Blomstrom v. Tripp

Decision Date05 October 2017
Docket NumberNo. 91642-0.,91642-0.
Citation189 Wash.2d 379,402 P.3d 831
CourtWashington Supreme Court
Parties Cortney L. BLOMSTROM, Petitioner, v. The Honorable Gregory J. TRIPP, in his official capacity as a Spokane County District Court Judge, and the Spokane County District Court, Respondents. Brooke M. Button, Petitioner, v. The Honorable Gregory J. Tripp, in his official capacity as a Spokane County District Court Judge, and the Spokane County District Court, Respondents. Christopher V. Cooper, Petitioner, v. The Honorable Gregory J. Tripp, in his official capacity as a Spokane County District Court Judge, and the Spokane County District Court, Respondents.

Michael Louis Vander Giessen, Spokane County Public Defender's Office, 1033 W. Gardner Ave., Spokane, WA, 99201-2016, for Petitioner.

Brian Clayton O'Brien, Spokane Co. Pros. Atty., 1100 W. Mallon Ave., Spokane, WA, 99260-2043, Gretchen Eileen Verhoef, Samuel Joseph Comi, Spokane County Prosecutor's Office, 1100 W. Mallon Ave., Spokane, WA, 99260-0270, for Respondents.

Ryan Boyd Robertson, Robertson Law PLLC, 1000 2nd Ave., Ste. 3670, Seattle, WA, 98104, George L. Bianchi, The Bianchi Law Firm, 2000 112th Ave. N.E., Bellevue, WA, 98004-2913, Jonathan David Rands, Attorney at Law, 1200 Old Fairhaven Pkwy., Ste. 303, Bellingham, WA, 98225-7446, Howard Stanton Stein, Stein Lotzkar & Starr PS, 2840 Northup Way, Ste. 140, Bellevue, WA, 98004-1433, Jason Scott Lantz, Sullivan Law Group, 3209 Rockefeller Ave., Everett, WA, 98201-4316, as Amicus Curiae on behalf of Washington Foundation for Criminal Justice (WFCJ).

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., 206 10th Ave. S.E., Olympia, WA, 98501-1311, as Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

April Suzanne Benson, Leah E. Harris, Washington Attorney General's Office, 800 Fifth Ave., Ste. 2000, Seattle, WA, 98104-3188, as Amicus Curiae on behalf of State of Washington.

James Elliot Lobsenz, Carney Badley Spellman, 701 5th Ave., Ste. 3600, Seattle, WA, 98104-7010, Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2008, Theresa Hsin-Yi Wang, Lance Alan Pelletier, Stokes Lawrence PS, 1420 5th Ave., Ste. 3000, Seattle, WA, 98101-2393, as Amicus Curiae on behalf of ACLU.

WIGGINS, J.

¶1 This case involves three driving under the influence (DUI) defendants challenging their pretrial urinalysis testing conditions. Each defendant was arrested for DUI, and each was ordered to participate in random urinalysis testing as a condition of pretrial release. The defendants challenged their testing conditions by petitioning for a writ of review with the Spokane County Superior Court. The superior court denied the applications for a writ.

¶2 We reverse the decision of the superior court. We hold that Cortney Blomstrom, Brooke Button, and Christopher Cooper are entitled to statutory writs of review because they lack an adequate remedy at law to challenge their pretrial release conditions and because their urinalysis testing requirements contravene article I, section 7 of the Washington State Constitution.

FACTS AND PROCEDURAL HISTORY

¶3 Each of the three petitioners was arrested for DUI. Two petitioners had high blood alcohol concentrations (BAC) but no previous DUI arrests, while the third petitioner had allegedly used marijuana and had a previous DUI conviction.

A. Blomstrom

¶4 Cortney Blomstrom was arrested for DUI on February 1, 2015.1 Clerk's Papers (CP) at 39. A breath test showed a BAC2 of 0.191 and 0.184. Verbatim Report of Proceedings (RP) Feb. 2, 2015 (RP Blomstrom) at 1. Blomstrom had no criminal record. Id. at 2.

¶5 At Blomstrom's first appearance, the State requested four times monthly random urinalysis testing as a condition of release. Id. The State pointed to a series of studies by the United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA), which found that an individual with a BAC over 0.15 is "fa[r] more likely to be involved in a fatal car crash as well as more likely to reoffend."3

Id. Blomstrom objected, citing her lack of criminal record and arguing that the other conditions—requiring "nonuse, possession, or consumption [of alcohol and drugs]"—were adequate to protect public safety. Id.

¶6 The court imposed twice monthly random urinalysis testing, concluding that

[b]ecause of the high BAC, because of the facts of this case, because of the argument of counsel I do find that there is a likelihood that you would reoffend and ... possibly believe consuming alcohol would be a risk to public safety as well.

Id. at 3. The court further ordered Blomstrom to abstain from possessing or using any alcohol or unprescribed drugs. Id.

