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STATE OF WASHINGTON, )
) No. 90419-7
Petitioner, )
)
v. )
)
DOMINIC XAVIER BAIRD, )
)
Respondent. ) EnBanc
)
STATE OF WASHINGTON, )
)
Petitioner, )
)
v. )
)
) DEC 2 ~ .2016
COLLETTE ADAMS,
)
Filed:
)
Respondent. )
)
MADSEN, C.J.-These consolidated cases require us to decide whether the State
can offer a driver's refusal to take a breath test under Washington's implied consent
statute, RCW 46.20.308, 1 as evidence of guilt at a criminal trial after the Supreme Court's
1
The implied consent statute has been amended since the defendants in this case were arrested in
2012 and 2013. LAWS OF 2013, 2d Spec. Sess., ch. 35, § 36; LAWS OF 2013, ch. 3, § 31; LAWS
OF 2012, ch. 80, § 12; LAWS OF 2015, 2d Spec. Sess., ch. 3, § 5. However, the parties cite to the
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No. 90419-7
decision in Missouri v. McNeely,_ U.S._, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013)
(plurality opinion).
Washington's implied consent statute facilitates law enforcement in obtaining
evidence of blood alcohol content (BAC) for prosecution of driving under the influence
(DUI) cases by authorizing an officer to request a breath sample from drivers arrested for
DUI. See City of Seattle v. St. John, 166 Wn.2d 941, 947, 215 P.3d 194 (2009). Under
the statute, a driver is given the choice to refuse or consent to a breath test. RCW
46.20.308(2). If the driver refuses to provide a breath sample, the driver's refusal may be
used as evidence of guilt at a subsequent criminal trial. State v. Long, 113 Wn.2d 266,
272-73, 778 P.2d 1027 (1989); RCW 46.20.308(2)(b). In the two cases here, an officer
asked each defendant to submit to a breath test. Dominic Baird agreed to the test, and
Collette Adams refused it. Baird's test results showed a BAC above the legal limit.
Pretrial, both defendants moved to suppress the evidence, arguing the breath test
was a request to consent to a warrantless search and they had a constitutional right to
refuse consent. Consequently, the State could not use their refusal as evidence of guilt.
Baird further argued that because the officer told him that his refusal could be used as
evidence, the officer coerced his consent through an unlawful threat, thereby invalidating
his consent. The State took the position that the defendants had no constitutional right to
Laws of2013, 2d Spec. Sess., ch. 35, § 36 version of the statute rather than the version in effect
at the time of arrest, apparently because they conclude the amendments had no substantive effect
on their arguments. We also discern no substantive difference. To avoid confusion and citing to
multiple versions of the implied consent statute, our citations to RCW 46.20.308 refer to the
version in effect from January 1, 2014 to September 25,2015, Laws of2013, 2d Spec. Sess.,
ch. 35, § 36.
2
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No. 90419-7
refuse because the exigent circumstances exception to the warrant requirement applies in
all DUI cases. Due to the body's natural elimination of alcohol from the bloodstream as
time passes, the delay necessary to obtain a warrant is impractical since the delay will
cause the destruction ofDUI evidence.
Relying on McNeely and State v. Gauthier, 174 Wn. App. 257, 298 P.3d 126
(20 13 ), the trial court in each case held the defendants had a constitutional right to refuse
consent to the warrantless breath test. In McNeely, the United States Supreme Court held
that alcohol dissipation in routine DUI cases does not create per se exigent circumstances
and that the State failed to prove that any warrant exception applied to justify a search of
•
the defendant's blood for evidence of intoxication. In Gauthier, the Court of Appeals
held that a defendant has a constitutional right to refuse consent to a warrantless search
that did not fall under an exception to the warrant requirement and that refusal may not be
admitted as evidence of guilt at a criminal trial. Reading these cases together, the Baird
trial court reasoned that exigent circumstances did not justify a warrantless breath test
and that Baird's consent was coerced, and it suppressed the test results. Similarly, the
Adams trial court reasoned that evidence of Adams's refusal must be suppressed.
