Recently, an Oregon Appeals Court found that a suspected intoxicated driver was ‘coerced’ into providing a blood test. Police and prosecutors say a court of appeals ruling will make it more difficult to investigate and prosecute suspected drunken drivers. Although a man accused of drunken driving gave his consent to have his blood drawn for testing, the Oregon Court of Appeals ruled this week that the consent was coerced and should be suppressed. In a 6-4 decision, the appellate court found that the man’s consent was not voluntary because he agreed after a police officer read him the penalties of not complying, as required by state law. The court also ruled that the officer, who had probable cause to believe the driver was intoxicated, could have obtained a search warrant by phone without sacrificing evidence and should have done so.Washington drivers have likewise given their consent and this recent ruling may serve as a model for future challenges here in Washington. Currently, a DUI arrestee is most often requested to give a breath sample and the person is likewise informed of the consequences of refusing a sample, or providing a sample. These warnings are called Implied Consent Warnings and are found in RCW 46.20.308 and state the following:
(a) If the driver refuses to take the test, the driver’s license, permit, or privilege to drive will be revoked or denied for at least one year; and (b) If the driver refuses to take the test, the driver’s refusal to take the test may be used in a criminal trial; and (c) If the driver submits to the test and the test is administered, the driver’s license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if the driver is age twenty-one or over and the test indicates the alcohol concentration of the driver’s breath or blood is 0.08 or more, or if the driver is under age twenty-one and the test indicates the alcohol concentration of the driver’s breath or blood is 0.02 or more, or if the driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504; and (d) If the driver’s license, permit, or privilege to drive is suspended, revoked, or denied the driver may be eligible to immediately apply for an ignition interlock driver’s license.
If a driver refuses to provide a breath sample, something that they have a right to do and are specifically told of this right, an officer may apply for a search warrant for the purpose of drawing blood from the arrestee against that person’s will. You will notice that the above warnings do not inform the person of this possibility. Oregon has a similar provision which the Appeals Court appears to have alluded to and heartily endorsed.
On this point, Oregon is not alone as the Washington Supreme Court recently endorsed this search warrant procedure in the case of City of Seattle v. St. John. Under normal circumstances a blood sample is not usually requested and drawn because breath testing is done. However, in certain circumstances blood is sought first. These circumstances are where the suspected driver is; 1) receiving aid and a breath test machine is not available; 2) the driver has injured another person; 3) the driver killed another person; or 4) the driver is unconscious or otherwise incapable of providing a breath sample and the officer has probable cause to believe that person was DUI.
An additional circumstance where police can request a blood sample is if a person has undergone an exam with a Drug Recognition Evaluation (DRE) and the officer suspects the person to be under the influence of a drug.
Under current Washington law, regardless whether a person arrested for DUI is requested ot provide breath or blood, their right to refuse either test can be ignored and they can have blood taken from them with force under the authority of a search warrant. While this search warrant has been recently upheld, the ruling in the Oregon Court of Appeals may provide new life for a future challenges in light of the fact that the Washington State Constitution gives more protection to citizens from these types of searches. However, it will take a lawyer with unique experise in Washington DUI law to recognize the right case and prepare it for such a important challenge. At Fox Bowman Duarte, both our Bellevue and our Bellingham locations are staffed with talented lawyers that possess this unique skill set.