Due to a recent court decision, law enforcement officers no longer have to advise you you're entitled to independent blood testing in the event of a DUI arrest, further eroding the rights of DUI accused citizens.
The Legal Docket with Dillon Honcoop, on KGMI 790 and KGMI.com.
Well, he says a court decision is taking rights away from people in certain situations. This is in the realm of DUI defense, and local DUI attorney Jonathan Rands joins us on the program this morning. Welcome Jonathan, and let's just jump right in. I mean, I'm sure that catches peoples attention. What, my rights are going away? Well, this is a fairly specific thing, but it could certainly in some specific cases have a pretty big impact from what you've been telling me so far.
In every single blood case ever administered in the state it's going to have a potential impact. And good morning, by the way, thanks again for having me.
Yeah, thanks for being here.
It's been a little while. We've had a little bit of a gap and lots has happened.
Yeah, absolutely. So you say blood case, that means any sort of DUI case that involves a blood sample from the person accused of DUI, right?
It's probably limited to the case of a blood sample taken by way of warrant.
I think there's a little bit of background that's necessary so we can see how this develops, but this is a published decision from Division Two of the Appeals Court of Washington. Sorry, Division Three, not Division Two, my mistake. And Division Three handles all appeals out of lower courts, essentially east of I-90 on the east side of Washington state, that's sort of the invisible line. Division One is north of 405, for lack of a better boundary, and south of that, over to the 90 parallel, or the 90 boundary would be Division Two.
What that means is that an appeals Division Three is not necessarily binding on the lower courts in Whatcom County. It is persuasive, or what's considered highly persuasive authority, but it's not as though it comes out of Division One, which mandates that the rule be followed. So what we have, again as a way of the backdrop, some years ago, you and I talked a lot about this, was the United States Supreme Court decision that said if you're going to draw blood from a person you have to do it by way of exigent circumstance, or by consent, or by warrant. What happened with that was, in the Department of Licensing arena, where implied consent in Washington used to be implied consent for a blood draw until that case came down, the statute then had to be rewritten. It had to be rewritten mostly for the benefit of the Department of Licensing, because they were no longer able to suspend or take action against drivers licenses that were done by way of implied consent blood draws. At least that's my firm belief.
So, what happened was, the implied consent statute used to say a person has given consent to breath/blood a test, for testing for purposes of alcohol concentration. Before the United States Supreme Court said a warrant was necessary, if there was a situation where a person was not able to give a breath sample because of the location or because of the circumstances of maybe being treated in the hospital or something, then it was implied consent for blood. Well, that decision changed that and it basically said you can no longer draw blood unless you have a consent and it would be different consent then that which is considered implied.
So the statute was rewritten, and the statue was rewritten in 2013, and the case that we're dealing with now was a case where Mr. Sosa, is his name, had an accident and ultimately was under arrest for DUI after investigating that accident, and was at a hospital. As a result of being at a hospital the officer went and got a warrant and ultimately drew his blood pursuant to that warrant. Now, at the time of his arrest the state had changed, the legislature had changed the law. They spent a little bit of time talking about it, but what they did was they eliminated in implied consent the reference to blood. What it reads now, or post 2013, is that any person who operates a motor vehicle within the state is deemed to have given consent, subject to the provisions of RCW 46.61.506, which is the DUI statute, to a test or test of his or her breath for the purposes of determining alcohol concentration. Now, that is the line which changed everything, because they eliminated the virgule, which is the slash that used to exist between breath/blood.
So, for purposes of implied consent for breath only, for purposes of the DoL's mandates, I think, the word blood was eliminated. What this court has done is interpreted that to mean that they must have intended that a person no longer was entitled to an alternative test, because, let me finish this statute. This statute talks about the right to an alternative test when asked to give a breath sample, but it's limited to breath.
So, in the Sosa case the officer got a search warrant and before the search warrant was executed, being before Mr. Sosa's blood was drawn, the officer did not give him any additional warnings. The officer did not say what the statue says, or says it should say, and that is that your blood's being taken, it's being taken by a virtue of a warrant, and you have the right to an alternative independent test by a qualified person of your choosing. The officer did not say that to Mr. Sosa, and ultimately he went to trial, there was a preliminary motion asking to eliminate the breath sample from evidence because his statutory right to be advised of the right to an independent alternative test was violated. That motion was denied and ultimately he went to trial, and then when he went to trial he was convicted, and then the appeal followed, because that's the way that it has to work. You have to litigate all the issues first.
