FILED
JANUARY 31, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32653-5-111
Respondent, )
)
V. )
)
BRYAN JACOB STORMS, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. -Bryan Storms appeals his conviction for vehicular homicide and
four other crimes arising from an egregious motor vehicle collision. We affirm the
convictions and the challenged basis for the exceptional sentence, but remand for re-
sentencing because the State failed to establish an exigency that excused the need for a
search warrant before drawing blood.
FACTS
Mr. Storms, traveling at least 45 m.p.h. on a Spokane street in a Honda Civic
while fleeing from a police officer, ran through a stop sign and smashed into a pickup
truck driven by Kevin Smith at 12:25 p.m. on Sunday, February 10, 2013. The collision
sent the truck into the air before it knocked down a telephone pole. Mr. Smith was killed
at the scene. Two of the passengers in the Honda were injured.
No. 32653-5-III
State v. Storms
Storms fled the scene on foot, but a witness was able to direct officers to him. The
officer who took him into custody noted that Storms was sweating profusely and
constantly moving his limbs and body. Two other officers took custody of Storms and
conducted witness show ups. Meanwhile, emergency personnel had to take the two
passengers out of the Honda for medical treatment. Many observers had to be cleared
from the area and the accident scene secured. Ultimately, 23 officers took part in the
crime scene investigation.
A "baggie" of white powder, believed to be methamphetamine, was observed by
an officer. Medical personnel advised that Mr. Storms might need x-rays of his injuries.
The sergeant in charge of the scene directed two officers to take Storms to the hospital
and obtain a blood draw. They arrived at the hospital at 1:37 p.m. A drug recognition
expert (DRE) drove in from Ritzville, but Mr. Storms refused to submit to DRE testing.
Ultimately, blood was drown over the objection of Mr. Storms at 2:16 p.m. Subsequent
analysis revealed the presence of amphetamine and methamphetamine in the blood.
Three days after the accident, the prosecutor filed the four felony driving charges.
In each instance, it was alleged that an aggravating factor was present due to the multiple
current offenses and the defendant's high offender score. In addition, it was alleged that
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No. 32653-5-111
State v. Storms
the victim in count three suffered injuries more substantial than required to establish the
crime. 1
The defense moved to suppress the results of the blood draw, arguing that a search
warrant had been required to take the defendant's blood and that exigent circumstances
did not exist to excuse the failure. Rather than defending on the basis of the implied
consent statute, the State argued that exigent circumstances had existed. The trial court
ultimately agreed, concluding that exigencies existed due to the length of time needed to
obtain a search warrant, the dissipation of substances in the defendant's blood, and the
fear that medical treatment would further delay seizure of the blood.
The case proceeded to jury trial one year after the incident. A jury found Storms
guilty as charged of vehicular homicide, two counts of vehicular assault, and one count of
felony hit and run (fatality). Jury interrogatories on the first three counts indicated the
jury's unanimous agreement that Storms had committed each crime by all methods
alleged in the charging documents--by driving while under the influence (DUI), while
driving in a reckless manner, and while driving with disregard for the safety of others.
The jury also returned a special verdict on count three finding that the injuries to victim
1
The information subsequently was amended to add a count of driving while license
suspended in the third degree. The defendant pleaded guilty to that count prior to trial.
3
No. 32653-5-III
State v. Storms
Lynn Blumer substantially exceeded the level of bodily harm necessary to establish
substantial bodily injury.
The matter proceeded to sentencing. The court found that both charged
aggravating factors existed and declared an exceptional sentence. The court imposed a
total term of 448 months by running the standard range sentences on the first three counts
consecutively. Mr. Storms timely appealed to this court. Appropriate findings in support
of the suppression ruling and the exceptional sentence were entered.
Appointed counsel filed a brief solely attacking the evidence supporting the
special verdict on count three. Mr. Storms filed a statement of additional grounds (SAG)
challenging the court's ruling on the suppression hearing. This court directed both
counsel to brief the exigent circumstances issue, and then to file supplemental briefs as
additional opinions were released by the United States and Washington Supreme Courts.
