while under the influence of intoxicating liquor,
operating a motor vehicle without a functioning ignition interlock device, and driving
while his license was revoked. On appeal, Wasuge argues we should reverse his
convictions and remand for a new trial due to several alleged evidentiary errors and
prosecutorial 	misconduct. 	Wasuge 	also 	contends 	that 	the 	victim 	penalty
assessment (VPA) should be stricken from his judgment and sentence, an issue
that the State concedes.
In the published portion of this opinion, we conclude the trial court erred in
admitting expert testimony that (a) the general population metabolizes alcohol at a
rate of .01 to .02 percent per hour and (b) the American Medical Association (AMA)
recommends that state legislatures lower the “per se” blood alcohol concentration
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No. 85286-8-I
2
(BAC) limit for driving under the influence (DUI) offenses from .08 to .05 percent.1
But we also conclude that these errors were harmless. In the unpublished portion
of the opinion, we address Wasuge’s remaining assignments of error. We remand
for the trial court to strike the VPA from Wasuge’s judgment and sentence but
otherwise affirm.
I
On the morning of October 12, 2022, a 911 caller reported that a vehicle had
abruptly stopped in the center of a residential road. Upon arriving at the scene at
approximately 6:45 a.m., King County Sheriff’s Office Deputies Andrew Farley and
Andrew Robinson saw a stationary vehicle in the southbound lane of the road with
its headlights and taillights illuminated. 	The officers noticed the vehicle’s engine
was running, the keys were in the ignition, and the transmission was in drive. The
officers also observed Wasuge sitting in the reclined driver’s seat asleep with his
feet resting on the floorboard.
The officers decided to “box the vehicle in” by parking their vehicles in front
of and behind Wasuge’s vehicle. 	Farley then knocked on the front driver’s side
window and announced himself as a law enforcement officer. 	When Wasuge
awoke, he looked at Farley and began rolling down the back driver’s side window
before rolling down the front driver’s side window. Farley immediately smelled “an
1 BAC can be expressed in terms of grams of alcohol per 100 milliliters of blood (i.e., .08 grams per
100 milliliters) or a percentage (i.e., .08 percent), and these terms are used interchangeably. See
State v. Reier, 127 Wn. App. 753, 758, 112 P.3d 566 (2005). The “per se” BAC limit refers to the
BAC level at which a person is guilty of driving or being in actual physical control of a motor vehicle
while under the influence of alcohol under the per se prongs of RCW 46.61.502(1) and RCW
46.61.504(1), as discussed below.
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No. 85286-8-I
3
odor of alcoholic beverages coming from the vehicle” and ordered Wasuge to put
the gearshift in park and exit the vehicle, which he did.
When Farley asked Wasuge “why he was asleep in the middle of the
roadway,” Wasuge said he was waiting for a friend and pointed at different houses
in multiple directions. 	Farley suspected that Wasuge had been drinking alcohol
because his breath smelled of alcohol; his speech was slurred; his eyes were
bloodshot, glassy, and watery; he was unbalanced when walking and standing; and
he generally appeared “dazed and confused.” Farley asked Wasuge if he had been
drinking, which Wasuge denied. 	After Wasuge performed poorly on the field
sobriety tests (FSTs),2 Farley placed him under arrest for DUI. 	Farley then
transported Wasuge to a hospital where a nurse drew his blood at 8:51 a.m. Later
testing of this blood determined that Wasuge’s BAC was .076 percent.
The State charged Wasuge with three counts of violation of state motor
vehicle laws: count 1 for DUI, count 2 for operating a vehicle without a functioning
ignition interlock device, and count 3 for driving while his license was revoked. At
trial, Wasuge stipulated that he was required to drive with a functioning ignition
interlock device, that his license had been revoked, and that he had previously been
convicted of a felony DUI offense (which elevated count 1 to a felony). 	Wasuge
testified that before being discovered by police on the morning of October 12, 2022,
he had drunk multiple beers with a friend in Seattle and had then attempted to drive
to his home in Sammamish. 	Wasuge claimed that his car “broke down” near his
2 Wasuge exhibited six of six clues on the horizontal gaze nystagmus test, five of eight clues on the
walk-and-turn test, and four of four clues on the one leg stand test. See State v. Mecham, 186
Wn.2d 128, 132, 380 P.3d 414 (2016) (explaining procedure and significance of field sobriety tests).
Wasuge was also unable to correctly count backward from 67 to 54.
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No. 85286-8-I
4
home on the road where officers later found him and that he tried calling friends
and family for assistance before eventually falling asleep.
The jury convicted Wasuge of counts 2 and 3 as charged, but it did not reach
a unanimous verdict on count 1 and instead convicted Wasuge of the lesser
included offense of being in actual physical control of a motor vehicle while under
the influence. Wasuge was sentenced within the standard range. He appeals.
II
A. 	Expert testimony
Wasuge argues the trial court abused its discretion by admitting expert
testimony from the State’s toxicologist regarding (a) the rate at which the general
population metabolizes alcohol and (b) the AMA’s recommendation that state
legislatures lower the per se BAC limit to .05 percent. We conclude the trial court
erred in both respects but the errors were harmless.