The State petitioned King County Superior Court for an interlocutory writ of
review; review was granted and the cases consolidated. In the interests of justice, the
superior court requested direct review from this court, finding that the district court
rulings substantially altered the status quo regarding thousands of breath test and breath
test refusal DUI cases.
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No. 90419-7
We accepted review and now reverse. The district courts correctly rejected the
State's argument that alcohol dissipation constitutes exigency per se-exigency must be
determined under the totality of circumstances, case by case. We hold that the implied
consent statute does not authorize a warrantless search, and a driver has no constitutional
right to refuse a breath test because such a search falls under the search incident to arrest
exception to the warrant requirement. Further, although the implied consent statute gives
a driver a statutory right to refuse the test, by exercising the privilege to drive, a driver
consents to admitting that refusal to take the breath test into evidence. Accordingly, we
hold that a driver's refusal is admissible as evidence of guilt under Washington's implied
consent law.
FACTS
State v. Baird
On November 12, 2012, around 9:40p.m., Washington State Patrol (WSP)
Trooper Phil Riney was on patrol on State Route 167 in south King County when he saw
a vehicle driven by Baird weaving between lanes. He watched as Baird's vehicle drifted
from one lane into another and then jerked back. Within one mile of travel, Baird
repeated this behavior several times. He did, however, use his turn signal with each lane
change. In addition to weaving, his speed fluctuated between 45 and 70 miles per hour
on the roadway, which had a speed limit of60 miles per hour. After observing Baird's
behavior, Trooper Riney initiated a traffic stop.
4
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No. 90419-7
Baird rolled his window down, and Trooper Riney smelled "intoxicants" and
green (unsmoked) marijuana. Clerk's Papers (CP) at 142. Baird had watery and
bloodshot eyes and denied that he had marijuana in the car and that he had been drinking.
Trooper Riney asked him to step out of the vehicle, and Baird admitted that he had
consumed a drink over an hour before. Baird performed voluntary field sobriety tests,
including the walk and turn test and the horizontal gaze nystagmus test. The results
suggested that Baird was impaired, so Trooper Riney arrested him.
WSP Trooper Christopher Poague came to the scene and transported Baird to the
city of Kent Police Department for DUI processing. Trooper Poague read the statutory
implied consent warnings (ICWs), RCW 46.20.308(2), and requested that Baird consent
to a breath test for the purpose of determining his BAC. The ICWs include the warning
that if the person refuses to consent to a breath test, that person's license will be revoked
for at least one year and that the refusal may be used as evidence at a subsequent criminal
trial. RCW 46.20.308(2)(a)-(b).
Baird agreed to take the breath test. He provided two breath samples, measuring
0.138 and 0.130, well above the legal breath alcohol concentration limit of 0.08. RCW
46.20.308(5).
The State charged Baird with one count ofDUI in King County District Court.
Baird moved to suppress the breath test results. He argued the breath test was a search,
and under the Fourth Amendment to the United States Constitution and article I, section 7
of Washington's constitution, he had the right to refuse consent to the warrantless search
5
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No. 90419-7
because no warrant exceptions applied. And if he had the constitutional right to refuse
consent, the State could not use his refusal as evidence of guilt at a criminal trial under
Gauthier. Although he consented to the test, the warning in RCW 46.20.308(2)(b )-
stating refusal evidence may be used against the driver-coerced his consent because it
stated a threat that the State had no authority to carry out.
The State argued that Baird had no constitutional right to refuse because when an
officer requests a breath test under the implied consent statute, exigent circumstances
always exist due to the natural dissipation of alcohol from the body as time passes. Any
time delay would lead to the further destruction ofDUI evidence, making the delay
necessary to obtain a warrant impractical.
The trial court granted Baird's motion to suppress. Relying on McNeely, the court
held that exigency is determined from the totality of circumstances. The court therefore
rejected the State's per se argument and also concluded that no other warrant exceptions
applied. Although the court recognized actual consent as another exception to the
warrant requirement, it accepted a concession made by the State during oral argument
that the ICWs coerced Baird's consent if Baird had a constitutional right to refuse the
test.
