State v. Olsen
| Decision Date | 03 August 2017 |
| Docket Number | No. 93315-4,93315-4 |
| Citation | 189 Wash.2d 118,399 P.3d 1141 |
| Parties | STATE of Washington, Respondent, v. Brittanie J. OLSEN, Petitioner. |
| Court | Washington Supreme Court |
Catherine E. Glinski, Glinski Law Firm PLLC, P.O. Box 761, Manchester, WA, 98353-0761, for Petitioner.
Michael Edward Haas, Jefferson County Prosecuting Attorney, P.O. Box 1220, Port Townsend, WA, 98368-0920, James Mitchell Kennedy, Clallam County Prosecuting Attorney, 223 E. 4th St., Ste. 11, Port Angeles, WA, 98362-3000, for Respondent.
Krysta Alexis Liveris, K & L Gates, 925 4th Ave., Ste. 2900, Seattle, WA, 98104-1158, Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2008, Douglas B. Klunder, Attorney at Law, 102 Viewcrest Rd., Bellingham, WA, 98229-8967, as Amicus Curiae on behalf of ACLU.
Pamela Beth Loginsky, Washington Association of Prosecuting Atty., 206 10th Ave. S.E., Olympia, WA, 98501-1311, as Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.
¶1 At issue in this case is whether a court may require a probationer convicted of driving under the influence (DUI) to submit to random urinalysis testing (UAs) for controlled substances. In particular, this issue centers on whether this testing violates DUI probationers' privacy interests under article I, section 7 of our state constitution.
Random UAs do implicate a probationer's reduced privacy interests. But here, where urinalysis was authorized to monitor compliance with a valid probation condition requiring Olsen to refrain from drug and alcohol consumption, the testing does not violate article I, section 7. Accordingly, we affirm the Court of Appeals.
¶2 The facts are undisputed. In June 2014, Brittanie Olsen pleaded guilty in Jefferson County District Court to one count of DUI, a gross misdemeanor offense under RCW 46.61.502. The court imposed a sentence of 364 days of confinement with 334 days suspended. As a condition of her suspended sentence, the court ordered that Olsen not consume alcohol, marijuana, or nonprescribed drugs. Over defense objection, the court also required Olsen to submit to "random urine analysis screens ... to ensure compliance with conditions regarding the consumption of alcohol and controlled substances." Clerk's Papers (CP) at 5.
¶3 Olsen appealed to Jefferson County Superior Court, arguing that the random UAs requirement violated her privacy rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. She contended a warrantless search of a misdemeanant probationer may not be random but instead "must be supported by a well-founded suspicion that the probationer has violated a condition of her sentence." CP at 7. The court agreed, vacated Olsen's sentence, and remanded to the district court for resentencing without the requirement that Olsen submit to random urine tests.
¶4 The State appealed, and the Court of Appeals reversed, holding that "offenders on probation for DUI convictions do not have a privacy interest in preventing the random collection and testing of their urine when used to ensure compliance with a probation condition prohibiting the consumption of alcohol, marijuana, and/or nonprescribed drugs." State v. Olsen, 194 Wash.App. 264, 272, 374 P.3d 1209 (2016). Olsen then petitioned this court for review, which was granted. State v. Olsen , 186 Wash.2d 1017, 383 P.3d 1020 (2016).
¶5 Do random UAs ordered to monitor compliance with a valid probation condition not to consume drugs or alcohol violate a DUI probationer's privacy interests under article I, section 7 of the Washington Constitution ?
¶6 The Washington State Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." CONST. art. I, § 7. It is well established that in some areas, this provision provides greater protection than the Fourth Amendment, its federal counterpart. York v. Wahkiakum Sch. Dist. No. 200, 163 Wash.2d 297, 306, 178 P.3d 995 (2008) (plurality opinion).
¶7 One area of increased protection is the collection and testing of urine. Id. at 307, 178 P.3d 995. Compared to the federal courts, "we offer heightened protection for bodily functions."1 Id. Washington courts have generally held that for ordinary citizens, suspicionless urinalysis testing constitutes a disturbance of one's private affairs that, absent authority of law, violates article I, section 7. Id. at 316, 178 P.3d 995 (); Robinson v. City of Seattle, 102 Wash.App. 795, 811, 10 P.3d 452 (2000) ().