Under ER 702, expert testimony is admissible if it “would be helpful to the
trier of fact.” State v. Lewis, 141 Wn. App. 367, 389, 166 P.3d 786 (2007). Expert
testimony is helpful if “it concerns matters beyond the common knowledge of the
average layperson and does not mislead the jury.” State v. Thomas, 123 Wn. App.
771, 778, 98 P.3d 1258 (2004). Moreover, the expert’s testimony must be relevant,
meaning it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” 	ER 401, 402. 	Speculative testimony is
irrelevant, even if it comes from an expert. Lewis, 141 Wn. App. at 389. We review
a trial court’s evidentiary rulings for an abuse of discretion. 	City of Seattle v.
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No. 85286-8-I
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Pearson, 192 Wn. App. 802, 817, 369 P.3d 194 (2016). 	“A trial court abuses its
discretion when its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons.” 	State v. Griffin, _ Wn. App. 2d _, 544 P.3d 524,
529 (2024).
Our motor vehicle statutes prescribe two ways of showing that a person who
was driving or in control of a vehicle was “under the influence” of intoxicating liquor.
Under the “per se” prong, the State may simply prove that “the person has within
two hours after driving [or after being in actual physical control of the vehicle], 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.” 	RCW 	46.61.502(1)(a); 	RCW
46.61.504(1)(a). Alternatively, under the “affected by” prong, the State must prove
that “the person is under the influence of or affected by intoxicating liquor” while
driving or in actual physical control of the vehicle. 	RCW 46.61.502(1)(c); RCW
46.61.504(1)(c).
Here, the State elected to try Wasuge solely under the “affected by” prong
and did not charge him with violating the “per se” prong. 	Accordingly, to convict
Wasuge of either driving under the influence as charged in count 1 or its lesser
included offense of being in actual physical control of a motor vehicle while under
the influence, the jury—as instructed by the trial court—had to find that Wasuge
was “under the influence of or affected by intoxicating liquor” when he was driving
or in actual physical control of the motor vehicle. 	To satisfy this element of the
charged offense, the court’s instructions required the State to prove that Wasuge’s
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No. 85286-8-I
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“ability to drive a motor vehicle [was] lessened in any appreciable degree.” 	See
State v. Arndt, 179 Wn. App. 373, 386, 320 P.3d 104 (2014).
At trial, the State sought to prove that Wasuge was under the influence of or
affected by intoxicating liquor through its toxicologist, Stacy Dougher, who testified
about the results of Wasuge’s blood test and the general effects of alcohol on the
body. 	Two aspects of Dougher’s testimony are relevant on appeal. 	First, over
Wasuge’s objection, Dougher testified that after consuming alcohol a person’s BAC
will rise for a period of time that “varies from person to person and based on the
circumstances” for “[g]enerally, anywhere from 20 minutes up to two hours,”
followed by an “elimination phase” during which the body metabolizes (or burns off)
the alcohol at “a standard rate of .01 to .02 grams per 100 milliliter per hour for the
general population.” Second, when asked if “there is a blood alcohol level at which
everyone is affected such that they shouldn’t drive a vehicle,” Dougher responded,
“The per se in the state of Washington is 0.08 grams per 100 milliliters.” And when
asked, “What does the literature say about impairment at BACs of .05,” Dougher
replied, “There are several studies, particularly by the AMA . . . that talk about BAC
in terms of that [.05] and recommending that potentially as a per se limit as it can
be an indicator [of] impairment in the general population.” 	Dougher continued,
“They understand that people are potentially affected by alcohol at a level less than
that .08, and so they recognize that likely predominantly or all individuals are
impaired at a .05 instead, and they do recommend that as a better cutoff.” Wasuge
objected to this testimony as well.
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No. 85286-8-I
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Two cases illustrate the limits Washington courts have placed on the
admissibility of expert testimony to prove a person’s intoxication such as Dougher’s
testimony here. 	In the first case, Gerlach v. Cove Apartments, LLC, 196 Wn.2d
111, 115, 471 P.3d 181 (2020), the plaintiff successfully sued an apartment
complex for negligence after she fell from a decaying balcony. 	On appeal, the
apartment complex claimed the trial court erred in excluding evidence that would
have shown the plaintiff was contributorily negligent due to her alcohol intoxication,
such as blood test results showing she had a BAC of .219 percent approximately
an hour after the fall and expert testimony that “‘essentially everybody will be
impaired’” at the plaintiff’s BAC. 	Id. at 119-21. 	The Supreme Court rejected the
argument and held this testimony was “merely ‘speculative’” as to the plaintiff’s
behavior because it concerned “‘population averages’” and the “general effects of
intoxication” rather than “the effect it actually had on [the plaintiff].” Id. at 121-23.
The court noted that the expert did not know what particular time the plaintiff
consumed alcohol on the night in question or what her “‘burn-off’” rate, “‘absorption
rate,’” or “‘metabolic rate’” would be with regard to alcohol. Id. at 122.
