State v. Anderson
| Decision Date | 05 August 2019 |
| Docket Number | C/w No. 78070-1-I,No. 76672-4-I,76672-4-I |
| Citation | 447 P.3d 176,9 Wash.App.2d 430 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Nicholas Windsor ANDERSON, Appellant. |
Leach, J. ¶1 Nicholas Anderson appeals his judgment and sentence for multiple offenses arising from a car crash. He also appeals a restitution order requiring that he pay almost $90,000 for a passenger’s medical expenses. He challenges the constitutionality of a warrantless blood draw, raises two sentencing issues, clams ineffective assistance of counsel based on his counsel’s failure to object to the restitution order, and challenges the imposition of a $100 DNA (deoxyribonucleic acid) fee.
¶2 Anderson establishes two errors. A jury must decide whether his prior reckless driving conviction qualifies as a "prior offense" under RCW 46.61.5055. That did not happen here. And State v. Ramirez 1 requires striking Anderson’s $100 DNA fee. So we remand for the superior court to empanel a jury to decide the prior offense issue and to strike the DNA fee.
¶3 In October 2014, Anderson was living with his high school friend, Michael Powers. Powers would occasionally let Anderson drive his car. The evening of October 24, 2014, Anderson drank at home and then went to a bar to watch a hockey game. About 12:30 a.m., Powers heard Anderson’s voice and then heard his car start. Anderson took Powers’s car without his permission.
¶4 Around 2:00 a.m., Sergeant Jamie Douglas responded to a multivictim car crash in Auburn. At the scene, Douglas saw an "obliterated" car off the roadway, a path of debris, an uprooted tree with an 18-inch base, uprooted utility boxes, and guy wires that had been supporting a telephone pole torn out of the ground. The speed limit on the road was 35 m.p.h. but, based on the scene, Douglas estimated the car was traveling close to 100 m.p.h. Deputy Jace Hoch had observed the car earlier traveling at about 90 m.p.h. but could not catch it. He asked dispatch to let the Auburn Police Department know that the car was heading toward Auburn.
¶5 Four of the five passengers in the car, Andrew Tedford, Caleb Graham, Rehlein Stone, and Suzanne McCay, died. They suffered extensive injuries, including amputations and dissected and evulsed organs. Multiple occupants were ejected from the vehicle. The fifth passenger, James Vaccaro, also suffered serious injuries, including traumatic brain injury, that have had lasting effects. Anderson’s injuries included lacerations to his face, liver, and kidney, a collapsed lung, four rib fractures, a wrist fracture, and bleeding around his adrenal gland. Officer Derek Anderson, a collision investigation officer, responded to the scene and testified, "The scale and the amount of damage and unfortunate loss of life in this case has been unparalleled in my ... eight years of [investigating collision] scenes."
¶6 At the scene, Officer Josh Gustafson asked Anderson who had been driving the car. Anderson said that he had. Anderson told Sergeant Douglas that he did not "make the turn." Saliva found on the driver’s side airbag matched Anderson’s DNA.
¶7 Multiple individuals who responded to the scene smelled alcohol on Anderson. Anderson told paramedic Paul Nordenger that he had had "a few drinks." Nordenger drew Anderson’s blood at the scene without a warrant. Test results 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. Anderson was taken to Harborview Medical Center. Toxicologist Asa Louis testified that a second blood draw taken there showed a BAC of 0.18.
¶8 The State charged Anderson with four counts of vehicular homicide, one count of vehicular assault, one count of reckless driving, and an aggravator for injury to the victim "substantially exceeding the level of bodily harm necessary to satisfy the elements of [vehicular assault]." A jury convicted Anderson as charged.
¶9 The sentencing court imposed concurrent sentences of 280 months for each of the four vehicular homicide convictions. It also imposed two 24-month enhancements to run consecutively to each of the vehicular homicide convictions and to each other (192 months total) because Anderson had two prior convictions for driving under the influence (DUI) and reckless driving. And it imposed 120 months for the vehicular assault conviction and 364 days for the reckless driving conviction to run consecutively to the vehicular homicide convictions and the enhancements. The court sentenced Anderson to a total of 592 months in prison and 364 days in jail. It waived all nonmandatory legal financial obligations (LFOs) and imposed a $100 DNA fee. The court also ordered Anderson to pay $97,996.48 in restitution for Tedford’s and Stone’s funeral expenses and for Vaccaro’s medical expenses. Anderson appeals.