Ultimately, the matter proceeded to argument before a panel of this court.
ANALYSIS
We consider first the issue initially presented by the SAG before turning to the
sufficiency of the evidence to support the special verdict.
Exigent Circumstances
This issue is complicated by the fact that the United States Supreme Court may, or
may not, have changed the rules governing this situation after the arrest in this case.
Believing that the rules had changed, the State tried to justify the blood draw on the basis
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No. 32653-5-III
State v. Storms
of a theory officers had not relied on during the arrest. We disagree that the State
established an exigency excusing the need to obtain a search warrant for Mr. Storms'
blood.
As it existed at the time of the arrest in this case, Washington's implied consent
statute provided:
Except as provided in this section, the test administered shall be of the
breath only. If an individual is unconscious or is under arrest for the crime
of felony driving under the influence of intoxicating liquor or drugs under
RCW 46.61.502(6), felony physical control of a motor vehicle while under
the influence of intoxicating liquor or any drug under RCW 46.61.504(6),
vehicular homicide as provided in RCW 46.61.520, or vehicular assault as
provided in RCW 46.61.522, or if an individual is under arrest for the crime
of driving while under the influence of intoxicating liquor or drugs as
provided in RCW 46.61.502, which arrest results from an accident in which
there has been serious bodily injury to another person, a breath or blood test
may be administered without the consent of the individual so arrested.
Former RCW 46.20.308(3) (2012). As written, the statute removed the ability of certain
defendants to revoke their consent to alcohol testing. State v. Judge, 100 Wn.2d 706,
710-711, 675 P.2d 219 (1984).
After charges were filed in this case, the United States Supreme Court issued its
decision in Missouri v. McNeely, 569 U.S._, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).
There the court concluded that the natural dissipation of alcohol in the bloodstream alone
did not justify a warrantless blood draw of a DUI suspect. 185 L. Ed. 2d at 702. The
court revisited its decision in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16
L. Ed. 2d 908 ( 1966), given the technological developments of the past half century. Id.
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No. 32653-5-111
State v. Storms
The court also noted that, unlike Missouri, many states such as Washington had chosen to
limit the circumstances in which nonconsensual blood draws could be taken. Id. at 713
n.9. It ultimately held that the Fourth Amendment requires officers obtain a warrant
where they can do so within a reasonable time, and where it will not "significantly"
undermine "the efficacy of the search." Id. at 707.
In response to McNeely, the Washington Legislature promptly amended the
implied consent statute. The second sentence ofRCW 46.20.308(3) was changed to read
the breath or blood test could be administered without consent "pursuant to a search
warrant, a valid waiver of the warrant requirement, or when exigent circumstances exist."
LAWS OF 2013, 2d Sp. Sess., ch. 35, § 36. 2 This version of the statute was in effect at the
time of the suppression hearing held in this case.
Before turning to the exigency argument, it is important first to note what we are
not deciding. The State has eschewed reliance on the former implied consent statute both
in the trial court and in briefing to this court. Accordingly, the validity of the former
implied consent statute's authorization of mandatory testing without consent is not before
us. The State has chosen solely to rely on the exigency exception to the search warrant
requirement.
2
The legislature deleted existing RCW 46.20.308(3) and enacted a similar
provision, RCW 46.20.308(4) in 2015. See LAWS OF 2015, 2d Sp. Sess. ch. 3, § 5.
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No. 32653-5-111
State v. Storms
Exigent circumstances excuse the need for a warrant where it is not practical for
the State to obtain a warrant because the inherent delay would "compromise officer
safety, facilitate escape or permit the destruction of evidence." State v. Smith, 165 Wn.2d
511,517, 199 P.3d 386 (2009) (internal quotation marks omitted). In certain
circumstances, the mobility or destruction of evidence can be considered an exigent
circumstance. State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983); State v. Komoto,
40 Wn. App. 200, 207-208, 697 P.2d 1025 (1985). Specifically, the need for naturally
dissipating evidence in the body, such as blood alcohol, can support a finding of exigent
circumstances. McNeely, 185 L. Ed. 2d at 709. However, the court must look at the
totality of the circumstances. Id. The State bears the burden of establishing the exigency.