In the second case, Pearson, the defendant was convicted of driving under
the influence of cannabis after the State introduced a blood test showing the
defendant had a tetrahydrocannabinol (THC) concentration of 20 nanograms. 192
Wn. App. at 806-09. The State also elicited testimony from a toxicologist that the
per se THC limit is 5 nanograms even though that limit was not yet in effect when
the 	defendant 	committed 	the 	alleged 	offense. 	Id. 	at 	817-18 	(citing 	RCW
46.61.502(1)(b)). 	On appeal, we held the trial court abused its discretion in
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No. 85286-8-I
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admitting this evidence because “[e]vidence of the per se legal THC limit not in
effect when the offense occurred was irrelevant to the central question at trial—
whether [the defendant’s] ability to drive was lessened in any appreciable degree
by her use of marijuana.” Id. at 818.
Applying these legal principles here, the trial court abused its discretion in
admitting the contested portions of Dougher’s testimony. 	Like the expert in
Gerlach, Dougher discussed the burn-off rate of .01 to .02 percent for the “general
population” without discussing the rate at which Wasuge would have metabolized
the alcohol. 	Other than the results of Wasuge’s blood test, Dougher admittedly
knew nothing about Wasuge, such as when he drank alcohol prior to his arrest,
how much alcohol he drank, the rates at which his body absorbs and metabolizes
alcohol, or the extent to which his driving was affected by alcohol. Nor did Dougher
perform a retrograde extrapolation—a forensic technique in which a toxicologist
uses a mathematical formula to calculate a person’s BAC at a prior point in time
using the person’s later verified BAC. See State v. Wilbur-Bobb, 134 Wn. App. 627,
632-34, 141 P.3d 665 (2006). 	Without this testimony about how Wasuge’s body
would 	have 	metabolized 	alcohol, 	Dougher’s 	testimony 	about 	the 	average
metabolization rate impermissibly invited the jury to speculate about the amount of
alcohol in Wasuge’s blood at the time he was driving or in physical control of his
vehicle. 	Thus, as in Gerlach, the testimony was “merely speculative as to
[Wasuge’s] behavior.” 196 Wn.2d at 123. The trial court abused its discretion by
admitting such testimony.
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No. 85286-8-I
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As to Dougher’s testimony about the AMA’s recommended lower per se BAC
limit, like the expert in Gerlach, Dougher impermissibly testified that “predominantly
or all individuals are impaired at a .05 instead” without specifying whether Wasuge
would be impaired at this BAC level. And similar to the expert in Pearson, Dougher
referred to a per se BAC limit that is not codified into Washington law as a “better
cutoff” than the existing limit of .08 percent for determining whether a person’s
ability to drive is affected by alcohol. 	To paraphrase our holding in Pearson,
“[e]vidence of the per se . . . limit not in effect when the offense occurred was
irrelevant to the central question at trial—whether [Wasuge’s] ability to drive was
lessened in any appreciable degree by” his consumption of alcohol. 192 Wn. App.
at 818. Because Dougher’s testimony about this hypothetical per se BAC limit was
not relevant to any issue in the trial, the trial court abused its discretion by admitting
it.
The State contends that Dougher’s testimony about the burn-off rate for the
general population was permissible under City of Seattle v. Personeus, 63 Wn.
App. 461, 819 P.2d 821 (1991). 	In Personeus, we held that expert testimony is
necessary regarding the rate at which alcohol burns off because this topic, unlike
the fact that alcohol burns off, is not a “matter of common knowledge about which
inexperienced persons are capable of forming a correct judgment.” 	Id. at 464
(quoting State v. Smissaert, 41 Wn. App. 813, 815, 706 P.2d 647 (1985)). We also
stated that the expert’s testimony in Personeus was relevant because it concerned
the burn-off rate “for someone of Personeus’ weight.” Id. at 465. Because the State
presented no evidence of the burn-off rate for someone of Wasuge’s weight,
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No. 85286-8-I
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Personeus further supports our conclusion that Dougher’s testimony about general
burn-off rates was irrelevant and speculative.
The State also argues that Dougher’s testimony about per se BAC limits was
permissible because our Supreme Court in State v. Salgado-Mendoza, 189 Wn.2d
420, 437, 403 P.3d 45 (2017), acknowledged that toxicologists can testify in DUI
cases about “the effects of alcohol on the body, how blood-alcohol is measured,
and procedures for roadside sobriety testing.” 	The State’s reliance on Salgado-
Mendoza is misplaced because the court there did not permit a toxicologist to testify
about suggested changes to a law under which the defendant was not charged.
Moreover, the court’s decision in Salgado-Mendoza predates its later decision in
Gerlach, which limits the extent to which experts may testify about how the average
person metabolizes alcohol or a person’s impairment at a given BAC.
The State further claims that Pearson is distinguishable because that case
concerned the ex-post facto application of a law whereas here “the State did not
present the AMA’s study about 0.05-percent alcohol concentration as the law of the
state” but rather to discuss “the science of how alcohol—and how much alcohol—
affects the human body and its ability to operate a motor vehicle.” This argument
ignores the portion of Dougher’s testimony at issue, where Dougher explained that
a prominent association of medical experts believes the legislature should amend
a statutory provision—under which Wasuge was not charged—in such a manner
that would automatically resolve the key issue in the trial: whether Wasuge was
under the influence of or affected by intoxicating liquor. 	As in Pearson, this
testimony “crosses into the forbidden territory in which testimony with an ‘expert’
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No. 85286-8-I
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imprimatur opines on the ultimate issue of guilt, which is for the trier of fact alone.”
