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Good Win: Unpublished Division 3 Case Decided 3/10/2020: LEO need not offer breath test prior to acquiring SW for Blood

Tuesday, March 10, 2020 11:17 AM | Anonymous member (Administrator)

Read it here: http://www.courts.wa.gov/opinions/pdf/362680_unp.pdf

State v. Stenberg (Consolidated with Shergur); Division III, decided 3/10/2020

Issue Presented: Whether law enforcement must offer a breath test prior to obtaining a SW for blood.

Answer: No

Author’s Notes: We already had Entzell that held similarly. However, this is a solid win for us. Even though it is unpublished, we may attach it to briefing and cite to it under GR 14.1. Do not abuse this holding however; advise officers to explain the reason they went outside ICW; there is always a reason; e.g., thought it was drugs, serious injury to others, child in the car, language barriers, impairment inconsistent with blow, noncooperative (although easy to offer breath if know they will refuse), serious property damage, IID required, sophisticated defendant/priors, refused FSTs, need for medical treatment, etc.

Facts:

Stenberg stopped for traffic violation, LEO smelled odor of intox from breath, conducted FSTs, and obtained a SW for blood. Results were BAC of .18 g/100mL. Stenberg moved to suppress arguing 4th A and Art 1, Sect 7, and ICW.

Shergur stopped for traffic infraction, odor of into from breath, conducted FSTs, and obtained a SW; BAC of .16. Shergur moved to suppress for same reasons.

Analysis:

  • ICW (RCW 46.20.308)) section (4) clearly contemplates allowing a search for blood; Seattle v. St. John- “an officer may obtain a blood alcohol test pursuant to a warrant regardless of the implied consent statute.”
  • Defense argued that both Schmerber and Birchfield required the LEO to offer a breath test first; Court held that LEOs complied with state and federal constitutional requirements by obtaining warrants for the blood draws.


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