State v. Tibbles, 169 Wn.2d 364, 369, 236 P.3d 885 (2010). 3
The trial court found that the exigent circumstances justifying the warrantless
blood draw in this case were the length of time to obtain a warrant and the potential delay
resulting from expected medical treatment. Neither factor establishes why a warrant was
not a practical answer in this case.
3
The State also bears the burden of establishing probable cause to believe evidence
of the crime will be found. Komoto, 40 Wn. App. at 206. The record overwhelmingly
established probable cause to believe that Mr. Storms was under the influence at the time
of the accident. His prose arguments to the contrary are meritless and will not be further
discussed in light of our ultimate conclusion.
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No. 32653-5-III
State v. Storms
Although the State presented testimony that it could have taken as much as four
hours to write, obtain, and execute the warrant on a Sunday afternoon, it failed to address
other, more practical approaches to obtaining a warrant. For instance, Washington
permits communication of search warrant authority "by any reliable means." CrR 2.3( c).
There is no indication that an officer could not have contacted a judge by telephone, fax
machine, or e-mail in an effort to promptly obtain judicial authorization for a search.
There also is no indication that 1 of the 23 officers could not have begun work on seeking
a warrant shortly after the defendant's arrest. If all were needed to perform emergency
services at the scene such as tending to victims, assisting aid personnel, or directing
traffic, evidence of that fact could have been presented at the suppression hearing. There
was no such evidence. In short, there needed to be some evidence explaining why other
alternatives would not have worked, in addition to explaining why the officers did what
they did.
Similarly, the fact that officers reasonably expected the defendant to undergo x-
rays is not a particularly compelling fact. X-rays typically do not take much time nor
require treating the defendant prior to the examination. If particularly involved
procedures were anticipated, evidence of that fact could have been presented. Indeed,
with the benefit of hindsight, evidence establishing what procedures the defendant did
undergo and how those would have delayed blood testing might have established this
factor. If, for instance, the defendant was expected to undergo a lengthy surgery, or had
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No. 32653-5-111
State v. Storms
actually done so, that evidence might well have justified reliance on pending medical
treatment as an exigency. However, in this record there is no indication the defendant
underwent any treatment, let alone significantly lengthy treatment.
In sum, the evidence does not support the trial court's conclusion that a
warrantless blood draw was the only practical method of proceeding on this occasion. 4
The State has not satisfied its burden that an exigent circumstance exists. It presented no
evidence that a telephonic warrant was unavailable, nor did it explain why one officer
could not seek a warrant while another officer transported Mr. Storms. Both the holding
and reasoning of McNeely weigh against finding an exigent circumstance on this record.
A warrantless blood draw might have been justified here, but this record simply does not
support that conclusion.
Accordingly, the trial court erred when it denied the motion to suppress the blood
draw. We also conclude that the error was not harmless with respect to the under the
influence prong of the vehicular homicide and vehicular assault convictions. While there
was ample evidence suggesting impairment from the testimony of responding officers,
the strongest and most objective evidence of impairment came from the blood test results.
4
Another factor on which evidence was lacking concerned the dissipation rate of
controlled substances. Here, the authorities reasonably suspected use of methamphetamine,
but presented no evidence whether that substance or other street drugs were subject to rapid
dissipation.