See State v. Crow, 8 Wn. App. 2d 480, 497, 438 P.3d 541 (2019) (quoting United
States v. Sosa, 897 F.3d 615, 619 (5th Cir. 2018)).
The State’s reliance on inadmissible testimony in this case is especially
concerning, as it appears to be strategic. 	The State, as noted previously, did not
seek to convict Wasuge under the “per se” prong of RCW 46.61.502(1)(a) or RCW
46.61.504(1)(a). 	Nor did it present a retrograde extrapolation, which might have
been used to show that Wasuge’s BAC was .08 percent or higher while he was
driving or in actual physical control of the motor vehicle. See 32 L INDA M. CALLAHAN,
W ASHINGTON P RACTICE : W ASHINGTON DUI P RACTICE MANUAL §§ 1.4 at 8-9, 2.5 at
105-06 (2023-24 ed.) (noting that the State may use retrograde extrapolation to
show the defendant had a BAC of .08 percent or higher within two hours after
driving or being in actual physical control of a vehicle). Because the State did not
utilize this method of proving guilt, the trial court’s jury instructions do not refer to a
per se BAC limit or retrograde extrapolation.
Yet at the same time, the record repeatedly shows that the State attempted
to persuade the jury to convict Wasuge of being “under the influence” by arguing
that his BAC previously exceeded the per se limit. During voir dire, the State asked
jurors about their opinions on “proposed legislation to lower the legal limit to .05 in
the state of Washington.” In that way, the jury was “primed to view the prosecution
through a particular prism.” 	State v. Zamora, 199 Wn.2d 698, 712, 512 P.3d 512
(2022). 	Then, when Dougher testified that the AMA “recommend[s] [.05 percent]
potentially as a per se limit as it can be an indicator [of] impairment in the general
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No. 85286-8-I
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population,” the prosecutor asked, “And just to clarify, what do they recommend,”
after which Dougher clarified that the AMA recommends .05 percent as a “better
cutoff.” 	The State candidly admits in its brief that Dougher’s testimony about the
AMA’s recommendation was part of her “discussion of the science behind alcohol-
impaired driving and per-se legal limits.” (Emphasis added.)
The 	prosecutor 	then referred back to Dougher’s 	testimony in 	closing
argument, reminding jurors, “You also heard from Ms. Dougher that the [AMA] has
literature that people can be impaired or unable to drive at a .05. I want you to take
that into consideration.” The prosecutor also reiterated that the “elimination for an
average person is between .01 and .02” and asked the jury to apply that rate
retroactively based on Wasuge’s testimony that he stopped drinking at 3:30 a.m.
on the morning he was arrested. 	And finally, the prosecutor emphasized that
“everyone’s unsafe to drive at .08. 	And Mr. Wasuge was at a .076. 	He was just
below that limit.” 	The State’s dogged reliance on this evidence—relating to a
statutory limit that does not apply here—runs counter to the principle that a
prosecutor seeking to secure a conviction “may land ‘hard blows,’ but it may not
land ‘low ones.’” 	State v. Arredondo, 188 Wn.2d 244, 281, 394 P.3d 348 (2017)
(González, J., dissenting) (quoting Caro v. Smith, 59 Cal. App. 4th 725, 739, 69
Cal. Rptr. 2d 306 (1997)).
These evidentiary errors would warrant reversal if this were a close case.
But it is not. 	Under the nonconstitutional harmless error standard applicable to
evidentiary errors, Wasuge is not entitled to a new trial unless he shows that “‘within
reasonable probabilities, had the error not occurred, the outcome of the trial would
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No. 85286-8-I
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have been materially affected.’” 	State v. Goggin, 185 Wn. App. 59, 69, 339 P.3d
983 (2014) (quoting State v. Calegar, 133 Wn.2d 718, 727, 947 P.2d 235 (1997)).
“The improper admission of evidence constitutes harmless error if the evidence is
of minor significance in reference to the overall, overwhelming evidence as a
whole.” State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
Given the overwhelming evidence that Wasuge was under the influence of
or affected by intoxicating liquor, we are unable to conclude, as required to grant
relief, that within reasonable probabilities, had the error not occurred, the outcome
of the trial would have been materially affected. 	Police found Wasuge asleep
behind the wheel of a vehicle sitting in the lane of travel with the engine idling and
the gearshift in drive. 	Farley testified that he believed Wasuge was intoxicated
because he smelled the “strong, obvious odor” of alcohol on Wasuge’s breath and
observed that Wasuge’s balance was unsteady, his speech was slurred, and his
eyes were glassy, bloodshot, and watery. 	Robinson also testified that he could
smell alcohol on Wasuge’s breath and that he believed Wasuge was intoxicated.
