Recent Opinions of Note:  Source: https://www.trafficresources.org/newsletter

Search of home leading to impaired driving arrest: Consent, exclusionary rule, attenuation doctrine.

The Wyoming Supreme Court provides an excellent discussion of several Fourth Amendment concepts in this case that has the unusual twist of being an impaired driving case that addresses the Fourth Amendment protections of a home. Wyoming Highway Patrol Trooper Undeberg received a report that a car had crashed into a ditch and that the driver appeared intoxicated. Upon running the plates, the Trooper drove to the home of the owner, Nancy Hawken. The Trooper encountered a man who was the owner’s husband. Upon asking to speak to Ms. Hawken, the Trooper followed Mr. Hawken into the mudroom of the home without invitation and without seeking permission. Ms. Hawken came to the mudroom and then went outside to talk with Trooper Undeberg after which Ms. Hawken was arrested for driving under the influence. Ms. Hawken filed a Motion to Suppress claiming Trooper Undeberg’s entry into the home violated the Fourth Amendment. In ultimately finding that Ms. Hawken’s Fourth Amendment rights were violated by the Trooper in entering the home without invitation and without asking permission, the Wyoming Supreme Court rejected the State’s argument that the Trooper entered with implied consent, noting that mere acquiescence is not enough to infer consent. The Wyoming Supreme Court then addresses the Exclusionary Rule and the three factors of the attenuation doctrine exception to the Exclusionary Rule. The Wyoming Supreme Court ultimately remands the case to the trial court to determine whether the Trooper’s unlawful intrusion required suppression. Hawken v. State, 2022 WY 77, 2022 Wyo. LEXIS 73 (June 16, 2022)

Wisconsin's OWI offenders graduated-penalty system found defective under North Dakota v. Birchfield.

In 2017, when Scott Forrett was charged with seventh offense OWI, Forrett had 5 prior convictions and one revocation of driving privileges for refusing a warrantless blood test upon suspicion of impaired driving. The Wisconsin graduated-penalty statute included as prior offenses suspensions or revocations of driving privileges for refusing to submit to a chemical test, including a warrantless blood test, upon suspicion of impaired driving. North Dakota v. Birchfield, 579 U.S. 438 (2016) held that a non-consensual, warrantless blood test was unreasonable under the Fourth Amendment. Fossett argued that the revocation of privileges was based on his refusal to submit to an unreasonable search (warrantless blood draw) and if the revocation of privileges had not been included as an offense, he would have faced a sixth offense OWI which carried lesser penalties. The majority opinion held that using the revocation of privileges for refusing a blood test as a prior offense resulted in Fossett being criminally punished for refusing an unconstitutional search in violation of Birchfield because the sentence for a seventh OWI offense was greater than a sixth OWI offense. The dissent disagreed noting that using a revocation as an offense is merely increasing the sentence for the present offense based on defendant’s prior criminal history, which has been repeatedly held not to be new jeopardy or improper punishment for the prior offense. State v. Forrett, 2022 WI 37, 2022 Wisc. LEXIS 51, (June 3, 2022)

You will find the 2022 full benchbook and DUI summary for 2022 on line, under the DUI benchbook page.  Both 2021 and 2022 are available to you. 

Members-more content has been added to the DUI litigation page.  Contact me if you have any questions.

The Special Master of New Jersey’s Frye hearing issued his Report of Findings of Fact and Conclusions of Law on 8/18/22. The Special Master found the State proved that DRE evidence meets the Frye standard and the reliability standard of N.J.R.E. 702, and should be admissible in evidence. Procedurally, as per the New Jersey Supreme Court’s Order establishing the Frye hearing before a Special Master, all counsel and amici must now serve and file their briefs with New Jersey’s Supreme Court within 30 days of today, and all responding briefs must be filed within 10 days thereafter. Oral argument will then be scheduled before New Jersey’s Supreme Court for a final determination. 

Dear members, 

Please see the Member only content for the most recent updates.  You can also review WSP rules page for the most recent rule change proposal.  

On March 23, 2017, the Governor of Utah signed into law House Bill 155, modifying Utah Code §41-6a-502 to prohibit people 21 and over from operating a noncommercial vehicle with a BAC of .05 g/dL or greater, rather than .08 g/dL. The law established this as a per se offense and carried an effective date of December 30, 2018. With the passing of this legislation, Utah became the first State to adopt an impaired driving per se BAC limit lower than .08. 

NHTSA has studied the impacts of the new law and found that overall the findings indicate that passage of the .05 per se law had demonstrably positive impacts on highway safety in Utah. The crash analyses highlighted reliable reductions in crash rates and alcohol involvement in crashes associated with the new law that were consistent with, or greater than, those observed or predicted by prior research. While the concerns about the impact of the law change on the State’s economy were certainly understandable, the data reviewed for this study indicate none of the potential negative effects of concern came to fruition. In fact, alcohol sales and per capita consumption appeared to continue their increasing trends under the new law as did tourism and tax revenues. Similarly, DUI arrests for alcohol did not climb sharply after the law went into effect as some had feared.

The change in the law had a demonstrable impact on how people view drinking and driving.  The "norms" around drinking and driving are changing. We need that change in Washington.  Too many people think it is perfectly fine to have a few drinks and drive; or that no real consequence will occur if they get a DUI; or that law enforcement officers are too overburdened to pull me over.  A change in the mentality around DUI needs to change. We all wear our seatbelts--why, because it's the law, but also because it is safe.  Safe driving should be the norm.  DUI driving should NOT be the norm. Click for more information on the NHTSA study.  

