State v. Judge

Decision Date05 January 1984
Docket NumberNo. 49310-3,49310-3
Citation100 Wn.2d 706,675 P.2d 219
PartiesSTATE of Washington, Respondent, v. Dorothy Bernice JUDGE, Appellant.
CourtWashington Supreme Court

Thomas Burke & Associates, Thomas G. Burke, Douglas J. Hill, Kirkland, for appellant.

Norman K. Maleng, King County Prosecutor, Lee Yates, Deputy Pros. Atty., Seattle, for respondent.

DORE, Justice.

Defendant Dorothy Judge appeals her conviction in King County Superior Court for negligent homicide. This case was certified to us by the Court of Appeals for disposition.

On August 19, 1981, the 19-year-old defendant spent the afternoon drinking with three of her friends. The group included two young adult males, one of whom purchased the liquor they were consuming. Judge and her companions, in her parents' car with Judge driving, proceeded down 104th Avenue, Southeast near Auburn toward 320th Avenue, where she lost control of the vehicle and struck four children. Three eventually died from injuries sustained in the accident.

Law enforcement officers and aid cars arrived several minutes after the accident at approximately 3:30 p.m. The children were attended by aid units. A Washington State Patrol Breathalyzer technician arrived at the scene with his van at approximately 3:34 p.m., and made contact with Judge a minute later. He told her she was under arrest for negligent homicide, advised her of her Miranda rights, told her he was going to be taking a blood sample from her and that she had the right to additional independent testing. The blood was later drawn by a paramedic at approximately 4:10 p.m. at the scene. Judge made no objection to the taking of the blood sample, which measured .17 grams percent alcohol. From the time of the accident until she was removed from the scene at approximately 7 p.m., Judge, in extreme emotional distress, displayed bizarre behavior.

Judge was charged in King County Superior Court with three counts of negligent homicide under RCW 46.61.520. The defense filed a motion to dismiss for loss or destruction of evidence and a motion to suppress the results of the blood test, including the issue of denial of counsel. A jury found Judge guilty on three counts of negligent homicide.

Issues

The defendant raises the following assignments of errors on appeal:

1. Whether RCW 46.20.308(1) allows a person arrested for negligent homicide a choice of taking a Breathalyzer test or a blood test.

2. Whether the taking of a blood sample in the subject case was unreasonable and violated the United States Constitution, amend. 4, or Const. art. 1, § 7.

3. Whether the defendant was discriminately prosecuted in violation of the equal protection clause of the United States Constitution, amend. 14, or Const. art. 1, § 12.

4. Whether defendant was denied effective assistance of counsel at a critical stage of the proceedings against her.

5. Whether the prosecution violated defendant's due process rights by failing to collect and preserve potentially exculpatory evidence.

I

Defendant maintains she has a right under RCW 46.20.308(1) to a Breathalyzer test instead of a blood test to determine alcohol consumption. RCW 46.20.308(1), as originally enacted, provided in pertinent part as follows:

(1) Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of RCW 46.61.506, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor. Such officer shall inform the person of his right to refuse the test, and of his right to have additional tests administered by any qualified person of his choosing as provided in RCW 46.61.506. The officer shall warn the driver that his privilege to drive will be revoked or denied if he refuses to submit to the test. Unless the person to be tested is unconscious, the chemical test administered shall be of his breath only.

(Italics ours.) Thus, the statute forced motorists suspected of drunken driving to choose between submitting to an intoxication test or having their license automatically revoked. See generally Comment, Motor Vehicles--Drunken Driving: Implied Consent Comes to Washington, 45 Wash.L.Rev. 656 (1970). The statute allowed for blood or Breathalyzer tests, but required that Breathalyzer tests be given instead of blood tests unless the defendant was unconscious. See Official Voters Pamphlet, at 7 (1968).

In 1975, the Legislature amended RCW 46.20.308(1) by adding the following proviso:

That if an individual is under arrest for the crime of negligent homicide ... a breath or blood test may be administered without the consent of the individual so arrested.

Laws of 1975, 1st Ex.Sess., ch. 287, § 4, p. 1225. This amendment was added to the implied consent statute after the Washington courts ruled that the failure to inform the defendant of the right to revoke consent or the right to independent testing would result in exclusion of the blood alcohol test results. State v. Turpin, 94 Wash.2d 820, 824, 620 P.2d 990 (1980). See State v. Wetherell, 82 Wash.2d 865, 514 P.2d 1069 (1973); State v. Krieg, 7 Wash.App. 20, 497 P.2d 621 (1972). The 1975 amendment abrogated the right of negligent homicide defendants to refuse to submit to blood alcohol testing. Turpin, 94 Wash.2d at 825, 620 P.2d 990.

As RCW 46.20.308(1) currently reads, negligent homicide defendants have no right to refuse to submit to blood alcohol testing. The purpose of RCW 46.20.308(1) is

to provide fair, efficient, scientific, objective, and reasonably reliable data relating to the sobriety of an arrested motorist believed, upon reasonable grounds, to have been driving while under the influence of intoxicants.

Wetherell, 82 Wash.2d at 867, 514 P.2d 1069. The 1975 proviso to RCW 46.20.308(1) uses the disjunctive "or" to declare that "a breath or blood test may be administered without the consent of the individual so arrested." (Italics ours.) Statutory interpretation is necessary only when the language of a statute is ambiguous. Turpin 94 Wash.2d at 824, 620 P.2d 990. The 1975 proviso's use of the word "or" implies the person to be tested has no right to refuse either a breath or a blood test. We adopt this interpretation of RCW 46.20.308(1).

II

We next consider the question of whether the taking of a blood sample under the circumstances of the present case was so unreasonable as to violate U.S. Const. amend. 4 or Const. art. 1, § 7. We begin our analysis with the proposition that the taking of blood samples constitutes a "search and seizure" within the meaning of U.S. Const. amend. 4 and Const. art. 1, § 7. State v. Meacham, 93 Wash.2d 735, 738, 612 P.2d 795 (1980). See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

The seminal case regarding the constitutionality of taking of blood samples is Schmerber v. California, supra. In Schmerber, the defendant challenged his conviction for driving while intoxicated on the ground that the warrantless "seizure" of his blood over his objection violated his rights under the Fourth Amendment. The Schmerber Court rejected the defendant's claim that the seizure of blood was an unreasonable search and seizure. The court identified three requirements deemed critical to the reasonableness of the intrusion in question. First, there must be a "clear indication" that in fact the desired evidence will be found. Second, the test chosen to measure defendant's blood alcohol level must be a reasonable one. Third, the test must be performed in a reasonable manner. Schmerber, at 770-71, 86 S.Ct. at 1835-36.

Furthermore, the Schmerber court rejected defendant's contention that a warrant must be obtained before blood samples may be taken. According to the court:

The officer in the present case ... might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened "the destruction of evidence[.]" We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.

(Citations omitted.) Schmerber, at 770-71, 86 S.Ct. at 1835-36.

In the present case, the taking of blood samples by the paramedic met the "reasonableness" requirements of Schmerber. As in Schmerber, the Washington State patrolman at the scene of the accident had probable cause to believe defendant Judge was intoxicated; therefore, there existed a clear indication a blood alcohol test would show she had consumed significant quantities of alcohol. Likewise, the method of blood alcohol testing employed was a reasonable one. As the Schmerber Court explained:

Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. Such tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the...

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