At the conclusion of 2016, the Washington State Supreme Court finally released what can be described as one of the most anticipated and important rulings in Washington DUI since the early 1960's.
The ruling below was two years in the making, despite it only being 21 pages, with most of those dedicated to the facts of two cases of Adams and Baird consolidated for the Appeal. Perhaps the brevity of the decision explains it being one of the poorest pieces of jurisprudence in the history of search and seizure cases.
To those of us seasoned in DUI defense, this DUI decision from our Washington State Supreme Court — our State’s highest court — was not surprising in its severely deficient analyses. As a contributing author on a brief submitted to the Court, submitted under is called Amicus (a party that is not counsel for the parties involved but involved as a friend of the court and provides additional authority and argument to the Court) I was disappointed, but not surprised given the historical "DUI exception to the Constitution" I have seen and read time and time again.
Traditionally, the Supreme Court almost always finds a way to "work around" the protection of rights of those accused of DUI. The Court has traditionally found comfort in citing to the carnage that DUI has inflicted upon the roadway. In short, the Court has created what has been labeled the DUI exception to the Washington State Constitution. The State Constitution protects all citizens regardless of the crime they are accused of, unless, the crime is DUI as a historical reading of the cases bears out.
In this instance, the Court found refuge in the 4th Amendment of the U. S. Constitution rather than a proper analyses of the increased protection under the 4th Amendment via the Washington State Constitution.
As a brief primer, the Federal Constitution 4th Amendment provides all citizens protection from police or rather any government actors' "unreasonable" search and seizure, where our State Constitution requires all government actors search and seizure to be pursuant to the authority of law. The question of whether the facts, circumstances, or behavior is "reasonable" NEVER enters into the analyses. Consequently, all citizens of Washington State in so far as their rights are concerned are protected against any and all search and seizure UNLESS there is authority of law (Traditionally a warrant or an exception to that warrant which is exigency or consent).
The analyses in Baird-Adams completely ignored this requirement, yet the required analyses are not novel. In virtually every other instance where the subject matter is not Washington DUI, the proper analyses have traditionally been done, and almost always protects the citizen from illegal searches regardless of how heinous the crime they are accused of, except in the DUI setting. In this case, once again, as you can see below, as the Court historically has done, the Court sought an end result at the expense of the proper analyses.
Consider the following portions of the opinion:
A breath test is a search under the Fourth Amendment and under article I, section 7. State v. Garda-Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (20 10). We presume that a warrantless search violates these constitutional provisions, and the State bears the burden to prove that one of the narrowly drawn exceptions to the warrant requirement applies. (Author’s note: Baird-Adams searches without warrant). Exigency is determined under the totality of the circumstances, case by case. In the cases before us, the State did not present evidence of exigency to justify a warrantless search. (Author’s note: No Breath Test is ever exigent). Therefore, we agree with the district courts that the State did not establish this exception applied in either case. Our conclusion that exigent circumstances did not justify the searches here does not, however, resolve whether the test result was admissible in Baird or whether evidence of refusal was admissible in Adams.
Notwithstanding this understanding of the law and required analyses for search and seizure, the Court looked to the United States Supreme Court for their 4th Amendment analyses rather than look to the State Constitutional Analyses.
The Supreme Court of the United States has recently decided this question for us: breath tests conducted subsequent to an arrest for DUI fall under the search incident to arrest exception to the warrant requirement. Birchfield, 136 S. Ct. at 2185. Because the search falls under an exception, as the defendants themselves acknowledge, there is no constitutional right to refuse the breath test. The Court held that because the "impact of breath tests on privacy is slight, and the need for BAC testing is great," the Fourth Amendment permits breath tests as a search incident to arrest for drunk driving. Because a breath test is a permissible search incident to arrest, "the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and [petitioner] had no right to refuse it." As this court has recognized before, and as the Birchfield decision further supports, we do not address the warning requirement on a constitutional basis, but as a right granted through the statutory process. Thus, while an arrestee has no constitutional right to refuse the breath test, he or she does have a statutory right under the implied consent law to refuse the test.
In what appears to be a "sleight of hand" maneuver, the Washington Supreme Court then turned its attention to the fact that the legislature provided the authority for the search or the refusal to search but never once analyzed it under Washington State Constitution. I say sleight of hand because state laws — DUI or not — are subservient to the protection of the State Constitution. The Court wrote:
We review the implied consent warning not on a constitutional basis, but rather as a right granted as a matter of grace through the statutory process. Washington's implied consent statute does not authorize a search; instead, it authorizes a choice between two options, to consent or refuse, with penalties attached for refusal. Washington's implied consent statute, RCW 46.20.308, says that drivers consent to a breath test by driving in Washington State:Any person who operates a motor vehicle within this state is deemed to have given consent ... to a test or tests of his or her breath for the purpose of determining the alcohol concentration ... if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503 (emphasis added). But the statute does not allow an officer to conduct a breath test unless the driver is arrested and actually consents to the test after being read statutory warnings. (4) If, following his or her arrest and receipt of warnings under subsection (2) of this section, the person arrested refuses upon the request of a law enforcement officer to submit to a test or tests of his or her breath, no test shall be given except as authorized by a search warrant (emphasis added). RCW 46.20.308
Functionally, the "implied consent" in the statute does not mean that police may require drivers to consent to the breath test simply because they drove. Rather, it means that in situations that the legislature has specified, if a driver chooses not to consent, the driver agrees that he or she will incur the consequences of that decision: But for a breath test to determine alcohol consumption under Washington's implied consent statute, for which a defendant has no constitutional right to refuse like in Gauthier, we do not have the same concerns regarding fairness.
