Like most states, Washington uses an implied consent statute to punish anyone who refuses to submit to a breathalyzer test upon being accused of drunk driving. In a ruling last Thursday, the Washington Supreme Court upheld the right of police to use force to remove blood from a motorist even after an informed decision to refuse the test has been made. The high court argued that recent changes to the law essentially eliminated the need to seek consent when a warrant is obtained.
The court made its decision in the case of Robert St. John who crashed his motorcycle in Seattle on July 24, 2005. Responding to the scene that day, Seattle Police Officer Eric Michl noticed St. John had slurred his words when speaking. At Harborview Hospital, Michl arrested St. John for driving under the influence of alcohol (DUI) and read the standard warning about the consequences of refusing a blood alcohol test. Although St. John refused to submit, Michl had a judge standing by and St. John’s blood was removed from his body by force. At trial, Michl testified that he did not warn St. John that he planned to take his blood regardless of his answer.
“The warning given to Mr. St. John was implicitly misleading, violating his due process rights,” St. John’s attorney, Ryan Robertson, argued. “The warning told him he had the right to refuse the test, but never told him the state could obtain his blood without his consent with a warrant if he refused; thus rendering the right to refuse meaningless.”
A municipal court agreed that Michl’s procedure was unfair and illegal, but a superior court reversed the decision. The supreme court’s final ruling is that Michl’s actions were fair and legal.
“Obtaining a blood alcohol test through the implied consent statute is a separate process from obtaining a blood alcohol test pursuant to a warrant, and the officer made no representation to St. John that the state could not obtain a blood alcohol test pursuant to a lawful search warrant,” Justice Susan Owens wrote for the majority.
By separating the two ways to obtain evidence—by consent and by warrant—the majority sidestepped a provision of the implied consent statute explicitly prohibiting forced testing.
“If, following his or her arrest and receipt of warnings . . . the person arrested refuses upon the request of a law enforcement officer to submit to a test or tests of his or her breath or blood, no test shall be given except as authorized under subsection (3) or (4) of this section,” states RCW 46.20.308(5) (subsections 3 and 4 do not apply to the case at hand).
Justices Richard B. Sanders and James M. Johnson filed a dissent, arguing that this provision could not simply be ignored.
“Obtaining a blood sample from St. John by search warrant plainly violated the express prohibition of RCW 46.20.308(5) since St. John withdrew his consent and no exception under the statute applied,” Sanders wrote. “If we accept the majority’s reasoning, a driver’s refusal to consent under subsection (5) would be meaningless.”
The majority countered by citing a 2004 legislative amendment stating “neither consent nor this section precludes a police officer from obtaining a search warrant for a person’s breath or blood.” Because focusing on this provision would allow for the “efficient” conviction of those accused of DUI, the high court found no problem with Officer Michl’s conduct.
“The implied consent statute explicitly allows a police officer to obtain a blood alcohol test pursuant to a warrant, even after a driver refuses a voluntary blood alcohol test,” Owens concluded. “Neither due process nor equitable estoppel requires police officers to inform DUI suspects of the possibility of obtaining a warrant to collect evidence.”
Police: Open your door.
Criminal: No, I won’t do it.
Police: We have a warrant.
Criminal: Still won’t do it.
Police: (Break down door and enter forcefully)
Is this new?
No need to hold someone down and draw blood against their will. Simply change the law so that if you refuse the test, you will be considered guilty until you prove otherwise. Yes I know that this goes against every legal principle we have in this country, however too many innocent people are being killed by morons that continue to drive drunk in this country. If the powers that be really want to stop drunk driving, make the penalty for a first time offense the loss of your license for 10 years. Oh wait I forgot, the liquor lobby would not allow it.
I don’t think the liquor lobby has had any substantial pull in this country since before 1919.
Nobody wants to give up their constitutional rights, even when it comes to stopping drunk driving. *THAT* is what is stopping the powers that be from going all-out to stop drunk driving.
Those willing to give up liberty to obtain safety…and all that.
Do what’s within the structure of the law, and no more. Maybe all that needs to happen is for Washington state to amend the statement of rights read pursuant to the arrest to inform them that withholding consent can be overridden by warrant. At least if they’re jumping through all these legal hoops they’re going for a blood test, that measures actual, y’know, *blood* alcohol content. I can imagine idiots going through similar battles to get a worthless breath tests.
Washington State’s Supreme Court is elected rather than appointed, so this ruling, like ALL “safety” rulings is pandering to the public who have all been lulled into giving up any and all liberty in exchange for the illusion of safety. Safety is not, and never has been a right, but somehow society craves it above all else, and is willing to grant nearly unlimited power to any part of the State in trade. Safety is, and always has been an illusion, and no law, annd certainly no government can actually make anyone safe.