Washington road deaths reached a 20-year high in 2021, with 663 fatalities. Preliminary data for 2022 indicate the trend in fatalities continues to increase, with more traffic deaths in the first quarter compared with the same timeframe last year. To reverse the trend, the Washington Traffic Safety Commission (WTSC) issued a call to action for residents to work together to reinforce safe behavior for all road users. To get the message out, the WTSC is launching one of its largest public education campaigns in its history this summer.  For more information, please read here. 

In State v. Fraser, ___ Wn.2d ___ 2022 WL ___ (May 12, 2022), the Washington Supreme Court unanimously rejected constitutional attacks on the per se THC statutory DUI prong. The Court’s introductory section, summarizes the ruling as follows: In 2012, Washington voters approved Initiative 502, which legalized cannabis1 for recreational use, as well as created a regulatory system for cannabis. In doing so, the initiative modified the driving under the influence (DUI) law and created a prong under which a person can be convicted of DUI depending on the level of tetrahydrocannabinol (THC) found in one’s blood. Under RCW 46.61.502(1)(b) a person is per se guilty of DUI when one drives a vehicle and “[t]he person has, within two hours after driving, a THC concentration of 5.00 or higher [nanograms per milliliter (ng/mL)] as shown by analysis of the person’s blood” (hereinafter the “per se THC prong”). Douglas Fraser III was convicted of DUI under the per se THC prong for driving with a THC blood level of 9.4 +/- 2.5 ng/mL within two hours of driving.

On appeal, Fraser challenged the constitutionality of this prong of the DUI statute, claiming that the statute is not a legitimate exercise of the legislature’s police power, that it is unconstitutionally vague, and that it is “facially unconstitutionally overbroad because no scientific evidence supports the conclusion that there is a perse concentration of active THC at which all or most drivers would be impaired.” The Court held that this statute is constitutional and that it is a legitimate exercise of police powers as the limit is rationally and substantially related to highway safety. The research shows that the minimum 5.00 ng/mL limit appears to be related to recent cannabis consumption for most people (including chronic users), which is linked to impaired driving and highway safety, although there is no similar scientific correlation to impairment akin to the minimum 0.08 percent blood alcohol concentration (BAC) limit for alcohol.

Further, there is a reasonable assumption that having the limit will deter people who have recently consumed cannabis from driving, thus reasonably and substantially furthering a legitimate state interest. We hold that this statute is not vague because this specific 5.00 ng/mL limit does not lead to arbitrary enforcement, but rather it avoids arbitrary, erratic, and discriminatory enforcement.

Finally, the Court held that this statute is not facially unconstitutional because there exists a circumstance under which the limit can be constitutionally applied even under Fraser’s allegations of arbitrariness. Fraser’s own expert testified that some people are impaired at a THC blood level of 5.00 ng/mL. Therefore, when someone who is impaired at 5.00 ng/mL consumes cannabis and drives, this limit would not be unconstitutionally arbitrary in that circumstance. Accordingly, Fraser’s conviction was affirmed.

In footnote 1, of the Fraser Opinion, the Court also declared as follows: that the word “marijuana” is now a disfavored word, and that the favored word is “cannabis:” The court stated, "We recognize that using the term “marijuana” instead of “cannabis” is rooted in racism. See, e.g., Michael Vitiello, Marijuana Legalization, Racial Disparity, and the Hope for Reform, 23 LEWIS & CLARK L. REV. 789, 797-98 (2019) (“Advocates of criminalizing marijuana often made overtly racist appeals.”). The transition from using the scientific “cannabis” to “marijuana” or “marihuana” in the early 20th century stems from anti-Mexican, and other racist and anti-immigrant, sentiments and efforts to demonize cannabis. Id. at 797-99. Our legislature has recently acknowledged this discriminatory origin and has enacted a law to replace “marijuana” with “cannabis” throughout the Revised Code of Washington with various effective dates depending on the statute. See LAWS OF 2022, ch. 16, § 1. Accordingly, unless quoting language or referring to the text of a statute, we use “cannabis.”

Result: Affirmance of Snohomish County Superior Court conviction of Douglas Fraser III for DUI under the statutory per se THC prong for driving with a THC blood level of 9.4 +/- 2.5 ng/mL within two hours of driving. Full opinion here.

Reality--Anyone who drives impaired by alcohol, or any drug, is guilty of driving under the influence.  We have legal limits in Washington for "per se" prosecution purposes. Meaning if your BAC or blood results show that within 2 hours of driving you have a BAC concentration of .08 or above or THC concentration of 5.00 or higher [nanograms per milliliter (ng/mL)] as shown by analysis of the person’s blood, and the prosecution can prove you were driving, within that time period, with the per se levels, you are guilty.  But per se levels should not be confused with the level of impairment nor should anyone think you are ONLY impaired if you reach the legal limit.  A person can be impaired well under the per se levels and be prosecuted. 

Bottom line--DUI is an entirely preventable crime. You have to drink and then make a choice to drive. Understand that you can and will be prosecuted whether you are below or above the legal limit if the evidence supports that you were "impaired".  Do not read this case for the proposition that impairment starts at an .08 or a THC concentration of 5.00ng/mL.  Impairment is the key. 

--Melanie Dane

Members! The second quarter newsletter is posted on the members webpage under Newsletters.  Read up on Free CLE's, Traffic fatality and serious injury accident data nationally and in WA, legislative updates, open view and plain view cases law, and Utah's .05 BAC law and whether it is headed to our State.  Enjoy!