¶10 Anderson challenges the constitutionality of the warrantless blood draw at the scene, claiming that exigent circumstances did not exist. He does not challenge the second blood draw at Harborview. We reject his claim.
¶11 "As a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution."2 A blood test is a search and seizure.3 A recognized exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist.4 A court examines the totality of the circumstances to determine whether they exist.5 They exist where "the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence."6 The natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, for example, when delay results from the warrant application process.7 The State has the burden of showing exigent circumstances by clear and convincing evidence.8 Whether exigent circumstances exist is a legal question this court reviews de novo.9
¶12 Anderson cites City of Seattle v. Pearson 10 to support that here, no exigent circumstances existed. There, police arrested Pearson for DUI and vehicular assault after she struck a pedestrian with her car, performed poorly on field sobriety tests, and admitted that she had smoked marijuana earlier in the day.11 Police transported her to the hospital two hours after the incident.12 About thirty minutes after Pearson’s arrival, a nurse drew her blood without a warrant.13 This blood draw showed her THC concentration was approximately 20 nanograms.14 Pearson asked the court to suppress this evidence.15 The trial court admitted it, finding that exigent circumstances existed to justify the warrantless blood draw.16
¶13 This court reversed, holding, "Because the City failed to show by clear and convincing evidence that obtaining a warrant would have significantly delayed collecting a blood sample, the natural dissipation of THC in Pearson’s bloodstream alone did not constitute an exigency sufficient to bypass the warrant requirement."17 In its analysis of the totality of the circumstances, this court noted an officer’s testimony that a warrant usually takes between 60 and 90 minutes, municipal, district, and superior court judges are available to sign warrants, and police can secure warrants by telephone.18 A toxicologist testified that unless a person is a chronic marijuana user, THC generally dissipates from a person’s blood stream within 3 to 5 hours after smoking.19 And this court observed that in Missouri v. McNeely,20 the Supreme Court of the United States explained that the presence of other officers weighs against the conclusion that exigent circumstances existed.21 This court reasoned that because there were nine officers at the scene, one officer could have transported Pearson to the hospital to collect a blood sample while another officer obtained a warrant, so "[t]he delay—if any—would have been minimal."22
¶14 The State relies on State v. Inman 23 to show that exigent circumstances existed. In Inman, Inman crashed his motorcycle on a rural road, injuring him and his passenger.24 "Inman had facial trauma, including bleeding and abrasions on the face, and a deformed helmet."25 A bystander told police that Inman had been unconscious for five minutes before regaining consciousness.26 A paramedic administered emergency treatment.27 A responding officer spoke with Inman and smelled intoxicants on him.28 Inman admitted that he had been drinking before driving his motorcycle. Responders at the scene conducted a warrantless blood draw.29 The State charged Inman with vehicular assault.30 Inman asked the trial court to suppress evidence of the blood draw,31 which the court declined to do, finding exigent circumstances existed.32
¶15 Division Two of this court affirmed the trial court’s decision and held that the totality of the circumstances supported that exigent circumstances existed.33 The court considered that Inman received emergency medical services and treatment for possible spine injuries, helicopters were coming to medevac him to the nearest trauma center at the time of the blood draw, it would have taken at least 45 minutes to prepare and obtain a warrant, and obtaining a warrant by telephone was questionable because the responding officer lacked reliable cell phone coverage in the rural area.34 The court stated that "[u]nder the circumstances, obtaining a warrant was not practical" because of delay and because Inman’s continued medical treatment could have impacted the integrity of the blood sample.35 The court distinguished these circumstances from those in Pearson based on the severity of injuries involved, the necessity for the administration of medication and transportation, the time available to obtain a warrant before transport, and the accessibility of a telephonic warrant.36
¶16...
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