News

Barely two months after hearing oral argument, the U.S. Supreme Court issued opinions in several joined blood/breath cases.  Following their decision in Minnesota vs. McNeely, the question remained as to what legal effect the Implied Consent Warnings play in compelling blood and breath testing.  The McNeely case did not involve that issue.   In Birchfield v. North Dakota (blood case) the court held the state may not punish suspects who refuse invasive blood testing.  In Beylund v. North Dakota (blood case) the court remanded to the state supreme court to decide if the taking a blood test under the implied consent warning was not "voluntary" in that it threatened sanctions for refusal--including the crime of Refusal.  Interestingly, the court also left open the possibility that DOL civil sanctions for blood under implied consent survive, independent of the criminal sanctions for refusal. See FN 9.  

In Bernard v. Minnesota, the court held that the less invasive breath testing search is reasonable under the search -incident-to-arrest exception.  This permits the state to demand breath tests and punish suspects who refuse to cooperate--including by the separate crime of refusal.   

Overall, the case is good news for Washington.  We adapted to McNeely quickly and the holding in these consolidated cases is already law here.  Their reasoning might also be helpful to our state supreme court, who are currently considering a similar issue in State v. Baird.  The case is due out soon.

The full case is here: U.S. v. Birchfield (June 23, 2016)  

The State Supreme Court in Mecham faced an unusual DUI circumstance.   In Mecham the driver was wanted on a warrant.  The officer who stopped Mecham driving, promptly arrested him and read him his Miranda rights.  Shortly after, the officer smelled alcohol, noted the watery/bloodshot eyes, and signs of impairment.   Suspecting DUI, the officer asked the driver to perform FSTs.  The driver refused.  The officer obtained a warrant for blood and the test showed the driver had a .05 BAC three-hours after his arrest.  At trial, the prosecution argued the reason the driver refused was because he knew that performing these tests would show he was impaired.  Mecham was convicted and appealed.

The question in Mecham was whether the refusal to cooperate with FSTs after arrest could be used against the driver.  The legal analysis was whether FSTs invade a privacy interest under the State constitution or are an unreasonable search under the Federal Constitution.   

The lead opinion (4 votes) concluded FSTs do not invade a privacy interest under the state constitution and are not a search under the Federal.  That means FSTs are not constitutionally protected and the prosecutor can refer to them for whatever value them might provide in the DUI case--including consciousness-of-guilt.   

Justice Fairhurst partly joined in the lead opinion, agreeing that FSTs done before arrest are not a search.  Since this is the majority of DUI cases, this agreement is important.  However, that circumstance is not this case, so the statement is dicta and does not control future cases.   What controls is Justice Fairhurst's conclusion that the officer was not permitted to do FSTs after arrest.   Her reasoning is that the Terry exception does not apply after arrest.   That means she votes to reverse.

The justices favoring reversal (4 votes) were in two camps.  One camp argued FSTs are a search that required either a warrant or an exception to the warrant requirement.  (No discussion on the search incident to arrest option).  The other camp thought the constitutional versus common-law basis for the right to refuse here was overly technical.  They focused on the fact the officer told the driver the FSTs are "voluntary" and concluded this was misleading if it could be used against the driver at trial.  The opinion did not discuss the impact of the Miranda warning provided to Mecham, or why that warning was ineffective. 

Counting up votes, there were 4 for affirming the conviction, and five to reverse.  Yet the opinion says it affirms the conviction.   I'm guessing the defense moves for a re-count.  No matter the outcome, expect more litigation on FST issues.  