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No. 32653-5-111
State v. Storms
Accordingly, we cannot conclude that the blood test evidence did not affect the verdict on
the under the influence prong of the three offenses. However, that evidence did not affect
the verdict on the reckless manner and disregard for the safety of others prongs. The jury
was told to consider the offenses separately and the impairment evidence had no
particular relevance to the other two prongs. Moreover, the details of the collision
(speed, ignoring a stop sign) were not in dispute; both the State and defense experts
concurred on the facts of the incident. 5 The evidence overwhelmingly backed the
reckless manner and disregard of safety of others prongs of the three charges. We
conclude that error in the admission of the blood test results was harmless beyond a
reasonable doubt as to the other prongs of the offenses. The special interrogatory
answers were not tainted by the blood examination results.
The remaining question is the remedy. The State would be entitled to retry the
charges on the under the influence theory because ample evidence still exists to support a
jury verdict. However, the prosecutor at oral argument elected to have the case re-
sentenced rather than retried in the event that the blood test was suppressed. Since the
State is waiving its opportunity to retry the case, we remand for resentencing on the other
prongs of the three offenses.
5The defense closing argument noted that the experts agreed and was focused
nearly entirely on disputing whether the State had established the impairment prong of
the charges.
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No. 32653-5-III
State v. Storms
Aggravating Factors
The remaining issue for consideration is the defense claim that the evidence did
not support the jury's special verdict that the injuries suffered by Ms. Blumer were
substantially greater than necessary to establish substantial bodily injury. 6 The evidence
supports the jury's verdict.
Whether the evidence supports a jury's special verdict is reviewed for substantial
evidence. State v. DeLeon, 185 Wn. App. 171, 212, 341 P.3d 315 (2014). Evidence is
sufficient where the jury could find each element proved beyond a reasonable doubt. Id.
This court reviews the evidence in the light most favorable to the State. State v.
Hacheney, 160 Wn.2d 503,512, 158 P.3d 1152 (2007).
RCW 9.94A.535(3)(y) provides that it is an aggravating factor that a "victim's
injuries substantially exceeded the level of bodily harm necessary to satisfy the elements
of the offense." To establish vehicular assault, the State was required to prove
"substantial bodily harm to another." RCW 46.61.522. "Substantial bodily harm means
bodily injury which involves a temporary but substantial disfigurement, or which causes
a temporary but substantial loss or impairment of the function of any bodily part or organ,
or which causes a fracture of any bodily part." RCW 9A.04.110( 4 )(b) (internal quotation
6
The defense does not challenge the trial court's finding that the "free crimes"
aggravator was present on all four felony offenses. RCW 9.94A.535(2)(c).
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No. 32653-5-111
State v. Storms
marks omitted). The harm to the victim does not need to reach the next statutory
category of harm to satisfy the "substantially exceed" test. State v. Pappas, 176 Wn.2d
188,192,289 P.3d 634 (2012).
The evidence supports the jury's verdict. Ms. Blumer suffered a traumatic brain
injury that was still symptomatic a year after the crash. A doctor also testified that the
impaired cognitive function from these injuries usually last a year but can be permanent.
"Great bodily harm" is satisfied where the victim suffers an injury that causes
"permanent loss or impairment ... of any bodily part or organ." RCW 9A.04.110(4)(c).
Because of her long-term cognitive dysfunction, Ms. Blumer's injuries almost reach
"great bodily harm." This fact indicates they substantially exceed substantial bodily
harm. See Pappas, 176 Wn.2d at 192 ("While the jump between statutory categories of
harm necessarily meets the 'substantially exceed' test, injuries can 'substantially exceed'
one category of harm without reaching the severity of the next category.").
The evidence allowed the jury to find that Ms. Blumer suffered injuries that
significantly exceeded the level of bodily harm necessary to establish the offense. The
evidence thus was sufficient to support the jury's special verdict.
The convictions are affirmed, but the three jury interrogatories that concluded the
crimes were committed while under the influence are reversed. The aggravating factors
found by the jury and the court are affirmed. The case is remanded for resentencing.
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No. 32653-5-111
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A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
5)i:ilt;cu , ~
Siddoway, ~ J.
Pennell, J.
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