State v. Adams
On April 6, 2013, around 2:00a.m., WSP Trooper David Kiel was on patrol in
downtown Bellevue. He saw Adams driving with her right headlight out and activated
his emergency lights. Adams did not immediately pull over on the street, so Trooper Kiel
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No. 90419-7
used his car's PA (public address) system and told Adams to stop, which she did about 75
feet into a parking garage.
Trooper Kiel noticed the smell of alcohol coming from Adams's car, and he asked
her to exit the vehicle. As Adams closed the door, she almost lost her balance. Trooper
Kiel asked Adams if she had anything to drink, and she said that she had consumed one
drink about an hour earlier. He smelled alcohol on her breath and noted that she had
slurred speech. He asked if she would perform some field sobriety tests. She declined
and said that she would take a blood test. After Trooper Kiel said he would let her go if
she passed the tests, she agreed to take a horizontal gaze nystagmus test and a walk and
turn test. The results of the tests suggested Adams was intoxicated.
Trooper Kiel arrested Adams and transported her to the City of Clyde Hill Police
Department. Without a warrant, he read her the statutory ICWs and requested that she
consent to a breath test. Adams refused.
The State charged Adams with one count ofDUI and the sentencing enhancement
for refusing the breath test. Adams moved to suppress evidence of her refusal, arguing
that she had a constitutional right to refuse and, consequently, her refusal could not be
used as evidence at a criminal trial. The State argued that she had no constitutional right
to refuse the test because the exigent circumstances exception always applies when an
officer requests a breath test under the implied consent statute due to the natural
dissipation of alcohol. The district court rejected the State's argument and granted the
motion to suppress. The court concluded that no warrant exceptions applied; Adams had
7
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No. 90419-7
a constitutional right to refuse consent; and, accordingly, the State could not use her
refusal as substantive evidence of guilt under Gauthier.
Statutory Writ of Review
The State petitioned King County Superior Court for an interlocutory writ of
review under RCW 7.16.040 and City of Seattle v. Holifield, 170 Wn.2d 230, 244-45, 240
P.3d 1162 (2010). The superior court consolidated Baird and Adams and granted the
State's petition. The court noted that McNeely, the case relied on by the defendants,
seemed to approve of implied consent breath testing and the penalties for refusing the
test. It concluded that "McNeely arguably does not alter application of the exigent
circumstances exception to a breath test administered pursuant to an implied consent
law." CP at 82. Furthermore, it recognized that the district courts' holding that a person
has a constitutional right to refuse consent to a breath test conflicted with numerous
holdings by Washington appellate courts.
The superior court requested that we accept direct review, which we granted.
ANALYSIS
We review a trial court's legal conclusions on a motion to suppress de novo. State
v. Roden, 179 Wn.2d 893,898,321 P.3d 1183 (2014).
A breath test is a search under the Fourth Amendment and under article I, section
7. State v. Garda-Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (20 10). We presume that
a warrantless search violates these constitutional provisions, and the State bears the
burden to prove that one of the narrowly drawn exceptions to the warrant requirement
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No. 90419-7
applies. State v. Kirwin, 165 Wn.2d 818, 824, 203 P.3d 1044 (2009). We have
recognized that exigent circumstances may excuse the need for a warrant when the delay
necessary to obtain a warrant is not practical because the delay would permit the
destruction of evidence. State v. Tibbles, 169 Wn.2d 364,370,236 P.3d 885 (2010).
The State argues that when an officer requests a breath test under the implied
consent statute, exigent circumstances exist per se because of the ongoing destruction of
DUI evidence. After drinking stops, the body naturally metabolizes alcohol from the
bloodstream, thereby making the delay necessary to obtain a warrant impracticable.
We recognize that our precedent supports the State's argument. For example, in
State v. Judge, we interpreted a 197 5 amendment to the implied consent statute to mean
that suspects in alcohol related fatalities had no right to refuse either a breath test or a
blood test. 100 Wn.2d 706, 710-11, 675 P.2d 219 (1984). Therefore, according to the
statute, officers could obtain a blood alcohol test without the suspect's consent. !d. The
defendant in that case challenged a blood draw~a search and seizure~taken without
asking her consent as unreasonable under the Fourth Amendment and article I, section 7.