Wasuge performed poorly on the FSTs, which Dougher testified are a reliable
indicator of alcohol consumption. 	Lastly, Wasuge admitted to drinking multiple
beers before driving the vehicle, and he had a BAC of .076 percent about two hours
after he 	was first 	discovered 	behind the wheel 	of 	his 	vehicle. 	See 	RCW
46.61.504(4)(a) (blood test results showing “an alcohol concentration above 0.00
may be used as evidence that a person was under the influence or affected by
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No. 85286-8-I
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intoxicating liquor”).3 	Because Wasuge has not shown that within reasonable
probabilities, had the error not occurred, the outcome of the trial would have been
materially affected, he is not entitled to a new trial on this basis.4
The remainder of this opinion has no precedential value. 	Therefore, it will
be filed for public record in accordance with the rules governing unpublished
opinions. See RCW 2.06.040.
B. 	Blood test results
Wasuge argues the trial court abused its discretion by admitting the test
results of his blood without proper foundation. We disagree.
Under 	RCW 	46.61.506(3), 	a 	blood 	alcohol 	test 	must 	be 	“performed
according to methods approved by the state toxicologist.” 	These approved
methods are described in WAC 448-14-020(3), which requires that the blood be
preserved (a) in a “chemically clean dry container” and (b) with “an anticoagulant
and an enzyme poison sufficient in amount to prevent clotting and stabilize the
alcohol 	concentration.” 	The 	regulation 	clarifies, 	“Suitable 	preservatives 	and
3 Although Wasuge argues that his statements and the blood test results were erroneously admitted,
we conclude the trial court did not err in admitting this evidence for the reasons discussed in parts
II(B) and II(D) below.
4 Citing State v. Quaale, 182 Wn.2d 191, 340 P.3d 213 (2014), Wasuge argues for the first time in
a motion for reconsideration that we should apply constitutional harmless error review rather than
the nonconstitutional harmless error standard applicable to evidentiary errors. Unlike the expert
witness in Quaale, Dougher’s opinion did not parrot the legal standard for determining guilt under
the court’s jury instructions or testify that Wasuge would be guilty under those instructions. Instead,
like the expert witness in Pearson, Dougher improperly attempted to show that Wasuge’s BAC
exceeded an inapplicable BAC limit. Notably, Pearson applied the nonconstitutional harmless error
standard applicable to evidentiary errors. 192 Wn. App. at 817. But even if the constitutional error
standard were applicable here, we likewise conclude, for the reasons discussed above, that the
State has established beyond a reasonable doubt that any reasonable juror would have reached
the same result absent Dougher’s improper testimony given the overwhelming evidence of
Wasuge’s guilt. See Quaale, 182 Wn.2d at 202 (“Constitutional error is harmless only if the State
establishes beyond a reasonable doubt that any reasonable jury would have reached the same
result absent the error.”).
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No. 85286-8-I
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anticoagulants include the combination of sodium fluoride and potassium oxalate.”
WAC 448-14-020(3)(b). 	To admit the blood test results, the State must present
“prima facie proof that the test chemicals and the blood sample are free from
adulteration that could conceivably introduce error to the test results.” Wilbur-Bobb,
134 Wn. App. at 630. 	Under this “relaxed standard,” the court “assumes the truth
of the State’s evidence and all reasonable inferences from it in a light most
favorable to the State.” State v. Brown, 145 Wn. App. 62, 71, 184 P.3d 1284 (2008)
(citing RCW 46.61.506(4)(b)). We review a trial court’s rulings on the admissibility
of blood tests for an abuse of discretion. Id.
Here, the State presented prima facie proof that Wasuge’s blood was
preserved in a chemically clean dry container. Farley testified that he removed the
vials from a sealed container provided by the evidence department, that the vials
had “white powder in the bottom of them,” that the vials were not expired, that he
handed the vials to a resident nurse, Emma Peers, and watched her draw
Wasuge’s blood into the vials, and that the blood did not leak from the vials. Peers
then testified that she followed her standard protocol for conducting a blood draw,
which included inspecting the condition of the vials and observing that they “have
the powdery substance in the bottom.” Moreover, the vials of Wasuge’s blood were
affixed with a manufacturer’s label stating the vials were “sterile.” The existence of
a powder in these sterile vials indicates they were chemically clean and dry.
The State further presented prima facie proof that Wasuge’s blood was
preserved with an anticoagulant and enzyme poison. Dougher answered “Yes” to
the prosecutor’s question, “And in this particular case, did the tubes contain an
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No. 85286-8-I
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anticoagulant and enzyme poison?” Dougher testified that the gray cap on the vials
signifies they contain sodium fluoride and potassium oxalate, which are premixed
and added into the vials by the manufacturer. 	The label on the vials also states
that they contain a combination of sodium fluoride and potassium oxalate. Dougher
further testified that Wasuge’s blood would have clotted and been untestable if the
anticoagulant was not present in the sample. Assuming the truth of this evidence
and taking all reasonable inferences therefrom in the light most favorable to the
State, the State satisfied the foundational requirements of WAC 448-14-020(3).
Wasuge argues the State did not make this prima facie showing because
Peers did not specifically remember the blood draw of Wasuge and did not know
the amount or chemical properties of the white powder in the vials. This argument
fails because the person who administers the blood draw does not need to know
these specific details so long as another witness can confirm the vials contained
the anticoagulant and enzyme poison. See Brown, 145 Wn. App. at 71 (recognizing
that WAC 448-14-020 does not require that a person “with firsthand knowledge
testif[y] as to what was contained in the vials used for [the defendant’s] blood
sample prior to the blood draw”). Here, Dougher confirmed that the vials contained
the anticoagulant and enzyme poison.
