State v. Olsen
| Decision Date | 24 May 2016 |
| Docket Number | No. 46886–7,46886–7 |
| Citation | 374 P.3d 1209,194 Wash.App. 264 |
| Court | Washington Court of Appeals |
| Parties | State of Washington, Appellant, v. Brittanie J. Olsen, Respondent. |
Michael Edward Haas, James Mitchell Kennedy, Jefferson County Prosecuting Attorney, Po. Box 1220, Port Townsend, WA, 98368–0920, for Appellant.
Catherine E. Glinski, Glinski Law Firm PLLC, Po. Box 761, Manchester, WA, 98353–0761, for Respondent.
¶ 1 The State appeals the superior court's decision to vacate a provision of Brittanie Olsen's district court sentence requiring her to submit to random urinalysis screens (UAs) as a condition of her misdemeanor probation. The superior court found that a random UA would be an unconstitutional search because it could be required without a well-founded suspicion of a probation violation.
¶ 2 We hold that (1) the district court had the authority, pursuant to RCW 3.66.067
and RCW 46.61.5055,1 to impose random UAs as a condition of Olsen's misdemeanor probation, (2) the random UA probation condition does not violate article I, section 7 of the Washington Constitution for an offender on probation for driving under the influence (DUI) because a DUI probationer does not have a privacy interest in preventing the use of his or her urine to ensure compliance with a probation condition prohibiting the consumption of alcohol, marijuana, or non-prescribed drugs. Accordingly, we reverse the superior court.
¶ 3 In June 2014, Olsen pleaded guilty to driving under the influence. The district court imposed a sentence of 364 days, with 334 days suspended.
¶ 4 As a condition of Olsen's suspended sentence and probation, the district court ordered that she could not consume alcohol, marijuana, or non-prescribed drugs, and that “random urine analysis screens will be used to ensure compliance with conditions regarding the consumption of alcohol and controlled substances.” Clerk's Papers (CP) at 5. Olsen objected to the condition and requested that the district court strike it from Olsen's sentence. The district court disregarded Olsen's request to strike the condition.
¶ 5 Olsen appealed to the superior court, which vacated Olsen's sentence and ordered the district court to resentence Olsen without the random UA condition. The State appeals.
¶ 6 The State argues that the district court has authority to impose a random UA probation condition under RCW 3.66.067
and RCW 46.61.5055 for a misdemeanor sentence.2 We agree.
, a district court may place a defendant on probation and “prescribe the conditions thereof.”
Based on this authority, a district court has broad discretion to impose probation conditions. State v. Deskins , 180 Wash.2d 68, 78, 322 P.3d 780 (2014)
. This discretion includes the imposition of conditions tending to prevent the future commission of crimes. Id. at 77, 322 P.3d 780.
¶ 8 Enforcing a prohibition of alcohol, marijuana, or non-prescribed drug consumption through random UAs would tend to prevent the commission of alcohol-related or drug-related crimes. Given a district court's broad discretion to impose probation conditions, we hold that a district court has statutory authority under RCW 3.66.067
to impose a probation condition that requires random UAs to monitor compliance with a condition prohibiting the consumption of alcohol, marijuana, or non-prescribed drugs.
¶ 9 In addition, RCW 46.61.5055
applies specifically to probation conditions for alcohol and drug violators. RCW 46.61.5055(5)(b) states:
If the court orders that a person refrain from consuming any alcohol, the court may order the person to submit to alcohol monitoring through an alcohol detection breathalyzer device, transdermal sensor device, or other technology designed to detect alcohol in a person's system .
(Emphasis added.) UAs are “designed to detect alcohol in a person's system” as allowed in this provision. Further, this provision does not expressly require some particularized reason for ordering a UA. The methods specifically listed—breathalyzer and transdermal devices—may involve random testing. Therefore, under the plain statutory language, a district court has authority under RCW 46.61.5055(5)(b)
to order random UAs.
¶ 10 RCW 46.61.5055(11)
also states:
The court may impose conditions of probation that include nonrepetition, installation of an ignition interlock device on the probationer's motor vehicle, alcohol or drug treatment, supervised probation, or other conditions that may be appropriate .
(Emphasis added.) Random UAs monitoring for alcohol, marijuana, or non-prescribed drug use fall under the “other conditions that may be appropriate” catchall provision in RCW 46.61.5055(11)
.
¶ 11 Accordingly, we hold that the statutory language of RCW 3.66.067
and RCW 46.61.5055(5) and (11) provided the district court with the authority to impose Olsen's random UA probation condition.
¶ 12 Olsen argues that even if the district court had statutory authority to impose the random UA condition, enforcement of that condition would violate her right to remain free from searches not authorized by law under article I, section 7 of the Washington Constitution
. We disagree.