!d. at 709. We held that the search was reasonable and that the taking of the blood
sample did not require a warrant. !d. at 712. For support, we quoted the Supreme
Court's decision in Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L.
Ed. 2d 908 (1966), which held the emergency exception in a DUI case applied to a
nonconsensual blood draw because the ongoing dissipation of alcohol~evidence of
DUI~made the delay necessary to obtain a warrant impracticable under the
9
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No. 90419-7
circumstances. Judge, 100 Wn.2d at 712; see also Garda-Salgado, 170 Wn.2d at 185
(concluding warrant not required in DUI cases because exigency exists due to evidence
of alcohol constantly being eliminated from the body).
The State contends that McNeely does not control in implied consent statute cases
involving breath tests. In McNeely, the Supreme Court considered and rejected the
State's per se exigency argument as applied to nonconsensual blood draws. 133 S. Ct. at
1556. 2 The Court framed the question presented as "whether the natural metabolization
of alcohol in the bloodstream presents a per se exigency that justifies an exception to the
Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-
driving cases." I d. The Court made clear that under the Fourth Amendment, courts must
evaluate the totality of the circumstances "[t]o determine whether a law enforcement
officer faced an emergency that justified acting without a warrant." Id. at 1559.
The Court also reexamined Schmerber, which we relied on in Judge, and
concluded that Schmerber did not hold that alcohol dissipation alone presents an
exigency that excuses the warrant requirement. Id. Rather, it applied a totality of the
circumstances analysis. !d. In addition to the natural dissipation of alcohol, the Court in
Schmerber noted that time was lost taking the defendant to the hospital for treatment and
investigating the accident scene. 3 84 U.S. at 770-71. Evaluating all of these
circumstances together, the Court concluded the emergency exception applied in that
particular case. McNeely, 133 S. Ct. at 1560.
2
The Supreme Court recently reaffirmed this holding in Birchfield v. North Dakota,_ U.S._,
136 S. Ct 2160, 2174, 195 L. Ed. 2d 560 (2016).
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No. 90419-7
While the natural dissipation of alcohol may support a finding of exigency in a
given case, ultimately, courts must determine exigency under the totality of the
circumstances, case by case. Id. at 1559. When officers can obtain a warrant in DUI
investigations before taking a blood sample "without significantly undermining the
efficacy of the search, the Fourth Amendment mandates that they do so." Id. at 1561.
We believe that this same logic applies to breath tests in regard to the exigency exception
to the warrant requirement.
The State attempts to distinguish McNeely, arguing it requires a totality of the
circumstances analysis to determine exigency only for highly invasive blood draws;
because breath tests are minimally invasive, the State contends, the reasoning in McNeely
does not apply here. Essentially, the State argues for an inverse rule where courts would
conclude that the Jess invasive the search, the more exigent the circumstances for
conducting the search. We decline to adopt this approach. Whether the emergency
exception applies in a given case does not depend on the invasiveness of the search. 3
Rather, the exception requires a compelling need for officer action and circumstances that
make the time necessary to secure a warrant impractical. Id. at 1559; see also Birchfield
3
The State conflates two requirements for conducting a search that intrudes into the body. When
a search intrudes into the body, the search must meet tbree showings, in addition to meeting the
warrant requirement or meeting an exception. Garcia-Sa/gada, 170 Wn.2d at 185-86. First,
there must be a '"clear indication"' that the evidence will be found; second, the search method
must be reasonable; and third, the search must be performed in a reasonable manner. ld. at 185
(quoting Schmerber, 384 U.S. at 770). The State suggests that a warrantless breath test in a DUI
case is constitutional if it meets these tbree showings. Br. of Pet'r at 15 (citing State v. Curran,
116 Wn.2d 174, 184-85, 804 P.2d 558 (1991)). We disagree. The State must make these
showings and satisfy the warrant requirement or establish that an exception applied. Garcia-
Sa/gada, 170 Wn.2d at 185-86.
