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  • Thursday, October 17, 2019 1:06 PM | Anonymous member (Administrator)

    In State v Villela Oct 17, 2019 the Washington State Supreme Court unanimously agreed that the Washington law requiring all DUI arrests result in impounding of the vehicle is unconstitutional.   At issue in Villela was the fact that when a vehicle is impounded, the officer must conduct an inventory search to catalog the contents prior to releasing it to the tow company.  This protects the officer, the tow company, and the defendant from theft and allegations of theft.  

    In Villela, the inventory search turned up strong evidence of drug sales and the defendant has cocaine on his person.  Villela was charged with felony possession with intent to deliver.   At the trial court, the judge agreed the search violated the State Constitution Art. 1 Sec. 7 and suppressed the fruits of the inventory search.   In affirming that suppression, the State Supreme Court concluded that "an impound is lawful under article I, section 7 only if, in the judgment of the impounding officer, it is reasonable under the circumstances and there are no reasonable alternatives. Since the officer did not make that judgment, the impound was unlawful under our state constitution, and the trial court properly suppressed the fruits of the seizure."   

    Having struck down RCW 46.55.360, we revert to having officers decide in each case whether to impound, and whether any reasonable alternatives to impound are available.  The court identified only two broad categories for when an officer may reasonably impound a vehicle:

     (1) as evidence of a crime or; (2) when it is reasonable under the circumstances.

    Once the officer has decided to impound, the court evaluates whether reasonable alternatives to impound existed.  In Villela, the defendant provided the name of a nearby friend and said they lived nearby.  But because impound was mandatory, the officer never called the number.   

    Villela puts law enforcement back into the psychic business.  If officers impound the vehicle, the agency risks liability for the impound costs and the loss of use of the vehicle if a judge doesn't agree.  If the officer doesn't impound the vehicle, the agency risks liability for having the impaired driver hurt someone.  That is what led to Hailey's law in the first place.  In the Hailey French case from 2007--a jury concluded the officer should have done more to prevent a driver from going back to her car and driving after her arrest for DUI.  The impaired driver was a repeat offender but was driven home and given her keys back--with instructions not to drive until sober.   The jury awarded $5.5 million.    After the Hailey French case, repeat DUI drivers are now under a mandatory arrest requirement--that helps, but it still leaves a large number of "first time" offenders.  (out-of-state, tribal, and other DUI convictions are often not known to the arresting officer).   Because repeat offenders are going to see a judge before they drive again, officers can focus on first-time DUI arrests who will likely be back on the street within hours of their DUI stop.  In many cases, those drivers will still be impaired.   Prosecutors and law enforcement will be working to develop policies and training to assist law enforcement in making reasonable assessments regarding impounding DUI suspect vehicles.   

  • Monday, July 15, 2019 11:32 AM | Anonymous member (Administrator)

    Our State Supreme Court decided State v. Baird, concluding breath testing without a warrant is constitutional under the Federal 4th Amendment and Article 1, Sec. 7.   In the Court of Appeals case, State v. Nelson, the court analyzed the state constitution issue more closely and concluded breath testing is constitutionally valid without a warrant.   

    The defense sought review of that decision, but it was denied. State v Nelson - Terminating Review - - 7-11-2019.pdf The validity of breath testing in Washington is now settled law under both the Federal and the State constitutions.  

  • Friday, June 28, 2019 2:38 PM | Anonymous member (Administrator)

    In U.S. v. Gray, a June 26, 2019 unpublished opinion of the 9th Circuit, the court held that a Reno, Nevada search was legal when the officers smelled the odor of marijuana and conducted a search resulting in discovering a firearm in possession of the felon defendant.   Because possession of less than one-ounce of marijuana is legal in Nevada, the defendant argued the odor of marijuana did not justify a search. 

    The court disagreed, noting it is still an infraction in Nevada to smoke or consume marijuana in a public place or in a moving vehicle.  The officer reasonably believed the defendant was lying and could infer this indicated a guilty mind.   Once the drug dog alerted for contraband, the officers were justified in their belief that evidence of a crime was present. 

    The opinion is here:US v Gray Unpub MJ odor 18-10190.pdf

    In Washington, the odor of marijuana would also justify reasonable suspicion for an infraction and possible DUI impairment, but a search warrant would be needed after seizing the vehicle to search absent either consent or an exigent circumstance.       