Since this happened east of the mountains, it went up to ... by the way, it was a vehicular assault case where somebody was injured, and so it started in superior court and then the appeals court for superior court in that jurisdiction was Division Three. And their analysis was that because the statute no longer references an alternative test for blood cases, because they've eliminated that, they must have meant, the legislature must have intended to remove that right. The language that's somewhat disturbing is this paragraph and this statement from the case, it says, "Had Mr. Sosa's defense taken place prior to the 2013 amendment, he undoubtedly would have been entitled to advice about independent blood testing, but this is no longer so. Our case law adjusting the implied consent warning has always been based on statutory principles and not constitutional grounds. Rights that exist purely as a matter of legislative grace can be taken away." That is exactly what this court did, is they removed a right, it's a long standing right, and it's always been interpreted as a right.
I find it disturbing because a right is a right is a right. Yes, it's not a constitutional right, but by case law this court has now, with the stroke of a pen or the typing of a few words, has said, "Oh, this is how we're interpreting it, and you don't have any rights at all anymore with respect to this." What's more confounding for me is that they try and say, "And by the way, a blood test is not like a breath test that needs to be double checked." So, they justify the position by saying a breath test is one which is highly fallible, which is kind of interesting when you think about all of the evidence that talks about how accurate and reliable they are.
So, this court turns around and, if I might quote it, I just have to find it here in a moment. They say that a blood draw like him can not show that he's similarly situated to individuals whose breath is tested for alcohol concentration, because blood and breath testing are different. Legally the two are different, unlike a blood test a breath test can be procured without judicial oversight as part of a search incident to arrest. That's sort of true. Factually, breath testing is uniquely ephemeral, I like that word. Unlike blood, a sample can not simply be retested. Now, that's true. To further complicate matters, the manner in which breath testing is done must meet rigid criteria less the results be unreliable.
Last I checked, blood testing has to meet similar rigid testing requirements, and I think that their analysis that because they're different, and because one's fallible because it has to follow certain procedural safeguards doesn't hold water. But it's how they justify their position, and unfortunately it's not unusual for these types of what I'm going to call mental gymnastics in the realm of DUI, rights or eliminations thereof, and it's become a really disturbing trend in the law. I mean, the last decisions that have come out of our higher courts have done nothing but erode the rights of DUI accused citizens for no other reason than they're just trying to be end result driven.
It's ... well, and we've talked about this before, culturally it's kind of a scarlet letter thing, right? And I think that extends to how people view peoples’ rights and process and all of that when these go on. Because DUI is bad, DUI is frowned upon, DUI is an embarrassment. So people tend to cling, not as closely as they should, to the importance of rights and the constitution and due process, because there's this sense of guilt that just is implied with it that isn't necessarily fair at all, and that's what our system is supposed to battle against.
We're talking with local DUI attorney Jonathan Rands here this morning on The Legal Docket here on KGMI. So, does this basically set a new precedent for this issue, then? Is this a done deal, or what happens next?
Well, I think what happens next is there ... because this is a interpretation which may very well be juxtaposed to the other two divisions ... See, what we don't have yet is Division One or Division Two finding or having a ruling on this particular issue. If, for instance, a case goes before one of those two divisions and they find differently, then we have what's called a split within the divisions, and you can't have a split amongst the higher courts, you need to have one rule that's applicable to everybody. If that were to happen then the Supreme Court would have final say in this analysis as well.
I think what we're going to have to do is have situations where, the situation, a blood draw happens and potentially a law enforcement officer is going to be aware of this decision and say, "Well, I don't need to advise you of anything else, I've got a warrant." And then it gets litigated and we would have to have a judge at one of the other divisions say that, "No, I disagree. I think that it's a fundamental right, and even if it's a statutory right, the case law over the years and years, and it's designed for equal protection." They need to have a different decision, and then if we have a split in a division then it would go ultimately up to the Supreme Court, and they would have final say on the issue, which would then be binding statewide.
Now, it doesn't necessarily have to stop here either, because Mr. Sosa can petition to the Supreme Court for a review of this, and I'm not sure if he has or not, it was a March 16 decision, he should have 30 days in order to do that, so we're still within that filing deadline. If he does that and the Supreme Court looks at it and says this is an issue of statewide importance and fundamental importance, they can accept it and then we would go forward, or there'd be an appeal on that and they would have final say after that. However, I'm not saying I have a whole lot of confidence in the Supreme Court recently, because they've issued, like I say, the last string of decisions have not been favorable of DUI defendants' rights. Unfortunately it's sort of cut the other way.
What really is disturbing about this for me is that a medical blood draw, or the way that a blood draw is done and the way that the blood alcohol concentration is analyzed, there's a fundamental difference in quality, scientifically speaking, versus that which is good enough for evidentiary purposes. You would think that if a person's liberty is at stake in terms of how good and what the quality of testing needs to be, it should be at scientific standards. But from the draw out, it is not. It's at different standards, it's standards set by statute, and they're standards that have ease of law enforcement officers ability to procure evidence in mind, versus obtaining the most highest quality evidence available.