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No. 90419-7
v. North Dakota, -
U.S. -
, 136 S. Ct. 2160, 2174, 195 L. Ed. 2d 560 (2016). Here, the
State argues the same compelling need as was presented in McNeely: dissipation of
alcohol in the blood makes the delay in obtaining a warrant per se impractical in DUI
cases. The Supreme Court rejected this argument. Consequently, we also reject it.
Exigency is determined under the totality of the circumstances, case by case. In the cases
before us, the State did not present evidence of exigency to justify a warrantless search.
Therefore, we agree with the district courts that the State did not establish this exception
applied in either case.
Our conclusion that exigent circumstances did not justify the searches here does
not, however, resolve whether the test result was admissible in Baird or whether evidence
of refusal was admissible in Adams. The defendants argue that if the State cannot
establish a valid warrant exception for the warrantless breath test, then they had a
constitutional right to refuse consent and that under the Fourth Amendment and article I,
section 7, the State cannot use their refusal as evidence of guilt at a criminal trial.
Similarly, they recognize that if the State can establish a valid exception to the warrant
requirement, they have no constitutional right to refuse the test. Br. ofResp't Adams at
24. The Supreme Court of the United States has recently decided this question for us:
breath tests conducted subsequent to an arrest for DUI fall under the search incident to
arrest exception to the warrant requirement. Birchfield, 136 S. Ct. at 2185. Because the
search falls under an exception, as the defendants themselves aclmowledge, there is no
constitutional right to refuse the breath test.
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No. 90419-7
In Birchfield, the Supreme Court considered whether criminal penalties for
refusing to take a breath test under Minnesota's and North Dakota's implied consent laws
were constitutional. The Court held that because the "impact of breath tests on privacy is
slight, and the need for BAC testing is great," the Fourth Amendment permits breath tests
as a search incident to arrest for drunk driving. I d. at 2184. Because a breath test is a
permissible search incident to arrest, "the Fourth Amendment did not require officers to
obtain a warrant prior to demanding the test, and [petitioner] had no right to refuse it."
Jd. at 2186. A driver thus has no constitutional right to refuse a breath test because the
breath tests fall under the search incident to arrest exception to the warrant requirement.
If the driver has no constitutional right to refuse, admitting evidence of that refusal is not
a comment on the driver's exercise of a constitutional right because no constitutional
right exists. As discussed below, the right to refuse exists solely as a matter of legislative
grace from the implied consent statute.
That breath tests fall under the search incident to arrest exception to the warrant
requirement is what makes this case distinct from Gauthier, the primary case relied on by
the defendants. 174 Wn. App. at 261-62, 264-65 (holding prosecutor violated
defendant's constitutional right to refuse by arguing at trial that defendant's refusal to
submit to a warrantless DNA (deoxyribonucleic acid) swab showed his guilt regarding
the charged rape). In that case, the court analyzed the refusal to submit to a warrantless
search that did not fall under an exception to the warrant requirement. Here, the search
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No. 90419-7
falls under such an exception; therefore, the principle from Gauthier, while still generally
meritorious, does not apply to this case.
As this court has recognized before, and as the Birchfield decision further
supports, we do not address the warning requirement on a constitutional basis, but as a
right granted through the statutory process. Thus, while an arrestee has no constitutional
right to refuse the breath test, he or she does have a statutory right under the implied
consent law to refuse the test. As we observed in State v. Whitman County District
Court, "The courts of this state have not addressed the warning requirements of the
implied consent law on a constitutional basis, but rather as rights granted through the
statutory process." 105 Wn.2d 278,281, 714 P.2d 1183 (1986); see also State v.
Morales, 173 Wn.2d 560, 567, 269 P.3d 263 (2012); Gonzales v. Dep 't ofLicensing, 112
Wn.2d 890, 896, 774 P.2d 1187 (1989). As this court has stated,
"It is not our purpose to declare these statutory provisions
unconstitutional. But in order for us to avoid holding them invalid, it is
necessary to reconcile them with each other and to give effect to all. If the
person under arrest is to be held to have refused to submit to [a breath test],
he must have refused knowingly and intelligently, after being advised of his
right to have a physician, etc., of his own choosing administer an additional
test or tests."
