News

The Court of Appeals (Div. II) agreed the Superior Court trial judge did not abuse their discretion by denying the defendant’s motion to bifurcate in a Felony DUI trial.  The defense wanted to hide the prior DUI offenses from the jury prior to the jury's decision on whether the defendant committed their most recent DUI.   If the jury convicted on the DUI, the jury would then get the evidence on the priors to decide whether the new DUI was a "felony" DUI.  The Court of Appeals agreed that because the existence of the defendant’s prior offenses was an element of the charged crime, the trial court did not abuse its discretion in denying the motion to bifurcate.

The Court of Appeals also affirmed that the prosecution need not call the blood-draw person to establish "foundation" for the blood draw.  The officer in the case noted the relevant facts and these were sufficient for the court to conclude---under a prima facie standard--that foundation was satisfiled.

Congratulations to DPA Jeremy Morris!  

  State v. Tysyachuk, COA No. 52448-1-II (Apr. 14, 2020).

Full Text of Case

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 Even though it is unpublished, we may attach it to briefing and cite to it under GR 14.1.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 4^th 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.

In State v. Jieta, the defendant was charged with malicious mischief in district court.  Over the next 15 months that court attempted 14 different pretrial hearings.  The problem was the Marshallese interpreter failed to appear by phone or in person repeatedly.  Of the 14 pretrials, the interpreter failed to appear 10 times.  On the defense motion, the trial court found CrRLJ 8.3 applied to the court as well as to the prosecution and that the mismanagement affected the defendant's rights.  The trial court dismissed the charges.  On appeal, the Superior Court affirmed and the Court of Appeals agreed.  The court is subject to CrRLJ 8.3 for mismanagement along with the prosecution.   

Whether the proper remedy for violation is dismissal remains an open question.  The COA declined to review that question.  

State v. Jieta (2020)

In a unanimous opinion, the State Supreme Court examined the language in RCW 46.61.305 to decide whether the phrase "when required" compels drivers to use their turn signal every time they turn or change lanes on a roadway.  They held it does.  The plain language of the statute requires drivers to ensure turns and lane changes are done safely and with an appropriate turn signal.  

The opinion reversed the lower court decision in State v. Brown where the Court of Appeals Div. II concluded a driver in a left-turn lane was not required to signal the turn.  Brown was stopped for the failure to signal and arrested for DUI after the stop.   

See the full case here: State v Brown 2019.pdf

The decision reversed State v. Brown, 7 Wn. App. 121, 432 P.3d 1241 (2019 Div. II)

Congratulations to DPA Andrew Clark and the Benton County Prosecutor's Office!

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.   

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.  

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.       

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

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 Kits. These 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

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)