News

In Blomstrom v. Tripp several DUI defendants challenged the trial court's authority to order random Urinalysis while released on bail pending resolution of the DUI charges.  The defendants objected to the pre-trial testing and sought a Writ of Review in Spokane Superior Court.   The Superior Court denied review by writ--forcing them to wait until convicted and proceed by appeal.  The defense appealed the denial of the writ ruling to the State Supreme Court and that court reversed with a 5-4 split. 

While the State Supreme Court ruling is actually a procedural decision:  "Should the Superior Court have issued a writ and considered the issue?"  it is much more influential because the decision as to whether or not to grant a writ involves deciding whether or not the trial court plainly erred.   The State Supreme Court decided the trial court had plainly erred--and the Superior Court should have issued a writ to correct that error.  The State Supreme court reasoned that Washington's State Constitutional right to privacy was violated by the testing, there is no exception to allow it, and they refused (again) to adopt the Federal "Special Needs" exception. 

That means that even though the matter will be remanded, the Superior Court must follow the analysis provided here--leaving little mystery as to the outcome. 

The full case is here:  Bloomstrom v Tripp Urinalysis Pre Trial 2017.pdf

The Court of Appeals concluded earlier this year that blood seized under a search warrant does not require the Implied Consent Advisory regarding the right to an independent test.  State v. Sosa, 198 Wn. App. 176 (2017).  The court also concluded that refusal of the Portable Breath Test (PBT) was admissible and it was not ineffective assistance for the defense attorney not to object.

The State Supreme Court denied review on August 2, 2017.  

Congratulations to Theresa Chen (Walla Walla DPA) for her fine work on the appeal.    

In a surprise line item veto, Governor Inslee struck the January 1, 2019 effective date of HB 1614 and signed it into law.  That makes the new law effective 90 days after his signature--approximately July 26, 2017!  

The new law expands the scope of existing prohibitions on using electronics while driving.  In general, use of any handheld device is severely restricted anytime a vehicle is on a roadway.  That includes stop lights, intersections, and stopped traffic.    The hope is that we can deter some drivers (particularly young drivers) from using electronics and reduce the massive increase in roadway collisions due to distracted driving.   The full text of the legislative bill (without veto language) is here  

Bravo! 

In a thoughtful opinion, Division I of the Court of Appeals affirmed the King County RALJ court finding a driver who consents to a blood test is not required to receive the implied consent warnings.   Citing to both Division III (State v. Sosa) and the state supreme court (State v. Murray), the court rejected the defense argument that the implied consent warnings apply to blood tests after the September 2013 legislative amendments to RCW 46.20.308.  The trial court had concluded the warnings were required, suppressing the blood test results.  The City of Kent obtained a Writ of Review and the trial court decision is now reversed.   Congratulations to Michelle Walker for her work!

The slip opinion is here: Kent v Kandler 2017 Voluntary Blood Legal.pdf 

In State v. Sosa (Div. III, filed March 16, 2017) the court put to rest an argument that a search warrant for blood requires the officer to provide the defendant with any advice of rights.   In particular, the defense argued the officer must advise the defendant of the right to an independent test.   The Sosa court disagreed, concluding that prior cases explicitly held that such rights are statutory, and the requirement to provide them flowed only from the statutes.  With those provisions now repealed in the face of the search warrant requirement--the need for warnings is gone.  

The defense has filed a notice of appeal on the case.  Likely based on the secondary ruling in the case, that the PBT refusal was admissible in light of the implied consent statute and State v. Baird.   While the refusal is likely admissible, that reasoning is not likely to be affirmed.   

The full case may be viewed here: State v Sosa COA 2017.rtf

Utah is poised to become the first state to move to a 0.05 alcohol per se level.  The legislature passed the bill and it is headed to the Governors desk, where he states he wills sign the bill into law.  The full story is here: News Story 

The Colorado State Supreme Court was asked to decide what law enforcement officers must do with marijuana after it is seized. In the specific case herein, the defendant was acquitted of charges and state law required officers to return the marijuana.   Under federal law, this is "distribution" and illegal.

The Colorado Supreme Court concluded the federal government intended to preempt state law on controlled substances--which compels a finding that it is illegal to return marijuana.  The full case is here:  Preemption 2017 CO.pdf

Just in time for Christmas, the State Supreme Court issued its long awaited (2 years!) decision in the State v. Baird and State v. Adams cases.  The prosecution won.  At issue were the admissibility of the breath test refusal and breath test result following the US Supremes' decision in Minnesota v. McNeely (4/13/2013). 

In a 4-2-3 split, the Baird court reversed the Superior Court's suppression of evidence.  Key in the decision was the fact that while our court was considering the issue--the US Supreme Court issued its opinion in North Dakota v. Birchfield.  Birchfield rejected the defense arguments under the federal constitution.  The Baird court was left with deciding the issue under the state constitution.  

The 4-2 plurality opinion is consistent with decisions rejecting similar arguments in other states.

The full opinion may be read here: State v. Baird

Congratulations to Brandy Gevers (King County Prosecutor's Office)! 

In Robison, the suspect was driving under the influence of alcohol and possibly other drugs, including marijuana.  The officer arrested Robison and read the standard implied consent warnings for breath. Consistent with the practice at that time, Robison was NOT read the warning for THC because no breath test device detects THC, the psychoactive ingredient in marijuana.   

On appeal, the Court of Appeals concluded this was improper.  The COA believed the implied consent allows the officer no latitude in giving the warnings and they must all be provided each time.  Because officers routinely do not read CMV warnings to non-CMV operators, do not read Under-21 warnings to those over-21, the ruling was a significant threat to many DUI cases.  Snohomish County appealed based on a number of contrary cases that permit the officer to exclude warnings irrelevant to the particular suspect.    Andrew Alsdorf (Snohomish County DPA) and Dan Heid (Amicus for WSAMA) briefed the issues for the State.  On review, the State Supreme Court agreed with the State.  Irrelevant warnings need not be provided during the implied consent warnings.    The full opinion is available here: State v Robison SC 2016.pdf

Barely two months after hearing oral argument, the U.S. Supreme Court issued opinions in several joined blood/breath cases.  Following their decision in Minnesota vs. McNeely, the question remained as to what legal effect the Implied Consent Warnings play in compelling blood and breath testing.  The McNeely case did not involve that issue.   In Birchfield v. North Dakota (blood case) the court held the state may not punish suspects who refuse invasive blood testing.  In Beylund v. North Dakota (blood case) the court remanded to the state supreme court to decide if the taking a blood test under the implied consent warning was not "voluntary" in that it threatened sanctions for refusal--including the crime of Refusal.  Interestingly, the court also left open the possibility that DOL civil sanctions for blood under implied consent survive, independent of the criminal sanctions for refusal. See FN 9.  

In Bernard v. Minnesota, the court held that the less invasive breath testing search is reasonable under the search -incident-to-arrest exception.  This permits the state to demand breath tests and punish suspects who refuse to cooperate--including by the separate crime of refusal.   

Overall, the case is good news for Washington.  We adapted to McNeely quickly and the holding in these consolidated cases is already law here.  Their reasoning might also be helpful to our state supreme court, who are currently considering a similar issue in State v. Baird.  The case is due out soon.

The full case is here: U.S. v. Birchfield (June 23, 2016)