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

    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

    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

    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

    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

    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

    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

    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

  • Thursday, August 23, 2018 8:04 AM | Anonymous member

    Wisconsin state agencies won a $4.5 million judgment against an east side Milwaukee business and its owner over the sale of synthetic marijuana between 2011 and 2016, Attorney General Brad Schimel announced. Atomic Glass, at 1813 E. Locust St., was one of two businesses sued last year by the state departments of justice and agriculture, trade, and consumer protection over the sale of synthetic THC with such names as "Spice" and "Kush" in violation of a state law prohibiting fraudulent drug advertising. Milwaukee Circuit Judge Timothy Witkowiak last month found Atomic Glass and owner David Kelly of Eugene, Oregon, liable for selling 60,006 packets of synthetic cannabinoid products. General Schimel said the case was pursued as a civil forfeiture, rather than a criminal charge, because "the formula for synthetic drugs changes quicker than lawmakers can outlaw it..

  • Wednesday, March 28, 2018 1:40 PM | Anonymous member

    Division II of the Court of Appeals affirmed a Clark County Ordinance prohibiting recreational sales of marijuana in the unincorporated portions of their County.   Emerald Enterprises challenged the ordinance as unconstitutional, and as preempted by state law.  Both challenges failed.  The ruling is consistent with the prior Attorney General Opinion (2014 Opinion #2).  The ordinance remains in effect until revoked, or until the federal government removes marijuana as a controlled substance.

    The full case can be seen Emerald v Clark County 2018 Ban on MJ legal.pdf

  • Thursday, March 01, 2018 7:39 AM | Anonymous member

    The Governor's Highway Safety Association Report on Pedestrian Safety reports one consequence of marijuana use and fatalities: pedestrian deaths are up sharply in states with recreational marijuana while dropping in other states.   More data mining is needed to establish the connections between marijuana use and pedestrian deaths, but two are obvious:  Marijuana impaired drivers are most vulnerable to the effects of marijuana in low-stress low-speed environments--leading to slow speed crashes that most endanger pedestrians (expect also to see more hit-and-runs, more fender-benders, and more on-the-job injuries), and pedestrians under the influence of marijuana are more likely to put themselves in harm's way. 

    The full report is here:  GHA Report

     

    Pedestrian Fatalities in States with Legalized Recreational Marijuana  

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