That's what's disturbing, because they're eliminating a test where a person can have an absolute right to challenge the integrity and quality of the law enforcement officers. If they had a qualified person of their own choosing, who happens to draw it and happens to do an analysis that is scientifically superior, and what happens then? What happens in that situation where that superior test is free of adulterates, is free of contamination and gives the blood sample results that's under the legal limit? So, the person has been deprived of knowing that right.
Now, if you're a lawyer and you're in the realm, you probably would have the presence of mind to say, "Hey, I'd like an alternative test." And then that's a different scenario, but as it stands right now, the officer may not have to remind a person who's not a lawyer and doesn't know these rights.
Jonathan Rands, local DUI attorney with us on The Legal Docket right now. We do have to take a time out, but when we come back briefly, laws are changing. Recently we talked about some proposed changes to laws here in Washington state. Obviously if we're talking about DUI defense it's really all about the law in the first place, but Washington state isn't the only place where a legislature is in session right now. Another state changing its laws with regard to DUI. More on that when we return here on The Legal Docket on your Sunday morning. Thanks for being here.
The Legal Docket with Dillon Honcoop. Breaking news, stimulating talk. This is KGMI. [crosstalk 00:15:41]. The Legal Docket with Dillon Honcoop, on KGMI 790, and KGMI.com.
We're back, we continue here this morning. Dillon Honcoop with you, and this is The Legal Docket. Talking this half hour with local DUI defense attorney Jonathan Rands on the phone with us this morning, and we've been talking about changes to how a law's approached based on a case that ... a ruling basically, as you've descried it, if I could boil this all down categorically, it's taking away a right or an opportunity of someone in a specific kind of case. We've been talking about when someone's blood is drawn in a DUI case and how the court has viewed that in the specific ... Speaking of ruling, or of laws changing, it's not just rulings, it's the legislature in different places. We talked recently about what's going on here in Washington state and some potential changes that could be headed our way. Washington not the only state with a legislature in session right now, they're busy at it in Utah, as well. Jonathan, fill us in on what happened in Utah. They're upping the ante, apparently, on going after people who are driving under the influence, or so they say.
Well, it's been criticized for being a new law that is going after the social drinker, the responsible drinker. As you know, because I've told you about it but maybe not all of the listeners know, Utah's been the first state where the legislature has lowered the legal limit from that of a .08, which is universally applied across the United States, to a .05 limit. So, they're down .03 below a .08, I'm not great at math but I certainly know that 8 minus three is five. And that's done by the legislature. As you know, the legislature works for the people, the legislature is thought to be the will of the people, and the legislature in that particular state has found that they, for whatever reason, whether they have support or whether they don't have support, but ultimately it passed the sessions and I don't know the effective date, but I would not be surprised if it's some time in early September that the drinking law and driving law ultimately has been changed from a .08 to that of a .05
That's disturbing in the sense of taking away rights, I guess is what we're talking a little bit about here today. Not that it's taking away the right ... I mean, nobody has the right to drink and drive, don't mistake me on that, but ultimately the law does not criminalize consumption of alcohol and mixing it with driving, as long as a person in Washington is not effected by alcohol, nor over the legal limit. Every state has a different type of effected by statute, and I don't know what Utah's is, but what they have done is they've gone below the universal limit of understanding when everybody is effected by alcohol.
You see, we came to a .08 I think in the late 90s as a result of, a response to traffic fatalities, but it was at least supported by universal scientific research over dozens of years of studying alcohol, that at a .08 everybody universally begins to be effected. Some are more effected than others, some are highly effected at a .08, but the unmistakable line in the sand is that at a .08 that is where we can point to a level where people should not be operating a motor vehicle. That's not the case with the limit of a .05. Some people may be highly effected at a .05, other people may not be effected at all, in which case the effected by is no longer the standard. I can call it the standard in Washington, because we can say if a person's effected by or at a .08. You can pretty much say if they're effected by it they must be at a .08, or of they're at a .08 they must be affected by. But not the case out of state anymore.
It's basically being criticized for targeting somebody that goes out, has dinner, has a glass of wine, has no more than a glass of wine, is not effected by the consumption of the alcohol, but now they're ultimately going to be snared in a law that prohibits their behavior for no rational, real reason, other than somebody else might be effected.
And you've said before, why not make it zero, and we've talked, we've done shows about this issue. We're out of time, unfortunately, but it'll interesting to see how this goes in the state of Utah where they've made this change.
Local DUI attorney Jonathan Rands with us this morning filling us in on this and other things. His practice is in Fairhaven, 360-306-8136 is the phone number to reach his offices. Again, in Fairhaven, practices right here locally, right here in Whatcom County, he knows the specific laws, the specific players involved. 360-306-8136, again is the phone number. The website is JRandsLaw.com, and I encourage you to check out the website for tons of info of different kinds of cases and the kinds of things Jonathan does, and the kind of ideals his has as he approaches his practice of DUI defense. Jonathan, thanks so much for your time this morning.
Thanks for having me.
The Legal Docket with Dillon Honcoop.