State v. Olivas

• Court: Washington Supreme Court
• Writing for the Court: SMITH; ANDERSEN; UTTER; JOHNSON
• Citation: State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (Wash. 1993)
• Decision Date: 12 August 1993
• Docket Number: No. 59436-8
• Parties: , 62 USLW 2139 STATE of Washington, Respondent, v. Joseph M. OLIVAS, et al., Appellants. En Banc

Page 73

122 Wn.2d 73

856 P.2d 1076, 62 USLW 2139

STATE of Washington, Respondent, v. Joseph M. OLIVAS, et al., Appellants.

No. 59436-8.

Supreme Court of Washington,

En Banc.

Aug. 12, 1993.

Paul J. Wasson, Spokane, for appellants.

Jeffrey C. Sullivan, Yakima County Prosecutor, Bruce Hanify, Deputy, Yakima, for respondent.

SMITH, Justice.

These are consolidated appeals challenging orders of the Yakima County Superior Court authorizing the State to perform DNA blood tests on Appellants pursuant to RCW 43.43.754. The Court of Appeals, Division Three, certified the cases to this court pursuant to RCW 2.06.030. We accepted certification on August 7, 1992. We affirm the orders of the trial court.

STATEMENT OF FACTS

Each of the seven appellants (Joseph M. Olivas, Norman M. Skyles, Jorge V. Gallardo, Robert Ayala, Arnoldo A. Alcaraz, Alejandro L. Cruz and Michael C. Briggs) (Appellants) entered pleas of "guilty" to the crimes charged or to reduced charges. In each case a blood sample was ordered for deoxyribonucleic acid (DNA) identification purposes pursuant to RCW 43.43.754. ¹ The record in each case contains no indication that blood or semen was passed during commission of the crimes, although in some cases their presence could be inferred. The record does not indicate whether Appellants were informed that a consequence of their guilty pleas was extraction of blood for DNA identification purposes.

State v. Joseph M. Olivas

Appellant Joseph M. Olivas was charged with first degree burglary and first degree assault in the Yakima County Superior Court. On April 17, 1991, he pleaded "guilty" to second degree assault and was sentenced to 9 months'incarceration. The burglary count was dismissed. At the hearing the State requested the court to order a blood sample from Appellant Olivas to test for HIV (human immunodeficiency virus) pursuant to RCW 43.43.754 because this was a "violent offense". The Honorable Steven M. Brown observed that such a blood test was not in order because there had been no physical contact and that it would be a waste of time and taxpayer money to perform the test. Judge Brown also questioned whether the language of the statute reflected the true intent of the legislature. He indicated that he would not order the HIV blood test in the absence of a sound public policy requiring it. ²

Nine days later, at a hearing on April 26, 1991, the State asked Judge Brown to order a blood sample from Mr. Olivas for DNA identification analysis pursuant to RCW 43.43.754 because second degree assault was a "violent offense", indicating that at the earlier hearing the parties had mistakenly believed that RCW 43.43.754 mandated HIV testing for this offense instead of DNA testing, and that the court had properly denied an HIV test because this was not a "sex offense". Appellant Olivas' counsel argued that no probable cause existed, that there was no need to gather any additional evidence which might serve to justify this type of warrantless search and that the search would violate Mr. Olivas' constitutional rights. The State countered that following the procedures under the statute was not an unreasonable intrusion because the statute applied only to certain crimes and the procedure was analogous to fingerprinting. Judge Brown noted the constitutional challenge to the statute, but concluded that he would apply the statute as written. He signed an order directing DNA testing, but stayed it pending this appeal. ³

State v. Norman M. Skyles

On January 2, 1991, Appellant Norman M. Skyles reported to the Selah Police that he believed he had molested his 8-year-old niece. After further investigation, he was charged in the Yakima County Superior Court with child molestation in the first degree. ⁴

On March 15, 1991, Appellant Skyles pleaded "guilty" to indecent liberties before the Honorable Susan L. Hahn. On May 28, 1991, he was sentenced to 36 months' incarceration by the Honorable Heather K. Van Nuys. His counsel objected to the State's request for DNA testing as unconstitutional, arguing that there was no probable cause, that it constituted an illegal search, and that it was only being used to accumulate evidence against future uncommitted offenses. Counsel nevertheless stated that he had no objection to HIV testing. Judge Van Nuys observed that there was probable cause to require the test based upon Appellant Skyles' plea of "guilty". She then ordered the test, concluding that the search by DNA testing was no longer illegal. On May 29, 1991, Appellant Skyles filed a notice of appeal from that order. ⁵

