News

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)  

The State Supreme Court in Mecham faced an unusual DUI circumstance.   In Mecham the driver was wanted on a warrant.  The officer who stopped Mecham driving, promptly arrested him and read him his Miranda rights.  Shortly after, the officer smelled alcohol, noted the watery/bloodshot eyes, and signs of impairment.   Suspecting DUI, the officer asked the driver to perform FSTs.  The driver refused.  The officer obtained a warrant for blood and the test showed the driver had a .05 BAC three-hours after his arrest.  At trial, the prosecution argued the reason the driver refused was because he knew that performing these tests would show he was impaired.  Mecham was convicted and appealed.

The question in Mecham was whether the refusal to cooperate with FSTs after arrest could be used against the driver.  The legal analysis was whether FSTs invade a privacy interest under the State constitution or are an unreasonable search under the Federal Constitution.   

The lead opinion (4 votes) concluded FSTs do not invade a privacy interest under the state constitution and are not a search under the Federal.  That means FSTs are not constitutionally protected and the prosecutor can refer to them for whatever value them might provide in the DUI case--including consciousness-of-guilt.   

Justice Fairhurst partly joined in the lead opinion, agreeing that FSTs done before arrest are not a search.  Since this is the majority of DUI cases, this agreement is important.  However, that circumstance is not this case, so the statement is dicta and does not control future cases.   What controls is Justice Fairhurst's conclusion that the officer was not permitted to do FSTs after arrest.   Her reasoning is that the Terry exception does not apply after arrest.   That means she votes to reverse.

The justices favoring reversal (4 votes) were in two camps.  One camp argued FSTs are a search that required either a warrant or an exception to the warrant requirement.  (No discussion on the search incident to arrest option).  The other camp thought the constitutional versus common-law basis for the right to refuse here was overly technical.  They focused on the fact the officer told the driver the FSTs are "voluntary" and concluded this was misleading if it could be used against the driver at trial.  The opinion did not discuss the impact of the Miranda warning provided to Mecham, or why that warning was ineffective. 

Counting up votes, there were 4 for affirming the conviction, and five to reverse.  Yet the opinion says it affirms the conviction.   I'm guessing the defense moves for a re-count.  No matter the outcome, expect more litigation on FST issues.  

The full opinion is here: State v. Mecham