Lastly, Wasuge analogizes his case to other cases in which the State failed
to meet its foundational burden in admitting blood test results. Wasuge’s reliance
on these cases is misplaced because in those cases the State failed to present any
evidence that the vials contained one of the chemicals required by WAC 448-14-
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No. 85286-8-I
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020(3).5 	Because the State here presented prima facie evidence that the vials
contained both of these necessary chemicals, the trial court did not abuse its
discretion in admitting the blood test results.
C. 	Hearsay
Wasuge argues the trial court erroneously admitted a hearsay statement
made by an unknown individual who told Wasuge during a jail phone call “[y]ou
shouldn’t be driving people, you know what I mean?” We disagree.
Before Wasuge’s trial, the State indicated it would seek to admit a phone
conversation between Wasuge and an unknown third party that occurred while
Wasuge was in jail. 	During the call, the third party says, “But you shouldn’t be
driving people, you know what I mean?” Wasuge responds, “Yeah-yeah, I wasn’t
even drivin’ nobody.” 	Wasuge objected to the third party’s statement on hearsay
grounds, arguing that his response to the statement “doesn’t necessarily mean that
he’s adopted the truth of what’s asserted” because it could also mean “Whatever.”
The trial court overruled the objection because “a reasonable inference that also
arises from this is that [Wasuge] was acknowledging that he was driving but saying
‘Hey, I wasn’t driving anybody.’” 	Further clarifying its ruling, the trial court added
that “the jury needs to be instructed that what the other person says can’t be
accepted for the truth of what they say; it can only be used as context for what the
defendant says. But I think, arguably, he’s making an admission there that he was
the driver.”
5 See State v. Hultenschmidt, 125 Wn. App. 259, 266, 102 P.3d 192 (2004) (toxicologist testified
that enzyme poison was not required); State v. Bosio, 107 Wn. App. 462, 468, 27 P.3d 636 (2001)
(no evidence that sample contained enzyme poison); State v. Garrett, 80 Wn. App. 651, 653, 910
P.2d 552 (1996) (no evidence that sample contained anticoagulant).
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No. 85286-8-I
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The issue here is whether the third party’s statement—“But you shouldn’t be
driving people, you know what I mean?”—is inadmissible hearsay. A statement is
hearsay only if offered “to prove the truth of the matter asserted.” 	ER 801(c).
Additionally, a party-opponent’s statement offered against that party is not hearsay.
ER 801(d)(2). 	If the proponent uses a third party’s statement made during a
conversation with the party-opponent to add “context” to a party-opponent’s
statement that otherwise “would not make sense,” the third party’s statement is not
offered for the truth of the matter asserted and, therefore, not hearsay. 	State v.
Athan, 160 Wn.2d 354, 385, 158 P.3d 27 (2007); see also In re Pers. Restraint of
Lui, 188 Wn.2d 525, 555, 397 P.3d 90 (2017) (a testifying officer “may repeat
statements made during interrogation accusing a defendant of lying if such
testimony provides context for the interrogation”). 	We review de novo whether a
statement constitutes hearsay. 	State v. Carte, 27 Wn. App. 2d 861, 876-78, 534
P.3d 378 (2023).
Applying these legal principles to the third party’s statement at issue here,
we agree with the trial court that the statement was not hearsay. The State offered
the speaker’s statement “you shouldn’t be driving people” not to prove the truth of
the matter asserted (i.e., that Wasuge should not have been driving with other
people in the vehicle), but rather to explain why Wasuge felt compelled to respond,
“I wasn’t even drivin’ nobody.” Without the context of the other person’s statement,
Wasuge’s response denying that he drove other people before being discovered
by police would not make sense. Therefore, the trial court did not err in admitting
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No. 85286-8-I
19
the third party’s statement to add context to Wasuge’s statement. As the trial court
correctly ruled, such a statement is not hearsay.6
Moreover, even if the trial court erred in admitting the third party’s statement,
any error was harmless. See State v. Hill, 6 Wn. App. 2d 629, 647, 431 P.3d 1044
(2018) (hearsay rulings subject to harmless error review). 	Here, there is ample
evidence that Wasuge was driving the vehicle. 	Wasuge himself admitted on the
very same phone call that “they got me uh-uh drivin’ uh without a license.” 	See
Saldivar v. Momah, 145 Wn. App. 365, 400, 186 P.3d 1117 (2008) (an admission
by a party-opponent under ER 801(d)(2) may be used as substantive evidence).
Wasuge also testified at trial that he drove the vehicle to the location where he was
discovered by police. 	Farley testified that he found Wasuge sitting in the driver’s
seat of the vehicle with the key in the ignition and the gearshift in drive. Accordingly,
Wasuge was not prejudiced by any error in admitting the alleged hearsay evidence.