The full opinion is here: State v. Mecham

In State v. Salgado-Mendoza, No. 46062-9 (filed May 24, 2016), the court of appeals considered the case of a breath test case where the defendant requested disclosure of expert witnesses under CrRLJ 4.7.  As with past practice, the prosecutor subpoenaed a forensic scientist for the DUI trial to discuss the preparation of the simulator solution.  Because availability of toxicology witnesses is rarely known far in advance of trial, the prosecutor disclosed the eight names of the possible witnesses that might appear.  At trial, the defense objected to the expert who appeared.  The defense argued they would need a continuance to prepare.  The defendant however, objected to any continuance citing his speedy trial right.   The Court of appeals held that the prosecution violated its discovery obligations.  However, the obligation was a new one--that arising under CrRLJ 4.7(d), governing material held by others.   Under the COA reasoning, the prosecution should have made efforts to obtain the name of the witness and informed the court when that effort was not successful.   By imposing upon the prosecution the obligation to notify the court, the COA imposed upon the prosecution the need to perfect the record below (which included scant information on what efforts the prosecution took) and held the prosecution responsible for the failure to advise the court so it could take action before speedy trial was implicated.  

The matter was remanded for a new trial.    The full opinion is below.  Appeal is under consideration.

In Kansas, it is a crime to withdraw consent during a DUI investigation.  The state supreme court was asked to consider whether this follows the reasoning following Missouri v. McNeely.  The court in Kansas v. Ryce held a criminal defendant has no constitutional requirement to waive their rights during a DUI investigation to allow testing.  To the extent such consent was provided, it was coerced where the defendant was informed they could be charged with a crime.  This means all prior Kanasa DUI cases involving either a consent or a refusal are reversed.   Whether Kansas can prevail under the federal doctrine of "good faith" is unknown.   

The full case is here:          Full Case

Reversing the Snohomish County District Trial Court, Division One held that the former RCW 46.20.308 requires that the implied consent warning for breath tests must also include the THC warning.  If that warning is not included, the breath test must be suppressed.   

The full case is here:    http://www.courts.wa.gov/opinions/pdf/722603.pdf  

The US Supreme Court granted review on the topic of breath and blood refusals in Bernard v. Minnesota, 14-1470, and Birchfield v. North Dakota, 14-1468.  Minnesota and North Dakota are among the thirteen states criminalizing refusal of a test for alcohol content when probable cause for DUI exists.  The challenge in these cases attempts to extend the reasoning in the Minnesota v. McNeely decision from April 2013.  In the McNeely decision,  the court erased decades of case law by concluding the normal dissipation of alcohol is, alone, not an exigent circumstance justifying the warrantless seizure of blood evidence.   Because McNeely did not consider either the implied consent laws or breath testing--many state laws remain largely unchanged.     

The petitioner Bernard was arrested on suspicion of drunk driving and later charged with first-degree test refusal.  That crime carries a mandatory minimum three year jail term. Bernard argues imposing criminal penalties for refusing to submit to a warrantless breath test violates the Fourth Amendment. The Minnesota Supreme Court disagreed, reasoning that a warrantless breath test is reasonable as a search incident to arrest.

The petitioner in Birchfield failed a field sobriety test administered after he drove his car off the road, and later refused to submit to a blood-alcohol test. The North Dakota Supreme Court affirmed Birchfield’s conviction on two grounds. First, that attaching criminal penalties to a test refusal in this context is reasonable; and second, that the privilege to drive may be conditioned on the driver’s consent to the test under implied consent.

A Minnesota article discussing the appeal is here: Minnesota Lawyer Dec 17 2015.pdf

Report Examines Marijuana Positive Drivers Involved in Deadly Crashed

Olympia, WA – Since Washington legalized the adult use of recreational marijuana, many have asked the Washington Traffic Safety Commission how this change may impact traffic safety. The Commission took the first step toward understanding the issue by releasing a new report today providing a detailed examination of marijuana positive drivers involved in deadly crashes.

This is the first time in Washington that crash data on marijuana positive drivers has distinguished between drivers who test positive for THC, the impairing substance in marijuana, and those who have residual marijuana, called carboxy, in their system from prior use which may have occurred days ago. This study categorizes marijuana positive drivers into mutually exclusive categories based on the total results of their blood tests.

In Washington, impaired driving is the leading factor in traffic deaths. This includes drivers who are impaired due to alcohol, marijuana, and other drugs—prescription or illegal.