  • Thursday, June 27, 2019 7:46 AM | Anonymous member (Administrator)

    In Mitchell v. Wisconsin, the US Supreme Court considered the case where a blood draw is performed on an intoxicated driver who is so impaired he cannot do field tests, gives a PBT of .24, then passes out before a breath test can be given.  Under these circumstances, the court reasoned "exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful."  

    The court did not automatically affirm the Wisconsin supreme court's conviction.  The court explained that under the circumstances of the case, "[police] may almost always order a warrantless blood test to measure the driver’s BAC without offending the Fourth Amendment."  But because Mitchell had not been given an opportunity to challenge exigency, a remand was needed. 

    As the dissent points out, that lack of showing was purposeful.  Wisconsin's primary argument was that their implied consent law justified the blood draw.   In its opinion, the Mitchell plurality (4-1-3) did not rely on the Implied Consent argument, instead they resurrected the exigency theory.  As the dissent points out, Wisconsin had earlier conceded exigency did not support the blood draw in this case, the theory was not argued below, and no evidence was offered to justify it.  This type of reasoning is not unprecedented.  An appellate court is not bound by concessions of the parties and they can consider any legal theory supported by the evidence that affirms the lower court.  

    Because this is a 4th Amendment case, and not an implied consent case, the reasoning in Mitchell should also apply to exigency circumstances in Washington.   The test for "the unusual case" that is not an exigency circumstance in Mitchell is unclear and will require additional litigation.  The remand to Wisconsin should provide some insight into how the courts will construe the defendant's burden.

    The full case is Mitchell v Wisconsin US Supreme Court Exigency 2019.pdf

    National Public Radio Story: June 27, 2019

     

  • Tuesday, June 18, 2019 3:44 PM | Anonymous member (Administrator)

    On June 12, the Washington Toxicology Laboratory was notified TriTech had recalled a batch of the blood vials used by law enforcement for investigation of impaired driving crimes.   The notice recalls Lot #8187663.  This batch of vials is packaged into Blood Evidence KitsThese small white boxes have Lot # 43937 printed on the outside and they would all expire on 7/31/2020.  All these evidence collection kits would have been shipped between 11/12/18 and 1/31/2019.                                                   

    The recalled blood vials will likely have no impact on cases in Washington for two reasons:  1) the chemicals that might not be present are only necessary for alcohol analysis.  WAC 448-14-020.  That means drug analysis is unaffected.  Since confirmation of drugs is a major reason for seeking blood analysis-a high proportion of the affected cases will be drug cases.  2) the two required chemicals (anti-coagulant and enzyme poison) are mixed together in the correct proportions, then placed into the vials.  That means if we have sufficient anti-coagulant, we also have sufficient enzyme poison.  Deducing if the blood is clotted is very easy--and a regular part of the blood analysis.  If the blood is not clotted, we can be assured sufficient chemicals are in that vial.  Because forensic scientists are routinely questioned about the presence of the chemicals, they always check to verify clotting.  If there were clotting, the analyst would immediately note the anomaly and the report would include that fact.   

    A copy of the recall, list of affected cases, and the WSP letter are attached here:

    Amended BD recall letter (manufacturer).pdf 

    Recall List of agencies affected.pdf

    WSP TLD Tube Recall notification.pdf

  • Monday, February 25, 2019 10:41 AM | Anonymous member (Administrator)

    The Georgia Supreme Court handed down Elliott v. State holding that a driver's refusal to take a breath test cannot be held against them in a criminal proceeding. The Georgia high court noted that while under U.S. Supreme Court precedent the Fifth Amendment does not prohibit using a refusal as part of a criminal proceeding, the Georgia Constitution's protection against compelled self-incrimination is broader. Writing for a unanimous court, Justice Peterson acknowledged the state's interest in prosecuting DUI offenses but that "the right to be free from compelled self-incrimination does not wax or wane based on the severity of a defendant’s alleged crimes." Elliott builds on a 2017 Georgia Supreme Court (Olevik v. State) which held the state's constitution prohibits both self-incriminating testimony but "also protects us from being forced to perform acts that generate incriminating evidence." 

