State v. Nelson, 35273-1-III

Citation434 P.3d 1055
Decision Date14 February 2019
Docket NumberNo. 35273-1-III,35273-1-III
CourtCourt of Appeals of Washington
Parties STATE of Washington, Respondent, v. Thomas J. NELSON, Petitioner.

PUBLISHED OPINION

Korsmo, J.

¶ 1 This court granted discretionary review of Thomas Nelson’s driving while under the influence (DUI) conviction in order to consider his challenge to the implied consent statute. Concluding that this claim is governed by the decision in State v. Baird , 187 Wash.2d 210, 386 P.3d 239 (2016) (plurality opinion), and that a breath sample can be obtained incident to the arrest of an impaired driver, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 This matter has a lengthy history, due in part to the fact that three trials were required in the district court. It began with a traffic stop for speeding in Douglas County. Trooper1 Mark Ward stopped the vehicle being driven by Mr. Nelson for speeding across the U.S. Highway 2 bridge from Chelan County to Douglas County.

¶ 3 Noticing an odor of alcohol, the trooper inquired about Mr. Nelson’s use of alcohol. Admitting that he had consumed two 16-ounce cans of beer while golfing, Mr. Nelson agreed to perform physical sobriety tests. After performing the tests, the trooper arrested Mr. Nelson for DUI. He was transported to the jail and given the implied consent warnings. Mr. Nelson consented to provide breath samples. They measured .078 and .079.

¶ 4 Charges were filed in the Douglas County District Court. Mr. Nelson moved to suppress the breath test results on several grounds, including an argument that it was a warrantless search prohibited by Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The district court denied the motion, determining that the breath test was not the product of an unlawful search. Ultimately, a jury convicted Mr. Nelson of DUI and first degree negligent driving. On appeal, the superior court affirmed the conviction. A commissioner of this court granted discretionary review to consider Mr. Nelson’s argument that the breath test constituted an improper warrantless search in violation of art. I, § 7 of the Washington Constitution.

¶ 5 A panel of this court heard oral argument of the case.

ANALYSIS

¶ 6 Mr. Nelson contends that the warrantless search of his breath was prohibited by art. I, § 7 of our state’s constitution. His position, which necessarily would invalidate large sections of our implied consent law, is inconsistent with our search incident to arrest jurisprudence, and is inconsistent with the result in Baird . We discuss, in order, our implied consent law and the recent federal cases involving implied consent statutes, Washington’s treatment of the search incident to arrest doctrine, and Baird , before applying those discussions to Mr. Nelson’s case.

Implied Consent

¶ 7 Washington’s implied consent law, codified at RCW 46.20.308, was adopted by the people of this state when they approved Initiative 242 during the 1968 election. State v. Moore , 79 Wash.2d 51, 52, 483 P.2d 630 (1971). The acknowledged purpose of implied consent legislation is to address the long-standing problem of drunk driving. Id . at 53, 483 P.2d 630. Although the statute has been modified several times over the last half century, the essence of the provision at the heart of this case reflects the trade-off approved by the voters in 1968. That trade-off is related in the opening sentence of the statute:

Any person who operates a motor vehicle within this state is deemed to have given consent, ... to a test or tests of his or her breath for the purpose of determining the alcohol concentration in his or her breath if arrested for any offense where, ... the arresting officer has reasonable grounds to believe the person had been driving ... while under the influence of intoxicating liquor.

RCW 46.20.308(1).

¶ 8 The implied consent recognized in this statute is not final. Prior to obtaining a breath sample, the officer must advise the driver that he or she still has the right to refuse to consent to the test, but that a license revocation and use of that refusal at trial are among the consequences that follow if the driver declines the test. RCW 46.20.308(2).

¶ 9 The constitutionality of this statute was at issue in Moore . Our court concluded that the statute did not violate either the Fifth Amendment to the United States Constitution protection against self-incrimination or the protection of art. I, § 9 from being compelled to give evidence against oneself. 79 Wash.2d at 57, 483 P.2d 630. The court also rejected a challenge to the validity of the consent provision, finding it to be within the police power of the state to compel the breath sample. Id . at 57-58, 483 P.2d 630.

