State v. Baird
| Decision Date | 22 December 2016 |
| Docket Number | No. 90419-7,90419-7 |
| Citation | 187 Wash.2d 210,386 P.3d 239 |
| Parties | STATE of Washington, Petitioner, v. Dominic Xavier BAIRD, Respondent. State of Washington, Petitioner, v. Collette Adams, Respondent. |
| Court | Washington Supreme Court |
Brandy Lyn Gevers, King County Prosecuting Attorney's Office, 516 3rd Ave., Seattle, WA, 98104-2385, Erin S. Norgaard, King County Prosecuting Attorney's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2390, for Petitioner.
Eric J. Nielsen, Eric Broman, David Bruce Koch, Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, Shira J. Stefanik, Law Office of Shira J. Stefanik, 119 1st Ave. S., Ste. 260, Seattle, WA, 98104-3450, Jacey L. Liu, Callahan Law, P.S., Inc., P.O. Box 130, Shelton, WA, 98584-0130, Ryan Boyd Robertson, Robertson Law PLLC, 1000 2nd Ave., Ste. 3670, Seattle, WA, 98104, for Respondent.
Ryan Boyd Robertson, Robertson Law PLLC, 1000 2nd Ave., Ste. 3670, Seattle, WA, 98104, Diego J. Vargas, The Vargas Law Firm, PLLC, 3326 160th Ave. S.E., Ste. 215, Bellevue, WA, 98008-6418, Howard Stanton Stein, Stein Lotzkar & Starr PS, 2840 Northup Way, Ste. 140, Bellevue, WA, 98004-1433, Jonathan David Rands, Attorney at Law, 1200 Old Fairhaven Pkwy., Ste. 303, Bellingham, WA, 98225-7446, as Amicus Curiae on behalf of Washington Foundation for Criminal Justice.
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.
Schuyler Brady Rue, Department of Licensing, P.O. Box 9031, Olympia, WA, 98507-9031, Leah E. Harris, Washington State Attorney General's Office, 800 5th Ave., Ste. 2000, Seattle, WA, 98104-3188, Dep't of Licensing & Admin. Law A.G. Office, Attorney at Law, 1125 Washington Street S.E., P.O. Box 40110, Olympia, WA, 98504-0110, as Amicus Curiae on behalf of Washington State Patrol.
Schuyler Brady Rue, Department of Licensing, P.O. Box 9031, Olympia, WA, 98507-9031, Leah E. Harris, Washington State Attorney General's Office, 800 5th Ave., Ste. 2000, Seattle, WA, 98104-3188, Dep't of Licensing & Admin. Law A.G. Office, Attorney at Law, 1125 Washington Street S.E., P.O. Box 40110, Olympia, WA, 98504-0110, as Amicus Curiae on behalf of Department of Licensing.
Gregory Stephen Colburn, Christopher Michael Davis, Davis Law Group, P.S., 2101 4th Ave., Ste. 1030, Seattle, WA, 98121-2317, as Amicus Curiae on behalf of Mothers Against Drunk Driving.
Ryan Boyd Robertson, Robertson Law PLLC, 1000 2nd Ave., Ste. 3670, Seattle, WA, 98104, Jonathan David Rands, Attorney at Law, 1200 Old Fairhaven Pkwy., Ste. 303, Bellingham, WA, 98225-7446, George L. Bianchi, The Bianchi Law Firm, 2000 112th Ave. N.E., Bellevue, WA, 98004-2913, as Amicus Curiae on behalf of Washington Foundation for Criminal Justice.
¶1 These consolidated cases require us to decide whether the State can offer a driver's refusal to take a breath test under Washington's implied consent statute, RCW 46.20.308,1 as evidence of guilt at a criminal trial after the Supreme Court's decision in Missouri v . McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (plurality opinion).
¶2 Washington's implied consent statute facilitates law enforcement in obtaining evidence of blood alcohol content (BAC) for prosecution of driving under the influence (DUI) cases by authorizing an officer to request a breath sample from drivers arrested for DUI. See City of Seattle v . St. John, 166 Wash.2d 941, 947, 215 P.3d 194 (2009). Under the statute, a driver is given the choice to refuse or consent to a breath test. RCW 46.20.308(2). If the driver refuses to provide a breath sample, the driver's refusal may be used as evidence of guilt at a subsequent criminal trial. State v . Long, 113 Wash.2d 266, 272-73, 778 P.2d 1027 (1989) ; RCW 46.20.308(2)(b). In the two cases here, an officer asked each defendant to submit to a breath test. Dominic Baird agreed to the test, and Collette Adams refused it. Baird's test results showed a BAC above the legal limit.
¶3 Pretrial, both defendants moved to suppress the evidence, arguing the breath test was a request to consent to a warrantless search and they had a constitutional right to refuse consent. Consequently, the State could not use their refusal as evidence of guilt. Baird further argued that because the officer told him that his refusal could be used as evidence, the officer coerced his consent through an unlawful threat, thereby invalidating his consent. The State took the position that the defendants had no constitutional right to refuse because the exigent circumstances exception to the warrant requirement applies in all DUI cases. Due to the body's natural elimination of alcohol from the bloodstream as time passes, the delay necessary to obtain a warrant is impractical since the delay will cause the destruction of DUI evidence.