Connolly v. Dep 't ofMotor Vehicles, 79 Wn.2d 500, 504, 487 P.2d 1050 (1971) (quoting
Couch v. Rice, 23 Ohio App. 2d 160, 161, 261 N.E.2d 187 (1970)). This court has
further held that the warning that "'refusal to take the test may be used in a criminal
trial"' did not deprive drivers who refused the test of the opportunity to make a knowing
and intelligent decision whether to take the test, since the warning was sufficient to alert
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No. 90419-7
drivers that their refusal could be used at any phase of a criminal trial. State v. Bostrom,
127 Wn.2d 580,586,902 P.2d 157 (1995) (quoting formerRCW 46.20.308(2) (1995)).
We review the implied consent warning not on a constitutional basis, but rather as
a right granted as a matter of grace through the statutory process. Morales, 173 Wn.2d at
567 (citing Gonzales, 112 Wn.2d at 896; Whitman County, 105 Wn.2d at 281). We have
never held that refusal to consent to a BAC test cannot be introduced as evidence of guilt,
especially when the defendant agreed to this result in exchange for the privilege to drive.
See, e.g., Long, 113 Wn.2d at 272 ("Since the right to refuse to submit to a breath test is a
matter of legislative grace, the Legislature may condition that right by providing that a
refusal may be used as evidence in a criminal proceeding."); see also State v. Zwicker,
105 Wn.2d 228, 242, 713 P.2d 1101 (1986) ("Attaching penalties to the exercise of the
statutory right of refusal is not inherently coercive where the Legislature could withdraw
this privilege altogether.").
Washington's implied consent statute does not authorize a search; instead, it
authorizes a choice between two options, to consent or refuse, with penalties attached for
refusal. See Long, 113 Wn.2d at 272; Zwicker, 105 Wn.2d at 242; accord State v.
Padley, 2014 WI App 65, 354 Wis. 2d 545, 564-76, 849 N.W.2d 867; see also McNeely,
133 S. Ct. at 1566 (plurality opinion) (noting that "all 50 States have adopted implied
consent laws that require motorists, as a condition of operating a motor vehicle within the
State, to consent to BAC testing if they are arrested" or incur penalties for refusal);
Birchfield, 136 S. Ct. at 2185 ("Our prior opinions have referred approvingly to the
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No. 90419-7
general concept of implied-consent laws that impose civil penalties and evidentiary
consequences on motorists who refuse to comply."). "The choice to submit to or refuse
the test is not a constitutional right, but rather a matter of legislative grace." Bostrom,
127 Wn.2d at 590) (citing Zwicker, 105 Wn.2d at 242).
Washington's implied consent statute, RCW 46.20.308, says that drivers consent
to a breath test by driving in Washington State:
(I) Any person who operates a motor vehicle within this state is deemed to
have given consent ... to a test or tests of his or her breath for the purpose
of determining the alcohol concentration ... if arrested for any offense
where, at the time of the arrest, the arresting officer has reasonable grounds
to believe the person had been driving or was in actual physical control of a
motor vehicle while under the influence of intoxicating liquor or any drug
or was in violation ofRCW 46.61.503.
(Emphasis added.) But the statute does not allow an officer to conduct a breath test
unless the driver is arrested and actually consents to the test after being read statutory
warnings.
(4) If, following his or her arrest and receipt of warnings under
subsection (2) of this section, the person arrested refuses upon the request
of a law enforcement officer to submit to a test or tests of his or her breath,
no test shall be given except as authorized by a search warrant.
RCW 46.20.308 (emphasis added).
Functionally, the "implied consent" in the statute does not mean that police may
require drivers to consent to the breath test simply because they drove. Rather, it means
that in situations that the legislature has specified, 4 if a driver chooses not to consent, the
driver agrees that he or she will incur the consequences of that decision:
4
The provisions of the implied consent statute apply when a driver is
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No. 90419-7
(2) ... The officer shall warn the driver, in substantially the
following language, that:
(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.