Forcible extraction of one’s blood flies in the face of both the 4th Amendment (unreasonable search and seizure) and the 5th (forcing you to testify against yourself), but the state has weaseled around these with the help of pandering representatives and justices, along with the neo-prohibitionists hiding behind the rallying call of “safety”. This has completely turned the concept of justice around and is being used to punish people for what they MIGHT do, not for what they have done.
Thomas Jefferson’s in-grave rotation must have hit the redline about now.
–chuck
I’m no lawyer, but it seems like the 2004 legislative amendment rendered RCW 46.20.308(5) meaningless (as the minority justice noted), but that’s what amendments to the law do, i.e. change the law. So what’s the big deal?
Chuck
The 4th and 5th amendments hold here (at least in their current interpretations) since the forcible taking of blood is only through a warrant, which requires the officer to present evidence of a probable crime to a judge. And speaking of which, there just happened to be a judge hanging around the hospital to grant the warrant?
That the police, with a warrant are allowed to take a bodily sample for purposes of investigating a crime is hardly unreasonable.
As for the warrant, there is undoubtedly a judge-on-speeddial an officer can cal.
BMWfan :
If the powers that be really want to stop drunk driving, make the penalty for a first time offense the loss of your license for 10 years.
The problem drunks aren’t first timers. Repeat offenders are the problem. Have the laws changed for them – a good start would be removing the ridiculously wide levels of judicial discretion in sentencing for REPEAT offenders. But good luck with that. See below.
Oh wait I forgot, the liquor lobby would not allow it.
Perhaps. Another lobbying group would be the drunk-driving-prevention & counseling industry.
Imprisoning repeat drunks costs money.
Allowing repeat drunks to work lets them attend classes, pay fines, court costs, probation officers, ankle bracelet costs, mandatory therapy costs. Many in the ‘helping’ professions who work with these drunks don’t want their meal tickets jailed.
Hmmm…well, I am a lawyer (though not licensed in nor familiar with Washington law) but it seems to me the implied consent law and the warrant are separate and distinct issues. If the implied consent law is similar to the expressed consent law we have in CO it primarily affects the driver’s license, not the determination of guilt for DUI.
And I would agree with ClutchCarGo re: the Warrant. That blood cannot be forcibly withdrawn under the implied consent law doesn’t mean it can’t be forcibly withdrawn under the criminal law pursuant to a warrant. Remember also that the 4th amendment only prohibits unreasonable searches and seizures: the extraction of blood in this case was done via a warrant which seems pretty much “reasonable” to me.
It’s also not a 5th amendment issue because the chemical contents of a persons blood are not “testimony.”
Is your body not yourself? Warrant or not, you can’t make someone bear witness against themselves.
I see all of you are in favor of drunks splattering women and children along our highways.
In France, if you are accused of fathering a child, the police will come to your office and in front of your collegues draw blood forcefully for a DNA test. If you are the daddy, there is no skipping out on child support.
The last time I looked, France was not as rampant with crime and the ills of this country.
If I spoke the language I would be there now.
Want blood, here’s my arm.
Is your body not yourself? Warrant or not, you can’t make someone bear witness against themselves.
The 5th amendment says you can’t be forced to be a witness against yourself, i.e. forced to give testimony.
But the chemical contents of your blood are not testimony any more than your fingerprints or your DNA are testimony. Both can be taken without your consent based on probable cause, at least in some jurisdictions.
@ihatetrees
If they lost their license for 10 years for the first infraction, I doubt there would be many repeat offenders, although there are unfortunately people out there that will never learn no matter how severe the punishment.
@Chuck Goolsbee & cdotson:
I agree that giving up constitutional rights is a slippery slope that none of us wants to go down, however having seen firsthand how the death of a child at the hands of a drunk driver impacts the lives of the parents left behind,I wish this living hell on no one, friend or enemy. There has to be a reasonable solution that eliminates this scourge from our highways. Isn’t calling a taxi and paying the $40 or $50 it costs preferable to the fines, jail time, lawyer fees and surcharges that such a substantial lapse of judgement causes? It never really seems that bad until the tragedy happens to someone you love.
I am totally against this. What will the government do next time? Plant a chip in your body?
To punish DUI offenders, just make a law such that:
1) He can cooperate or refuse to give a sample
2) If he refuses and if police does have some concrete evidence, make the refusal a case of “obstruction of justice” with a penalty greater than DUI itself.
3) Police should pay for the blood sample, at $1000 per draw. As a deterrence for abuse. Of course, the police can fine the offender more than $1000 if he is indeed convicted in a court.
You all missed the most important point of all…
Many of the cops and judges are VAMPIRES, they won’t stop until they drain this country dry! We MUST stop them from STEALING ALL OUR PRECIOUS BODILY FLUIDS! PURITY OF ESSENCE! PURITY OF ESSENCE!
@SexCpotatoes,
I don’t think we missed the point, and I do not see yours.
This just isn’t an unreasonable decision. The notion that police can seize evidence with a warrant is what the Fourth Amendment says. What is bad about “implied consent” is that it sidesteps the Fourth Amendment and gives powers to the police they are not Constitutionally entitled to exercise.