Observations:

Most drivers received both alcohol and drug testing. The State Toxicology Laboratory tested blood samples for both alcohol and drugs for 1,773 drivers involved in deadly crashes between 2010 and 2014. Of these 1,773 drivers tested, nearly 60 percent (1,061) were positive for alcohol, marijuana, or drugs.

Most drivers who were tested had multiple substances in their system. Among drivers with positive test results, the largest percentage showed combinations of alcohol, marijuana, and other drugs. Approximately one-third revealed alcohol only (34 percent), and eight percent tested positive for marijuana only.

Marijuana is the most frequently found drug. Not including alcohol, marijuana continues to be the most frequently-occurring drug among drivers involved in deadly crashes. By itself or in combinations with alcohol and other drugs, 349 drivers tested positive for marijuana.

The report further separates these drivers by those positive for THC and those positive for carboxy-THC.

More drivers tested positive for THC. In 2014, of the 89 drivers who tested positive for marijuana 75 of them (84 percent) were positive for THC. This is much higher than 2010 when 81 drivers were positive for marijuana and 36 (44 percent) of those were positive for THC.

Half of THC positive drivers are above 5 ng/ml. In 2014, among the 75 drivers involved in deadly crashes who tested positive for THC, about half exceeded the 5 ng/ml per se limit.

THC is increasing while alcohol is decreasing. The 75 THC-positive drivers in 2014 comprised the highest number of THC-positive drivers in any year during the five-year period studied. The 51 drivers who only had alcohol in their systems (and were over the per se limit) in 2014 were the lowest number of such drivers in the study period.

Most THC positive drivers are young men. When looking at drivers positive for THC, either THC-only or in addition to alcohol above the per se limit, nearly 40 percent were men ages 16-25.

Drivers combining marijuana and alcohol showed increased risk. Drivers who combined alcohol and marijuana were frequently unbuckled, unlicensed and speeding.

THC positive drivers were more likely to be involved in daytime crashes. A majority of deadly crashes involving drivers with THC alone, or in combination with other drugs, except alcohol, occurred during the daytime hours. A majority of deadly crashes involving drivers with alcohol above the per se limit, alone or in combination with marijuana or other drugs, occurred during the nighttime hours.

The full report, “Driver Toxicology Testing and the Involvement of Marijuana in Fatal Crashes, 2010-2014,” is available at www.wtsc.wa.gov.

The Washington Traffic Safety Commission embraces Target Zero—striving to end traffic deaths and serious injuries in Washington by 2030, but we can’t get there without you. Driver Sober and be part of our Target Zero Team. Remember, drunk, drugs or high, it’s a DUI. For more information, visit www.targetzero.com.

The State Supreme Court reversed the Court of Appeals requirement that search warrant authorizations by the court for blood must also explicitly authorize testing of the blood.  In reversing the court of appeals, the Supreme Court explains, "A warrant authorizing a blood draw necessarily authorizes blood testing, consistentt with and confined to the finding of probable cause."  The court went on to reject Martines' argument that a finding of alcohol only permits testing for alcohol.   Only when alcohol is expressly NOT found, should the court look for explicit probable cause to test for drugs, since drugs may always be found with alcohol. 

The full case is available here: State v Martines 2015 Supreme Court.pdf    

Courts around the nations began employing 24/7 programs to cut jail costs and improve compliance with conditions of release.   In 2013, Washington piloted the 24/7 program and in 2015 expanded its use in Ch. 36.28A RCW.   However, a Montana court ruled the 24/7 program was an unconstitutional search and seizure under the 4th Amendment.   The Montana Supreme Court reviewed that decision, concluding that while it is a search--the search is reasonable in light of the reduced privacy expectations of the defendant and the well established concerns with impaired driving.  

A copy of the full opinion is available here: 

The Washington State Patrol introduced the new Dreager instrument to prosecutors, judges, and defense attorneys this week in Spokane.   New instruments were delivered to the region this week and will be deployed into field locations in the coming weeks.   For questions related to the Draeger deployment in Spokane, contact Trooper Technician Jon McKee or Sgt. Brandon Villanti.