State v. Jorge V. Gallardo

Appellant Jorge V. Gallardo was arrested on May 4, 1991, and subsequently charged in the Yakima County Superior Court with second degree assault. On June 27, 1991, he pleaded "guilty" to that charge before Judge Van Nuys and was sentenced to 9 months' incarceration. His counsel objected to the State's request for DNA testing as an unreasonable search and seizure, arguing that there was no probable cause to search for new evidence after the guilty plea, and that such evidence was only being accumulated for future criminal prosecutions. Judge Van Nuys equated DNA testing with mug shots and fingerprints. Appellant Gallardo's counsel distinguished DNA testing as invasive and argued that while blood tests are considered searches under federal law, mug shots and fingerprints are not. Judge Van Nuys concluded that Mr. Gallardo's privacy rights were outweighed by the State's interest in future law enforcement, overruled the objection and ordered DNA testing. On July 2, 1991, Appellant Gallardo filed a notice of appeal from that order. ⁶

State v. Robert Ayala

Appellant Robert Ayala was charged in the Yakima County Superior Court with attempted second degree rape arising out of an incident on March 24, 1991. On May 5, 1991, he pleaded "guilty" to that charge before Judge Pro Tempore Michael E. Schwab. On June 13, 1991, Mr. Ayala was sentenced to 36 months' incarceration by the Honorable Susan L. Hahn. She entered findings of fact and conclusions of law to justify an exceptional sentence below the standard range and ordered DNA testing. She found that there was no actual sexual contact between Mr. Ayala and the victim. Mr. Ayala's counsel objected to DNA testing as an unreasonable search, declaring that there was no probable cause to accumulate evidence for future uncommitted crimes, that blood samples are quite distinct from fingerprints and photographs, that DNA testing is not accepted nationwide as meeting the Frye test, and that a high rate of recidivism does not justify unreasonable searches. Judge Hahn acknowledged a distinction between fingerprints and DNA for identification, but concluded that the statute mandates DNA testing. She ordered the test. On June 25, 1991, Appellant Ayala filed a notice of appeal from that order. ⁷

State v. Arnoldo A. Alcaraz

Appellant Arnoldo A. Alcaraz was charged in the Yakima County Superior Court with first degree assault arising out of an incident on March 26, 1991. On June 13, 1991, before Judge Hahn, he pleaded "guilty" to first degree assault and was sentenced to 3 months' incarceration. His counsel objected to the State's request for DNA testing, arguing that the court had already heard argument on the matter. Judge Hahn agreed, stating "I will incorporate your argument in the Ayala case by reference." She also incorporated her own and the State's responses in that case. She ordered DNA testing. On June 25, 1991, Appellant Alcaraz filed a notice of appeal from that order. ⁸

State v. Alejandro L. Cruz

Appellant Alejandro L. Cruz, age 18, was charged in the Yakima County Superior Court with second degree rape of a child arising out of an act of sexual intercourse with his 13-year-old girlfriend on June 6, 1991. On July 10, 1991, before Judge Van Nuys, he pleaded "guilty" to second degree child molestation and was sentenced to 15 months' incarceration. His counsel objected to the State's proposed order for DNA testing, asking the court to "incorporate our previous argument by reference to save time." Judge Van Nuys noted the objection, considered the prior arguments, ruled the statute constitutional and ordered DNA testing. On July 11, 1991, Appellant Cruz filed a notice of appeal from that order. ⁹

State v. Michael C. Briggs

Appellant Michael C. Briggs was charged in the Yakima County Superior Court with first degree assault and first degree robbery arising out of a demand for money from an acquaintance and a stabbing on June 18, 1991. On July 10, 1991, before Judge Van Nuys, he pleaded "guilty" to first degree robbery and was sentenced to 70 months' incarceration. The other count was dismissed. Judge Van Nuys ordered DNA testing over objection of defense counsel. On July 11, 1991, Appellant Briggs filed a notice of appeal from that order. ¹⁰

All the appellants make only one assignment of error: that in each case the trial court erred by ordering a blood sample for DNA purposes pursuant to RCW 43.43.754.

QUESTIONS PRESENTED

The questions presented by these consolidated cases are (1) whether the drawing of blood for DNA testing pursuant to RCW 43.43.754 constitutes an unreasonable search and seizure under the state and federal constitutions, (2) whether RCW 43.43.754 violates Appellants' right to due process under both constitutions, (3) whether RCW 43.43.754 violates Appellants' right to equal protection of the laws under both constitutions, and (4) whether Appellants' pleas of "guilty" were knowingly, intelligently and voluntarily made even though they were not told that a consequence of their pleas would be extraction of blood for DNA testing. ¹¹

DISCUSSION

Constitutional Factors: State v. Gunwall ¹²

In several recent cases where counsel has not thoroughly briefed and discussed state constitutional grounds independently of federal constitutional grounds, this court has declined to consider whether the Washington Constitution protects...