But when they follow the Constitution and do get a warrant – well, that’s the way it is supposed to work.
There is a difference between protecting individual rights and protecting criminals. The Warrant Clause protects individual rights. Precluding police from getting evidence with a lawfully issued search warrant merely protects criminals.
Some of the earlier comments, incidentally, misunderstand the legal issues. As some stated, taking blood is a seizure of evidence, not compelled testimony. Testimony is talking or expressive activity, such as flipping off the cop. That cannot be compelled. But a blood draw is a collection of evidence, no different in theory than any other search and seizure.
Searches are not prohibited by the Constitution. Only “unreasonable” searches and seizures are prohibited. If there is probable cause AND a warrant issued by a judge based on that probable cause, then the search is definitionally not unreasonable.
Statutes can restrict the scope of police authority more than does the Constitution, but cannot expand it. Implied Consent statutes are an attempt to expand police authority by artificially inferring consent to a search from an act, driving, that really does not imply any such thing. They’re an attempt to end run the Fourth Amendment with a legal fiction of consent.
But an actual warrant – that is a Constitutionally acceptable method of collecting evidence against someone’s will and without consent.
Warrants, of course, have to be issued by judges who are not involved with the police, i.e., the “neutral and detached magistrate.” That represents a protection against police abuse.
There’s really no basis for complaining about all of this on the basis of police abuse, nor does any family tragedy enter into it either.
It’s simply the police following the Constitutional rules. To extent that this is a balance of individual liberties against society’s interest in protection, it’s the balance made in 1789 when the Constitution was ratified.
Everybody here is up in arms over drunk driving when the REAL hazard is drivers texting. I must assume most of the posters don’t drive much.
Of course the DUI industry is big business. It’s hard to do much more than fine texter. No counselors, no jails, no probation officers, no insurance rate increase and on and on. I’m not condoning drunk driving by any means but the true hazard on the roads is being misidentified.
CyCarConsulting said
“The last time I looked, France was not as rampant with crime and the ills of this country.
If I spoke the language I would be there now.
Want blood, here’s my arm.”
As this is a car site, here’s some French car stories:
http://www.phespirit.info/places/2005_11_nice_1.htm
or this:
http://www.casavaria.com/cafesentido/2009/01/03/1000/rioters-burn-over-1100-cars-in-france-in-now-annual-arson-rite/
Read down:
“A total of 36,700 cars were burned in France in the first eleven months of 2008. ”
I guess my ideas and yours of what constitutes crimes and ills must be completely different.
Or maybe that was the French version of C4C except you got to collect from your insurance agent.
CyCarConsulting:
The last time I looked, France was not as rampant with crime and the ills of this country.
If you can read a bit of French, google ” l’insécurité”. Wide swaths of France are no longer secure for the average Jean (or especially Jeanette) to walk or ride through.
While I respect French culture (and red Burgundy) more than the average right of center yankee, their crime problem is far more random and spread out than the US.
Admittedly, overall violent US crime is spiked due to drug turf related killing concentrated in very specific areas. Delete those areas, and the rest of the USA is safer than a Swiss village.
If I spoke the language I would be there now.
Good luck. French labor laws and emigration laws are tough.
Tell me more about the issuing of warrants. How does it work (in real life not in law school)? Does the judge have to see the alleged perpetrator to issue a warrant? Does the judge simply take the word of the police officer without any other independent testimony? Can the alleged perpetrator have a lawyer defend his interests to the judge before the warrant is issued? Is the only recourse of having obtained a false warrant to throw the evidence out?
Seems to me it all hangs on getting a warrant. Therein lies the rub.
Packard, et al: “Implied Consent” laws do not sidestep the 4th amendment because they are not linked to the criminal prosecution.
Implied consent laws are conditions of receiving a driver’s license, which is a privilege, not a right.
That’s why the penalty for refusing a test is not criminal (prosecution) it is a civil administrative procedure to revoke the license (which can be contested, BTW.)
Now, if a driver does consent to a blood, breath or urine test, then that evidence can be introduced at trial. But the implied or express consent laws are not part of the criminal law, they are part of the civil law relating to the issuance of driver’s licenses. As part of civil law, the 4th amendment prohibition against unreasonable search and seizure does not apply nor does the 5th amendment privilege against self incrimination (you have no privilege against self-incrimination in a civil trial, ask anyone who’s ever been sued.)
To put it more simply, you can “opt out” of the implied/express consent laws if you want. All you have to do is not get a drivers license and not drive on public highways. No drivers license = no implied/express consent laws.
@SexCpotatoes,
Do you realize that fluoridation is the most monstrously conceived and dangerous communist plot we have ever had to face?
Next to the sham consistently perpetrated against the motorist, frankly our police force has been relegated to the role of modern day highwayman. I cannot remember when I have last seen one of my finest on the beat..