Wasuge contends that he was prejudiced by the introduction of the third
party’s statement because (1) the trial court failed to instruct the jury not to use the
third party’s statement as substantive evidence and (2) the State used the
statement as substantive evidence during closing argument. 	Wasuge’s first
argument is unconvincing because he did not request such a limiting instruction
6 Wasuge also relies on nonbinding federal authority to argue that the third party’s statement was
inadmissible. Those cases do not alter our analysis here because federal courts utilize a similar
approach to Washington courts in analyzing whether a third party’s statement can be admitted as
context for the defendant’s statement. See United States v. Montez, 858 F.3d 1085, 1089-90 (7th
Cir. 2017) (third party’s statements on wiretapped phone call with defendant were admissible
“because they were offered irrespective of their truth to explain [defendant’s] response”); United
States v. Smith, 816 F.3d 479, 481-82 (7th Cir. 2016) (confidential informant’s statements to
defendant during phone call were admissible in corruption trial “to show what [defendant] himself
understood the transaction to entail”). Additionally, because we agree with the trial court that the
third party’s statement is not hearsay, we need not reach the State’s alternative argument that the
trial court may have admitted the statement as an adoptive admission under ER 801(d)(2)(ii).
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No. 85286-8-I
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and cites no case law holding that the trial court must give such an instruction in
the absence of a request to do so. And Wasuge’s second argument fails because
the prosecutor did not use the statement in closing argument as substantive
evidence but rather to impeach Wasuge’s credibility by arguing, “[W]hy doesn’t he
explain that there’s car trouble?” Because there was no error here in admitting the
third party’s statement, and because any alleged error was harmless, Wasuge is
not entitled to a new trial on this basis.
D. 	Motion to suppress
Wasuge argues the trial court erroneously denied his CrR 3.5 motion to
suppress the statements he made to Farley—that he had not been drinking and
that he was waiting for a friend—before he was advised of his Miranda7 rights. We
disagree.
If a law enforcement officer does not provide Miranda warnings to a suspect
before conducting a custodial interrogation, statements made by the suspect during
the interrogation cannot be used as evidence in a criminal prosecution. 	State v.
Escalante, 195 Wn.2d 526, 529, 461 P.3d 1183 (2020). A person is in custody for
Miranda purposes if “a reasonable person in the individual’s position would believe
he or she was in police custody to a degree associated with formal arrest.” State
v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d 133 (2004). 	To determine whether a
person is in custody to a degree associated with formal arrest, courts examine the
totality of the circumstances, including “the nature of the surroundings, the extent
of police control over the surroundings, the degree of physical restraint placed on
7 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 85286-8-I
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the suspect, and the duration and character of the questioning.” 	Escalante, 195
Wn.2d at 533-34. Moreover, in analyzing whether Miranda warnings are required
where a defendant is temporarily detained and questioned on the basis of
reasonable suspicion of involvement in criminal activity, courts consider whether
the police employ coercive or deceptive interrogation practices. 	Heinemann v.
Whitman County of Wash., Dist. Court, 105 Wn.2d 796, 804-06, 718 P.2d 789
(1986). Whether Wasuge was in custody is a question of law we review de novo.
Escalante, 195 Wn.2d at 531.
Here, a reasonable person in Wasuge’s position would not believe they were
in police custody to a degree associated with formal arrest when Wasuge made the
statements at issue. 	The questioning occurred on a public street in view of other
motorists. Before asking Wasuge to perform the FSTs, Farley informed him these
tests were voluntary. Approximately 20 minutes elapsed between when the officers
initially encountered Wasuge and when Farley read him his Miranda rights. Nothing
in the record indicates the officers engaged in coercive or deceptive interrogation
tactics. 	Under these circumstances, Wasuge was not in custody for Miranda
purposes when he made the statements at issue.
To establish that he was in police custody to a degree associated with formal
arrest, Wasuge avers that the officers imposed a significant degree of physical
restraint by boxing in his vehicle with their emergency lights activated. While that
evidence 	might 	establish 	that Wasuge 	was 	”seized” 	for 	Fourth Amendment
purposes, the United States Supreme Court has squarely rejected the argument
that when police temporarily detain a suspect during a traffic stop for suspected
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No. 85286-8-I
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DUI, the suspect is necessarily in custody for Miranda purposes. 	Berkemer v.
McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). Washington
courts have routinely applied Berkemer in cases involving police questioning of
motorists.8 	Moreover, boxing in Wasuge’s vehicle was necessary to protect the
officers’ safety given that Wasuge could have accidentally accelerated the vehicle
upon being awoken by Farley. 	See Escalante, 195 Wn.2d at 537 (noting that
officers may take reasonably necessary steps during a Terry9 stop to protect their
personal safety). Contrary to Wasuge’s argument, boxing in his vehicle during this
brief DUI investigation did not elevate a traffic stop to a formal arrest.
Wasuge also cites our Supreme Court’s decision in State v. Sum, 199 Wn.2d
627, 631, 511 P.3d 92 (2022), notes that he is Black, and argues the trial court
“failed to consider whether Mr. Wasuge would have felt he was in custody under a
‘totality of the circumstances analysis,’ from the perspective of ‘an objective
observer’ who ‘is aware that implicit, institutional, and unconscious biases, in
addition to purposeful discrimination, have resulted in disproportionate police
contacts, investigative seizures, and uses of force against Black, Indigenous, and
other People of Color (BIPOC) in Washington.’” 	This argument fails because
Wasuge never asked the trial court to consider this issue and, thus, there is no
record upon which we may meaningfully review such a claim. 	The trial court did
not err in denying Wasuge’s CrR 3.5 motion to suppress the statements at issue.