¶ 13 The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Similarly, article I, section 7 of the Washington Constitution
provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Our Supreme Court has recognized that article I, section 7 may provide greater protection to an individual's right of privacy than the Fourth Amendment under some circumstances. See
State v. Meneese , 174 Wash.2d 937, 946, 282 P.3d 83 (2012). The State concedes that article I, section 7 provides broader protection here, and therefore we analyze this issue under that provision.3 We review questions of constitutional construction de novo.
York v. Wahkiakum Sch. Dist. No. 200 , 163 Wash.2d 297, 302, 178 P.3d 995 (2008)
.
¶ 14 The threshold question under article I, section 7
is whether the challenged action constitutes a disturbance of a person's private affairs. State v. Surge , 160 Wash.2d 65, 71, 156 P.3d 208 (2007). The collecting and testing of a person's urine generally constitutes a disturbance of a person's private affairs and is a search. See, e.g. , York , 163 Wash.2d at 307, 178 P.3d 995 ;4
State v. Rose , 146 Wash.App. 439, 455, 191 P.3d 83 (2008) ; Robinson v. City of Seattle , 102 Wash.App. 795, 812, 10 P.3d 452 (2000).
¶ 15 Washington courts have held in several cases that suspicionless UA testing is an unconstitutional search. In York , the Supreme Court held that article I, section 7
prohibits suspicionless, random UA testing of public school athletes. 163 Wash.2d at 316, 178 P.3d 995. In Rose, this court held that article I, section 7 prohibits suspicionless, weekly UA testing of criminal defendants released from custody before trial. 146 Wash.App. at 455–58, 191 P.3d 83. In Robinson, Division One of this court held that article I, section 7 prohibits pre-employment UA testing for positions that do not directly implicate public safety. 102 Wash.App. at 828, 10 P.3d 452. However, none of these cases involved a person on probation after being convicted of DUI.
¶ 16 The issue here is whether suspicionless, random UA testing violates article I, section 7
for an offender on district court probation for a DUI conviction.
¶ 17 Probationers have a diminished right of privacy under article I, section 7
. E.g. , State v. Jardinez , 184 Wash.App. 518, 523, 338 P.3d 292 (2014) ; State v. Lucas , 56 Wash.App. 236, 240, 783 P.2d 121 (1989). Probationers have diminished privacy rights because they are serving the sentence for their crimes and remain in the custody of the law even though they have been released from confinement. State v. Reichert , 158 Wash.App. 374, 386, 242 P.3d 44 (2010)
. Therefore, the State may supervise a probationer closely. Jardinez , 184 Wash.App. at 523, 338 P.3d 292.
¶ 18 Because of their diminished privacy rights, probationers may be subject to warrantless searches of their person and property as part of the legitimate operation of the probation process. Jardinez , 184 Wash.App. at 523, 338 P.3d 292
. In general, a warrantless search of a probationer is constitutional if that search is reasonable. State v. Simms , 10 Wash.App. 75, 84, 516 P.2d 1088 (1973) ; see also
State v. Campbell , 103 Wash.2d 1, 22, 691 P.2d 929 (1984). This court recognized in Simms that a probation officer need not have traditional probable cause in order to conduct a constitutionally permissible warrantless search of a probationer. 10 Wash.App. at 85–86, 516 P.2d 1088. Instead, the test for a constitutional search is whether a probation officer has a “well founded suspicion” that a parole violation has occurred. Id. at 88, 516 P.2d 1088.
addressed only the Fourth Amendment. Id. However, subsequent cases have applied the “well founded suspicion” requirement under article I, section 7.5
E.g. , Lucas , 56 Wash.App. at 243–44, 783 P.2d 121 ; State v. Patterson , 51 Wash.App. 202, 205, 752 P.2d 945 (1988).
¶ 20 Olsen argues that probationers retain a reasonable expectation of privacy in their bodily functions despite their diminished right to privacy. We hold that offenders on probation for DUI convictions do not have a privacy interest in preventing the random collection and testing of their urine when used to insure compliance with a probation condition prohibiting the consumption of alcohol, marijuana, and/or non-prescribed drugs. Therefore, the “well founded suspicion” requirement is inapplicable here.
¶ 21 A person generally...
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State v. Olsen
...with a probation condition prohibiting the consumption of alcohol, marijuana, and/or nonprescribed drugs." State v. Olsen, 194 Wash.App. 264, 272, 374 P.3d 1209 (2016). Olsen then petitioned this court for review, which was granted. State v. Olsen , 186 Wash.2d 1017, 383 P.3d 1020 (2016).IS......