    While the concurrence, noted that the decision was limited to use of refusal of a breath test criminal proceeding, it seems highly unlikely the ruling will not also apply to tests of a driver's blood and refusals as part an administrative proceeding concerning license suspension.  Likewise, the reasoning seems to also apply to a host of other acts including portable breath test refusals, field sobriety test refusals, and drug recognition refusals.  Georgia is on the same path as Massachusetts, which has extremely high refusal rates (over 80% refusals), because there is no legal consequence to a refusal. 

    The Georgia decision should have no effect in Washington State.  The Washington state constitution guarantees the right against self-incrimination under Article 1 sections 9. That right has been interpreted by our supreme court as “co-extensive” with the comparable federal constitutional right in the Fifth Amendment. The Washington constitutional provision is not broader, unlike the provision in Georgia.  See State v. Unga, 165 Wn.2d 95 (2008) citing State v. Earls, 116 Wash.2d 364, 374–75, 805 P.2d 211 (1991)

  • Saturday, February 16, 2019 4:27 PM | Anonymous member (Administrator)

    In State v. Nelson, Division III of the Court of Appeals took up the challenge left over after our Supreme Court decided State v. Baird.  In Baird, the State Supreme Court agreed breath testing is constitutional, but provided little analysis or discussion on the topic from a State law perspective.  This led the defense in Nelson (and the dissenting judge in this decision) to argue the issue was an open question.   Benton County argued the issue was decided in Baird and the majority agreed-noting the plurality plainly stated that position and Justice Gonzalez agreed in his concurrence.  

    The full opinion is here: State v. Nelson

    Congratulations to Douglas County for vigorously pursuing this DUI case through three trials and multiple appeals.   Special thanks to Kurt Parrish, who worked tirelessly to get this done.  Cheers!  

  • Friday, January 25, 2019 10:54 AM | Anonymous member (Administrator)

    In State v. Brown, Division III of the Court of Appeals considered the fairly mundane issue of the turn signal requirement.   In the case, the defendant properly signaled his movement from his travel lane to the left turn lane.  But the defendant didn't signal after getting into the travel lane (The court reasoned it was probably because straitening the wheel caused the turn signal to cycle off).   After the left turn, the officer stopped Brown for failing to signal the turn, and later arrested him for DUI.   In a 2 to 1 split, the Court held the stop was illegal.   The majority reasoned there wasn't enough time to comply with the law, there was no requirement to give the signal once the driver was in the left turn lane, and because there was no evidence the turn caused any public safety issue by affecting other traffic. 

    Read the full case here:  State v. Brown (Jan 17, 2019)

    The court's reasoning was largely based on its interpretation of legislative history.  Typically, a court would not engage in such an analysis unless the plain language of the statute is ambiguous. 

    The Benton County prosecutor's Office is considering an appeal to the State Supreme Court.  The opinion adds requirements not explicitly in the turn-signal statute, making it more difficult to enforce. 

  • Monday, December 17, 2018 8:54 AM | Anonymous member (Administrator)

    Effective December 30, 2018, the State of Utah drops its per se alcohol concentration from the national standard 0.08 down to 0.05 BAC.   Utah is the first state to join the .05 group--a standard embraced by most Western Industrial nations.  In 2013, the National Transportation Safety Board argued for adopting the .05 standard, noting that research proved that above the .05 concentration drivers are impaired and at a significantly greater risk of being involved in a crash where someone is killed or injured. The standard is expected to be a challenge for law enforcement officers, as they adapt existing field investigation techniques and move to the .05 per se standard.

    See news story: Washington Post Article

  • Monday, November 26, 2018 6:52 AM | Anonymous member (Administrator)

    In Early December, Michigan residents 21 and older will be allowed to use marijuana and marijuana edibles. They can "possess, use, transport, or process" up to 2.5 ounces (or 15 grams of marijuana concentrate). They can grow up to 12 marijuana plants and store up to 10 ounces in their private residences.  Like Washington, the State won't begin sales immediately.  Sales may begin in 2020.

    North Dakota, Missouri, and Utah all voted to allow Medical Marijuana sales.  Each has their own unique arrangement for medical marijuana control.

    As a Marijuana skeptic, Attorney General Jeff Sessions kept marijuana advocates at arms length--discouraging federal action on the drug.  His departure, and the leadership change in the House, suggest we may be looking at federal action soon.

    Michigan Story: Here

    Utah Story: Here

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