8 See, e.g., State v. Ferguson, 76 Wn. App. 560, 566-67, 886 P.2d 1164 (1995) (defendant not in
custody for Miranda purposes during questioning at the scene of an accident); Heinemann, 105
Wn.2d at 806-08 (defendant not in custody for Miranda purposes when performing FSTs during
traffic stop for suspected DUI).
9 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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No. 85286-8-I
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E. 	Prosecutorial misconduct
Wasuge argues he is entitled to a new trial because the prosecutor
committed misconduct during closing argument by presenting evidence that the trial
court had excluded. We disagree.
Before trial, the court, at Wasuge’s request, ordered the State to redact a
portion of the audio and transcript of the 911 call in which the caller states that
Wasuge’s car was located “a little past Elizabeth Blackwell Elementary.” Contrary
to that order, the prosecutor played the unredacted audio to the jury during closing
argument. 	When defense counsel interjected, “Your Honor, can the audio be
stopped,” the trial court responded, “Please don’t object during closing” and told the
prosecutor, “Go ahead.” Before the prosecutor gave his rebuttal closing argument,
the trial court apologized to defense counsel “for telling you not to interrupt” and
said “I messed up what you were objecting to.” After telling the prosecutor, “don’t
play anything that’s not admitted into evidence,” the court ruled that the prosecutor’s
conduct was not “prejudicial enough to grant a mistrial” because defense counsel
“did object well enough that the jury didn’t hear elementary school, do you follow
me? Your ears were quick enough that I think you prevented it from being heard.”
To 	prevail 	on 	a 	prosecutorial 	misconduct 	claim 	where, 	as 	here, 	the
defendant objected at trial, the defendant must first show that the prosecutor’s
statements were improper. 	State v. Emery, 174 Wn.2d 741, 761, 278 P.3d 653
(2012). As the State correctly concedes, it was wholly improper for the prosecutor
to play the unredacted audio because it presented the jury with evidence that the
trial court had excluded. See State v. Gregory, 158 Wn.2d 759, 865-66, 147 P.3d
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No. 85286-8-I
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1201 (2006), overruled on other grounds by State v. W.R., Jr., 181 Wn.2d 757, 336
P.3d 1134 (2014) (prosecutor’s reference to excluded evidence during closing was
a “blatant[]” violation of a pretrial ruling and “strongly suggests that the argument
was flagrant and ill-intentioned”).
But even where a prosecutor’s conduct was improper, as it was in this case,
the defendant also “bears the burden of proving that the prosecutor’s conduct was
. . . prejudicial.” 	Emery, 174 Wn.2d at 756. 	The ultimate inquiry in this prejudice
analysis is, “has such a feeling of prejudice been engendered or located in the
minds of the jury as to prevent a [defendant] from having a fair trial?” 	Id. at 762
(quoting Slattery v. City of Seattle, 169 Wn. 144, 148, 13 P.2d 464 (1932)). 	We
examine the impropriety in the context of the total argument, issues in the case,
evidence, and instructions given to the jury. 	State v. Warren, 165 Wn.2d 17, 28,
195 P.3d 940 (2008). 	Moreover, we recognize that “[t]he trial court is in the best
position to most effectively determine if prosecutorial misconduct prejudiced a
defendant’s right to a fair trial.” 	State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d
1239 (1997) (quoting State v. Luvene, 127 Wn.2d 690, 701, 903 P.2d 960 (1995)).
Here, any prejudice from the introduction of the unredacted audio was
mitigated in multiple ways. 	According to the trial court, defense counsel’s “well
timed” objection drowned out the excluded statement and “prevented it from being
heard.” 	We may properly defer to this determination by the trial court. 	See
Stenson, 132 Wn.2d at 719. Additionally, the audio recording and transcript of the
911 call that were admitted into evidence both redacted the excluded statement
about the elementary school. Lastly, whether Wasuge’s vehicle was located near
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No. 85286-8-I
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a school was not a material fact or an element of the charged offenses; the key
issue was whether Wasuge was driving or physically controlling his vehicle while
under the influence of intoxicating liquor. On this record, Wasuge fails to show, as
he must, that the prosecutor’s improper conduct was prejudicial so as to entitle him
to a new trial.
F. 	Victim penalty assessment
Wasuge asks us to remand for the trial court to strike from his judgment and
sentence the $500 VPA. 	He correctly argues that recent amendments to RCW
7.68.035 provide that the VPA shall not be imposed against a defendant who is
indigent at the time of sentencing. LAWS OF 2023, ch. 449, § 1. The State does
not object to a remand for purposes of striking the VPA. 	We accept the State’s
concession and, accordingly, remand for the trial court to strike the VPA from
Wasuge’s judgment and sentence.
In all other respects, we affirm.
WE CONCUR:
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