B. Cooper

¶7 Christopher Cooper was arrested for DUI on February 7, 2015. CP at 26. The arresting officer noted an open bottle of whiskey on the floorboard, about a quarter empty; Cooper allegedly admitted "that he had just come from a bar." RP Feb. 9, 2015 (RP Cooper) at 2. Cooper's breath test registered a BAC of 0.175 and 0.174. Id. at 1. Cooper had never been convicted of an alcohol- or drug-related offense and had no prior DUI arrests. CP at 26-28.

¶8 At Cooper's first appearance, the State requested four times monthly random urinalysis testing as a condition of release. RP Cooper at 1. Again, the State relied on the NHTSA studies "indicating that above a .15 [BAC] an individual is far more likely to both reoffend and be involved in a fatal accident." Id. at 2. The State also suggested that Cooper's "pretty lengthy driving record ... would warrant testing." Id. at 3.

¶9 Cooper's counsel objected, arguing that "there's no indication he wouldn't follow the Court's orders not to use, possess, or consume [alcohol] or that he would be a danger to society or reoffend ...." Id. Counsel further objected to the testing requirements "on State v. Rose[4 ] grounds." Id.

¶10 The court imposed four times monthly urinalysis testing based on Cooper's "record[,] ... the studies which [the prosecutor] has indicated, [and] the high blow which is more than two times the legal limit." Id. at 5-6. In light of these findings, the court concluded that "we have to put something in place that will reduce the danger to the community ... under [Criminal Rules for Courts of Limited Jurisdiction (CrRLJ) ] 3.2(d)(10). So, that's what I'm going to do in this case." Id. The court further ordered Cooper to abstain from all use or possession of alcohol or unprescribed drugs. Id. at 5-6. The court noted that Cooper could ask the court to reconsider the conditions imposed "at any time." Id. at 6.

C. Button

¶11 Brooke Button was arrested for driving under the influence of marijuana. RP Mar. 2, 2015 (RP Button) at 3. Button was arrested over the weekend, at which point probable cause was determined and initial pretrial release conditions were purportedly imposed.5 Id. at 1. Button's first appearance in court was on the following Monday. Id.

¶12 Button's criminal record largely consisted of minor theft and driving infractions, as well as a 2009 conviction for DUI in Idaho.6 CP at 92-94; RP Button at 3. There was no evidence concerning the nature of the substance involved in Button's 2009 DUI conviction. RP Button at 5. Button also had three previous charges for failing to install an ignition interlock device (IID)7 in 2011. CP at 92-94.

¶13 At Button's first appearance, the State requested four times monthly random urinalysis testing. RP Button at 2. The State emphasized Button's prior DUI conviction, and described the three charges for failing to install an IID as "a bit troubling ... from the position of whether or not she's going to follow court orders not to use, possess, or consume" alcohol or drugs. Id. at 5. Button's counsel objected, noting that "there was no alcohol in this allegation. It was strictly a marijuana allegation." Id. at 4. Counsel requested that the court not impose the testing requirement. Id.

¶14 The court agreed with the State that four times monthly urinalysis testing was appropriate:

I am going to order testing based upon the prior [DUI] ... and the recency in time and all the other facts that I find to be the facts for the purpose of this hearing as stated by [the prosecutor] and so, you're to contact Absolute Drug Testing within 24 hours for random four times a mont[h] testing. This is based upon [CrRLJ] 3.2 as well as RCW 10.21.030 which allows for that testing and ... frankly the ... likelihood of her reoffending. The fact that we've ha[d] three arrests for the ignition interlock violation also is an indication to the Court [that] there should be some ... testing.

Id. at 5-6. However, the court concluded that an IID was unnecessary "because it's not clear to me that both [the current and prior offense] involved alcohol." Id. at 6. The court removed the IID requirement from Button's pretrial release conditions. Id.

D. Applications for Writ of Review

¶15 The petitioners subsequently challenged their pretrial release conditions by applications for a statutory writ to the superior court.8 CP at 1-2, 32-33, 60-61. The petitioners also filed largely identical supporting memoranda. Id. at 3-21, 40-56, 62-84. These memoranda challenged the petitioners' urinalysis testing conditions as violations of CrRLJ 3.2(a), the Fourth Amendment to the United States Constitution, and article I, section 7 of the Washington Constitution. Id. at 4, 41, 63.

¶16 The superior court rejected the applications for a writ in identical orders. CP at 98, 102, 106. The court declined to comment on the legality or constitutionality of the district court's release conditions, concluding instead that a statutory writ was inappropriate because another, adequate remedy was available: "[T]he challenge can only be undertaken by a [Rules for Appeal of Decisions from Courts of Limited Jurisdiction (RALJ) ] appeal if [the petitioners] are convicted or plead guilty to the charges." Id. at 101.

¶17 The petitioners jointly filed a motion for...

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