State v. Acevedo, 159 Wash.App. 221, 234, 248 P.3d 526 (2010) ; State v. Vant, 145 Wash.App. 592, 603-04, 186 P.3d 1149 (2008).
¶9 We have not, however, directly addressed the issue under our state constitutional provision. Two inquiries are implicit in an article I, section 7 claim: (1) whether the contested state action "disturbed" a person's "private affair[s]" and, if so, (2) whether the action was undertaken with "authority of law." State v. Reeder, 184 Wash.2d 805, 814, 365 P.3d 1243 (2015). "Part of this inquiry focuses on what kind of protection has been historically afforded to the interest asserted, and part of it focuses on the nature and extent of the information that may be obtained as a result of government conduct." Id. (citing State v. Miles, 160 Wash.2d 236, 244, 156 P.3d 864 (2007) ).
¶10 We first look to whether UAs disturb DUI probationers' "private affairs." More specifically, we consider whether providing a urine sample is among " ‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass.’ " Id. (quoting In re Pers. Restraint of Maxfield, 133 Wash.2d 332, 339, 945 P.2d 196 (1997) ).
¶11 We have consistently held that the nonconsensual removal of bodily fluids implicates privacy interests. York , 163 Wash.2d at 307, 178 P.3d 995 ; Juveniles, 121 Wash.2d at 90, 847 P.2d 455 ; Olivas , 122 Wash.2d at 83, 856 P.2d 1076 ; State v. Curran, 116 Wash.2d 174, 184, 804 P.2d 558 (1991), abrogated on other grounds by State v. Berlin, 133 Wash.2d 541, 947 P.2d 700 (1997). UAs implicate privacy interests in two ways. First, the act of providing a urine sample is fundamentally intrusive. This is particularly true where urine samples are collected under observation to ensure compliance.2 See York, 163 Wash.2d at 308, 178 P.3d 995 (). Second, "chemical analysis of urine, like that of blood, can reveal a host of private medical facts about [a person], including whether he or she is epileptic, pregnant, or diabetic."
Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed. 2d 639 (1989). These privacy interests are precisely what article I, section 7 is meant to protect. See State v. Jorden, 160 Wash.2d 121, 126, 156 P.3d 893 (2007) ().
¶12 However, probationers do not enjoy constitutional privacy protection to the same degree as other citizens. Probationers have a reduced expectation of privacy because they are "persons whom a court has sentenced to confinement but who are serving their time outside the prison walls." State v. Jardinez, 184 Wash.App. 518, 523, 338 P.3d 292 (2014) ; see also State v. Simms, 10 Wash.App. 75, 82, 516 P.2d 1088 (1973) (). Therefore, the State may supervise and scrutinize a probationer more closely than it may other citizens. State v. Lucas, 56 Wash.App. 236, 240, 783 P.2d 121 (1989) ; State v. Parris , 163 Wash.App. 110, 117, 259 P.3d 331 (2011). However, "this diminished expectation of privacy is constitutionally permissible only to the extent ‘necessitated by the legitimate demands of the operation of the parole process.’ " Parris , 163 Wash.App. at 117, 259 P.3d 331 (internal quotation marks omitted) (quoting Simms , 10 Wash.App. at 86, 516 P.2d 1088 ).
¶13 Nevertheless, relying on State v. Surge, 160 Wash.2d 65, 156 P.3d 208 (2007) (plurality opinion), the State argues that UAs do not implicate Olsen's privacy interests because probationers lack any privacy interest in their urine. We disagree. Even though misdemeanant probationers have a reduced expectation of privacy, this does not mean that they have no privacy rights at all in their bodily fluids.
¶14 In Surge , we considered the constitutionality of a statute that authorized the collection of convicted felons' DNA for identification purposes. Id. at 69, 156 P.3d 208. A plurality held that the statute is constitutional, reasoning that incarcerated felons lack a privacy interest in their identities due to their...
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