¶ 10 Over the years, the court has addressed other constitutional challenges to the implied consent statute. One issue addressed in State v. Curran , 116 Wash.2d 174, 804 P.2d 558 (1991), abrogated in part on other grounds by State v. Berlin , 133 Wash.2d 541, 947 P.2d 700 (1997), concerned the validity under art. I, § 72 of a compelled blood alcohol test under former RCW 46.20.308(3) for one suspected of vehicular homicide. Id . at 179, 183, 804 P.2d 558. The court unanimously3 ruled that while the blood draw was a search under both the Fourth Amendment and art. I, § 7, it also was reasonable and constitutional under both provisions. Id . at 183-85, 804 P.2d 558. The court had reached the same conclusion in an earlier vehicular homicide case, State v. Judge , 100 Wash.2d 706, 711-12, 675 P.2d 219 (1984) (taking blood was a reasonable search and seizure under both constitutions).

¶ 11 Similarly, the United States Supreme Court on occasion has had opportunity to consider challenges to various aspects of state implied consent laws. E.g. , California v. Trombetta , 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (due process did not require preservation of breath sample tested by state); South Dakota v. Neville , 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (State could use evidence of refusal to consent to blood alcohol test at trial without offending privilege against self-incrimination); Mackey v. Montrym , 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) (due process did not require hearing prior to revocation of driver’s license for refusal to consent to testing).

¶ 12 That Court also has had the opportunity to consider blood alcohol testing cases that arose outside of a state’s implied consent law. In Schmerber v. California , 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Court faced a situation where officers at a hospital had obtained a blood sample from a suspected drunk driver who had refused to consent to the blood draw. 384 U.S. at 758-59, 86 S.Ct. 1826. After concluding that the Fifth Amendment did not apply, the Court turned to the Fourth Amendment. Id . at 760-66, 86 S.Ct. 1826. Recognizing that a search warrant "ordinarily" would be required, the court nonetheless upheld the search due to the dissipation of alcohol and the delay caused by taking the defendant to the hospital. Id . at 770-72, 86 S.Ct. 1826. In those circumstances, the acquisition of the blood alcohol "was an appropriate incident to petitioner’s arrest." Id . at 771, 86 S.Ct. 1826.

¶ 13 Nearly a half century later, the Court revisited Schmerber in Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696. As in the earlier case, the suspected drunk driver refused to consent to a test and blood was thereafter taken from him at a hospital. Id . at 145-46, 133 S.Ct. 1552. After the lower courts had suppressed the evidence, the United States Supreme Court considered Missouri’s argument that Schmerber authorized a per se rule permitting the warrantless taking of blood in all drunk driving cases. Id . at 146-48, 133 S.Ct. 1552. Rejecting the per se rule, the Court stressed that the exigent circumstances exception was always dependent on the totality of the circumstances. Id . at 156, 133 S.Ct. 1552. In its analysis, the Court noted that a search incident to arrest was a categorical exception to the warrant requirement and did "not require an assessment of whether the policy justifications underlying the exception, which may include exigency-based considerations, are implicated in a particular case." Id . at 150 n.3, 133 S.Ct. 1552. Because there was no exigency established, the Court affirmed the suppression ruling. Id . at 165, 133 S.Ct. 1552.

¶ 14 The Court soon thereafter had the opportunity to look at the intersection of state implied consent laws and the Fourth Amendment in Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016). At issue in those consolidated cases were state implied consent laws that purported to offer a choice to refuse testing, but then treated a refusal as a crime. ––– U.S. at –––– – ––––, 136 S.Ct. at 2169-73, 195 L.Ed.2d at 571-74. One petitioner was convicted of a crime for refusing to take a blood test, one was convicted for refusing to take a breath test, and the third consented to a blood test, but lost his license as a consequence of the test results. Id . Noting that exigent circumstances were not at issue in the consolidated cases, the Court turned to the issues presented: (1) the application of the search incident to arrest doctrine to the breath and blood tests, and (2) the effect of criminalizing a refusal to consent on the informed consent decision. Id . ––– U.S. at ––––, 136 S.Ct. at 2172-73, 195 L.Ed.2d at 574.

¶ 15 The Court stated that it had been recognized long before the constitution was adopted that officers could lawfully search the person they had arrested. Id . ––– U.S. at ––––– – ––––, 136 S.Ct. at 2173-76, 195 L.Ed.2d at 576-78. The Court stressed that the search incident to arrest exception was categorical, its prior decision in Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), notwithstanding. Id . ––– U.S. at ––––, ––––, 136 S.Ct. at 2175-76, 2183, 195 L.Ed.2d at 578,...

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