Under Washington law, police must advise individuals of the right to independent testing when a breath test is administered pursuant to the implied consent statute. Under a previous version of the statute, this information was also required for blood tests. A Washington appeals court has recently addressed whether police must still inform of the right to independent testing of blood when it is no longer specifically included in the statute.
The defendant was convicted of vehicular assault as a result of a two-car collision. The defendant appealed, arguing that blood test evidence should have been excluded because he was not informed he had the right to independent tests at the time the blood was taken.
According to the court’s opinion, the defendant caused the accident by crossing the center line. The defendant called 911. The police officer smelled alcohol and noticed signs of impairment at the scene. The defendant went to the hospital by ambulance. The trooper who spoke with the defendant at the hospital also smelled alcohol and observed signs of impairment. The defendant did not respond to the trooper’s requests for a field sobriety test or a portable breath test. Blood was subsequently drawn pursuant to a warrant. The defendant’s blood alcohol content was 0.12 three and a half hours after the collision.
The defendant was convicted of vehicular assault. The court ordered him to pay a DUI fine in addition to the other fines, fees, and restitution. The defendant appealed.
He argued his due process and equal protection rights were violated when the police failed to advise him of the right to independent testing of the blood evidence. He further argued ineffective assistance of counsel because his attorney failed to seek suppression of the evidence. The appeals court noted that the key issue in the defendant’s appeal was whether the police were required to inform him of the right to independent testing at the time of his arrest in 2014.
The appeals court pointed out that the Washington implied consent statute included both blood and breath tests and required the individual to be advised of the right to independent testing any time blood or breath tests were performed pursuant to implied consent. At that time, a blood or breath test under the statute was unlawful and subject to suppression.
The implied consent law changed, however, pursuant to Missouri v. McNeely in 2013. In that case, the U.S. Supreme Court held that taking blood from a DUI suspect without a warrant violated the individual’s Fourth Amendment rights. The implied consent statute was amended to remove references to mandatory blood draws. Thus, under the statute in effect at the time of the arrest, the statute required the independent testing advice for breath tests but not for blood tests.
The appeals court noted that the defendant’s constitutional right to investigate his case and develop evidence did not necessarily require that he be advised regarding independent testing. The court further noted that, in the case of blood evidence, the ability to test independently was still available at a later date. The appeals court found no due process issues with not informing the defendant of a right to independent testing.
The appeals court also rejected the defendant’s equal protection argument that the rule should apply to individuals subject to blood testing because it applied to those subject to breath testing. The appeals court found that the two groups were not similarly situated. Breath tests can be procured as part of a search incident to arrest without any judicial oversight. Furthermore, the sample cannot be retested. Additionally, there are rigid criteria for the way in which the test is administered. The court found that a defendant has “a pressing need for a timely competent retest in order to challenge the State’s information.” The same circumstances do not apply to blood tests.
The appeals court reversed the portion of the sentence that required the defendant to pay a “DUI fine.” The court is to assess a fine against a defendant convicted of Driving under the influence or Physical control of a vehicle under the influence pursuant to RCW 46.61.5055. The defendant, however, was convicted of vehicular assault. Although that conviction required the state to prove intoxication as defined under the Driving under the influence statute, he was not convicted under that statute. The appeals court found there was no legislative authority for this fine and reversed.
This case shows that the court distinguishes between blood and breath tests, and blood evidence will not be suppressed because the police did not advise of the right to independent testing.
If you have been charged with an alcohol-related offense in Washington, you need an aggressive defense. Contact the Washington DUI attorneys at Blair & Kim, PLLC by phone at (206) 622-6562 or through our website to discuss your case.
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Photo: FreeImages.com / Fran Linden