[Driver’s] impliedly consent to this result by driving on the roadway and by driving under circumstances that amount to probable cause to believe they are intoxicated, and ultimately, they actually agree to this result when they refuse the breath test.
In essence, drivers waive the right to shield their refusal from use as evidence when they take advantage of the privilege to drive in exchange for their waiver. More importantly, the statute exists to protect the public from drunk drivers and reasonably relates to the public safety of the very roadways that the defendant was privileged to use. In this context, allowing a defendant's refusal to be admissible as evidence of guilt furthers the government's legitimate public safety goals.
Under the implied consent statute, a driver's refusal to consent to a breath test is admissible as evidence of guilt in a criminal trial. Such refusal is not a comment on the exercise of a person's constitutional rights because once an exception to the warrant requirement is found to apply, no constitutional right to refuse exists. Any right to refuse exists only as a statutory right by virtue of the implied consent statute.
These quotes demonstrate the Courts unwillingness to protect those citizens of Washington accused of DUI out of concern for the protection of the public over individual rights, but interesting only in the DUI setting.
Case in point, the crime of rape is a devastating crime and personal intrusion on victims, but this very court did not see fit to protect the public the same as the public in DUI cases. Rather, in the case of Gauthier (a case this Court in this ruling references and cites to in this opinion) they protected the right of the accused and suspected perpetrator from undergoing a saliva swab of his mouth for DNA testing—a much less intrusive search and seizure than breath testing, because the officer lacked "authority of law" the court found the search very much unintrusive (even less so than breath testing) but without a warrant unlawful! In examining almost every case that is non-DUI in Washington, a researcher will see the Court's agenda when it comes to those accused of DUI versus almost every other crime.
The dissent in Baird-Adams DID get the analyses right, only the problem is not enough Justices on the Court of 9 agreed with her. She wrote:
...forcing a person to move his or her lungs to obtain and capture alveolar, or "deep lung," breath constitutes a search, also. I also agree with the lead opinion and the concurrence that such a search must be authorized by a warrant, unless a specific exception to the warrant requirement applies. The lead opinion is certainly correct that the Supreme Court is the final arbiter of whether a breath test fits within the search incident to arrest exception to the Fourth Amendment's warrant clause. But this court, and this court alone, is the final arbiter of whether a breath test fits within the search incident to arrest exception to article I, section 7 of the Washington Constitution. And there can be no dispute that article I, section 7 of the Washington Constitution provides greater protection of individual rights-including article I, section 7's right to privacy-than does the Fourth Amendment. Hence, we need not adopt Birchfield's newly discovered categorical exception to the Fourth Amendment's warrant requirement for all breath tests here in Washington.
In her opinion, the lower courts got the right ruling and the reversal of their decisions should not have happened. In my opinion, every student of the law would write this analyses for their Bar admission test, and they would be giving a passing grade, but since the subject matter is DUI in this "real world" and decisions are not always as sterile as they should be, the blinders and the stigma of DUI cases appear for even the most astute and knowledgeable lawyers and Judges become fixated on the result rather the process and analyses.
We are a State and Country of rules and rights. Our rules are designed to ensure the protection of our rights, and when a Judiciary seeks to ignore those rights or avoids the enforcement of those rights by relaxing the rules that protect them, because they don’t like who or what is being protected or it's unpopular among the voters that got them there, then we are on dangerous ground. No matter how unpopular the rights may be, they must be protected.
I began this writing, this decision is one more example of another in a long line of exceptions when it comes to DUI prosecutions. Rather than engaging in mental gymnastics to get to the end result, at the expense of rights, shouldn't a line in the sand be drawn? Why not just do what seems to be the implied perception?—Create a law that Drinking and Driving in any amount is illegal. Paradoxically, that is unlikely because as a Nation and State based on rights and freedoms the government cannot legislate something to be criminal "just because." There must be something dangerous about it such that criminalization is required and since drinking and driving is not per se dangerous. It becomes a dangerous activity once a certain threshold is passed but that is different for everyone, or until or unless a person reaches a particular blood alcohol concentration. As a result, the citizens will not stand for such government interference with citizen rights.