¶4 Relying on McNeely and State v . Gauthier, 174 Wash.App. 257, 298 P.3d 126 (2013), the trial court in each case held the defendants had a constitutional right to refuse consent to the warrantless breath test. In McNeely, the United States Supreme Court held that alcohol dissipation in routine DUI cases does not create per se exigent circumstances and that the State failed to prove that any warrant exception applied to justify a search of the defendant's blood for evidence of intoxication. In Gauthier , the Court of Appeals held that a defendant has a constitutional right to refuse consent to a warrantless search that did not fall under an exception to the warrant requirement and that refusal may not be admitted as evidence of guilt at a criminal trial. Reading these cases together, the Baird trial court reasoned that exigent circumstances did not justify a warrantless breath test and that Baird's consent was coerced, and it suppressed the test results. Similarly, the Adams trial court reasoned that evidence of Adams's refusal must be suppressed.
¶5 The State petitioned King County Superior Court for an interlocutory writ of review; review was granted and the cases consolidated. In the interests of justice, the superior court requested direct review from this court, finding that the district court rulings substantially altered the status quo regarding thousands of breath test and breath test refusal DUI cases.
¶6 We accepted review and now reverse. The district courts correctly rejected the State's argument that alcohol dissipation constitutes exigency per se—exigency must be determined under the totality of circumstances, case by case. We hold that the implied consent statute does not authorize a warrantless search, and a driver has no constitutional right to refuse a breath test because such a search falls under the search incident to arrest exception to the warrant requirement. Further, although the implied consent statute gives a driver a statutory right to refuse the test, by exercising the privilege to drive, a driver consents to admitting that refusal to take the breath test into evidence. Accordingly, we hold that a driver's refusal is admissible as evidence of guilt under Washington's implied consent law.
¶7 On November 12, 2012, around 9:40 p.m., Washington State Patrol (WSP) Trooper Phil Riney was on patrol on State Route 167 in south King County when he saw a vehicle driven by Baird weaving between lanes. He watched as Baird's vehicle drifted from one lane into another and then jerked back. Within one mile of travel, Baird repeated this behavior several times. He did, however, use his turn signal with each lane change. In addition to weaving, his speed fluctuated between 45 and 70 miles per hour on the roadway, which had a speed limit of 60 miles per hour. After observing Baird's behavior, Trooper Riney initiated a traffic stop.
¶8 Baird rolled his window down, and Trooper Riney smelled "intoxicants" and green (unsmoked) marijuana. Clerk's Papers (CP) at 142. Baird had watery and bloodshot eyes and denied that he had marijuana in the car and that he had been drinking.
Trooper Riney asked him to step out of the vehicle, and Baird admitted that he had consumed a drink over an hour before. Baird performed voluntary field sobriety tests, including the walk and turn test and the horizontal gaze nystagmus
test. The results suggested that Baird was impaired, so Trooper Riney arrested him.
¶9 WSP Trooper Christopher Poague came to the scene and transported Baird to the city of Kent Police Department for DUI processing. Trooper Poague read the statutory implied consent warnings (ICWs), RCW 46.20.308(2), and requested that Baird consent to a breath test for the purpose of determining his BAC. The ICWs include the warning that if the person refuses to consent to a breath test, that person's license will be revoked for at least one year and that the refusal may be used as evidence at a subsequent criminal trial. RCW 46.20.308(2)(a)-(b).
¶10 Baird agreed to take the breath test. He provided two breath samples, measuring 0. 138 and 0.130, well above the legal breath alcohol concentration limit of 0.08. RCW 46.20.308(5).
¶11 The State charged Baird with one count of DUI in King County District Court. Baird moved to suppress the breath test results. He argued the breath test was a search, and under the Fourth Amendment to the United States Constitution and article I, section 7 of Washington's constitution, he had the right to refuse consent to the warrantless search because no warrant exceptions applied. And if he had the constitutional right to refuse consent, the State could not use his refusal as evidence of guilt at a criminal trial under Gauthier. Although he consented to the test, the warning in RCW 46.20.308(2)(b) —stating refusal evidence may be used against the driver—coerced his consent because it stated a threat that the State had no authority to carry out.
¶12 The State argued that Baird had no constitutional right to refuse because when an officer...
To continue reading
Request your trial
-
State v. Kilby
...Amendment does not bar admission into evidence that defendant refused to submit to chemical test); State v. Baird , 187 Wash.2d 210, 386 P.3d 239, 247–48 (2016) (en banc) (plurality opinion) (holding that evidence of test refusal remains admissible after Birchfield ). But cf. Commonwealth v......
-
State v. Anderson
...569 U.S. 141, 148-49, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).5 McNeely, 569 U.S. at 149, 133 S.Ct. 1552.6 State v. Baird, 187 Wash.2d 210, 218, 386 P.3d 239 (2016).7 McNeely, 569 U.S. at 156, 133 S.Ct. 1552.8 State v. Inman, 2 Wash. App. 2d 281, 290, 409 P.3d 1138, review denied, 190 Was......
-
Commonwealth v. Myers
...it authorizes a choice between two options, to consent or refuse, with penalties attached for refusal." State v. Baird , 187 Wash.2d 210, 386 P.3d 239, 246 (2016) (plurality). In a thorough discussion of Wisconsin's implied consent statute, which, like Pennsylvania's, provides that drivers ......
-
State v. Henry
...; Aviles v. State, 443 S.W.3d 291, 294 (Tex. App. 2014) ; Weems v. State, 434 S.W.3d 655, 665 (Tex. App. 2014).5 State v. Baird, 187 Wash.2d 210, 386 P.3d 239, 249 n.8 (2016) (reiterating that the "implied [c]onsent in the statute does not act as valid consent for a search" and asserting th......