No Search Warrant Required!Jonathan Rands
This past summer 2019 the Washington Court Of Appeals began to define what an "exigent circumstances" is, when confronted with a DUI investigation and warrantless blood draws.
This past summer 2019 the Washington Court Of Appeals began to define what an "exigent circumstances" is, when confronted with a DUI investigation.
A brief history, the search of a person by way of a blood draw can only be done under three circumstances lawfully: by consent — freely and intelligently given, by search warrant, or by an exigent circumstance — an emergency, a now or never situation. These have been rare but are going to be present more often with this new case.
The 4th Amendment of the United States Constitution protects citizens from "unreasonable" search and seizure. What is reasonable is different from the protection of the Washington State Constitution. The State Constitution provides more protection. Through Article 1, Section 7 of the Washington State Constitution the protection of citizens from "unreasonable search and seizure" is elevated. There must be "lawful authority" for the search and seizure. This means that what is reasonable is not sufficient, rather the police need "lawful authority," authorization under the law. This means, they need probable cause reviewed by a judge, and issuance of a warrant. This is where the rule comes from for search and seizure by State Agents: Police must have a warrant, uncoerced consent to search, or exigency.
The first two are clear, but exigency has always been somewhat elusive and a pretty high standard, but this decision changes the understanding and law of what is "exigent."
The facts are set out below.
The defendant, Anderson, had a car accident and himself sustained injuries — lacerations to his face, liver, and kidney. He also suffered a collapsed lung, four rib fractures, a wrist fracture, and bleeding around his adrenal gland. While being attended to, and responding to the accident, multiple people smelled alcohol on Anderson. Anderson told a paramedic, he had had "a few drinks." The paramedic drew Anderson’s blood with no warrant, and no consent from Mr. Anderson. This was drawn at the scene.
Mr. Anderson was then transported to the hospital for treatment and, once there, his blood was again drawn. Subsequent testing of the first draw on scene, showed that his blood alcohol content (BAC) was 0.19 grams of alcohol per 100 milliliters of blood and that he had 2.0 nanograms of THC (tetrahydrocannabinol) per milliliter.
At the trial Toxicologist Asa Louis testified that a second blood draw taken at the hospital showed a BAC of 0.18. However, prior to trial, Mr. Anderson moved to suppress the blood results due to a violation of the rules of search and seizure: No Warrant, No Consent, and No Exigency. When the trial court denied Anderson’s request to suppress the blood draw results, the court made a number of undisputed findings, and they were similar to previous case, Inman. The Appeals Court in reviewing the trial court decision relied on Inman.
Like the Defendant in Inman, Mr. Anderson was in a high-impact collision resulting in serious injuries to himself, and although he was able to respond to police officer and medic’s questions at the scene, and make eye contact, and then also walk to the medic station with a firefighter, supporting him on either side, he also had serious injuries that required treatment. These included lacerations to his face and organs, fractures, a collapsed lung, and bleeding around his adrenal gland.
Similar to the Inman, case, medical treatment could have impacted the reliability of the blood draw results. As a result, a warrant was not practical because the delay caused by obtaining a warrant would result in the destruction of evidence or postpone Anderson’s receipt of necessary medical care. The totality of the circumstances establish that exigent circumstances existed to justify a warrantless blood draw.
This case has now reduced the emergency circumstances to "possible" exigency. This is because the Court ignores the advances in technology that make obtaining a warrant easier and quicker than ever. It is also basing it on the fact that treatment of a person "might" allow the blood alcohol, if any, to be eliminated from the blood, despite no medical evidence to this effect. Police can obtain a warrant by email, via terminals in their patrol cars. I have seen these executed from start to finish in less than 20 minutes.
The only way a person’s blood alcohol is compromised by treatment is if they are given blood, the blood given dilutes the alcohol in the system, which is likely why the Court relied on the general sentiment of "medical treatment" (unknown might I add) "could" have impacted the results. The Court’s ruling just watered the down the protection against unlawful search and seizure by speculation. Speculation has never had a place in the law, the lowest standard we operate under in Criminal law is Probable Cause. This case, being issued, from the Appeals Court of Washington is subject to the Supreme Court's review and endorsement, or reversal of what's exigent. Time will tell if the possibility of medical treatment, if necessary, and if given before a warrant can be obtained, might affect the blood results, will withstand the Supreme Court’s critical eye of review.