I d.
While the defendants have a statutory right to refuse consent, permitting the State
to use their refusal as evidence of guilt, under the implied consent statute, does not
violate that right. Indeed, the Court of Appeals in Gauthier noted that courts exclude
refusal evidence, in part, because its use would be unfair to suggest that refusal is an
indication of guilt. 174 Wn. App. at 263-66. The court observed that although a person
may refuse a warrantless search because he or she has incriminating evidence to hide, a
person may also refuse because of distrust of law enforcement or for many other reasons.
ld. at 265. Because refusal is ambiguous, courts have found it unfair to allow a jury to
infer guilt from refusal, particularly when such refusal involves the exercise of a
constitutional right. See id. at 264-65.
In other words, courts have created a prophylactic rule, shielding defendants from
the adverse use of refusal evidence, grounded in considerations of fairness. See id.; see
also Long, 113 Wn.2d at 272-73; ER 403. But for a breath test to determine alcohol
consumption under Washington's implied consent statute, for which a defendant has no
arrested for any offense where, at the time of the arrest, the arresting officer has
reasonable grounds to believe the person had been driving or was in actual
physical control of a motor vehicle while under the influence of intoxicating
liquor or any drug or was in violation ofRCW 46.61.503.
RCW 46.20.308(1).
17
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No. 90419-7
constitutional right to refuse like in Gauthier, we do not have the same concerns
regarding fairness.
In exchange for the privilege of driving on Washington's roadways, drivers agree
and have notice that their refusal to consent to a statutorily requested breath test may be
used as evidence of guilt at a criminal trial. See Long, 113 Wn.2d at 272-73; RCW
46.20.308. They impliedly consent to this result by driving on the roadway and by
driving under circumstances that amount to probable cause to believe they are
intoxicated, and ultimately, they actually agree to this result when they refuse the breath
test. See RCW 46.20.308(1)-(2)(b). Under our Rules ofEvidence, parties may waive the
opportunity to object to the admissibility of evidence. See ER 103. In essence, drivers
waive the right to shield their refusal from use as evidence when they take advantage of
the privilege to drive in exchange for their waiver. 5 More importantly, the statute exists
to protect the public from drunk drivers and reasonably relates to the public safety of the
very roadways that the defendant was privileged to use. See State v. Moore, 79 Wn.2d
51,57-58,483 P.2d 630 (1971) (upholding implied consent statute as a reasonable
exercise of the State's police power, "having as its purpose the reduction of traffic
carnage occasioned by the inebriated driver"). Obtaining a breath test-to verify
intoxication and thereby help ensure that an intoxicated driver does not remain on the
roadway-relates to the safety of all motorists. See id. In this context, allowing a
5
The Ninth Circuit has held that the Fourth Amendment gives a suspect the right to refuse
consent to a warrantless search and that, generally, a person's refusal cannot be used as evidence
of guilt. United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978). However, the Ninth
Circuit also recognized that a defendant can waive his or her objection to the use of refusal
evidence. Id. at 1352.
18
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No. 90419-7
defendant's refusal to be admissible as evidence of guilt furthers the government's
legitimate public safety goals. See id.
The United States Supreme Court also implicitly approved of this result under the
Fourth Amendment, suggesting that implied consent statutes, with their attendant
6
penalties for refusal, remain viable. McNeely, 133 S. Ct. at 1566 (plurality opinion).
[A]11 50 States have adopted implied consent laws that require motorists, as
a condition of operating a motor vehicle within the State, to consent to
BAC testing if they are arrested .... Such laws impose significant
consequences when a motorist withdraws consent; typically the motorist's
driver's license is immediately suspended or revoked, and most States
allow the motorist's refusal to take a BAC test to be used as evidence
against him in a subsequent criminal prosecution.
!d. 7 A majority of the Court recently reiterated this approval of implied consent statutes
in Birchfield, 136 S. Ct. at 2185. The Birclifield Court further stated, "Our prior opinions
have referred approvingly to the general concept of implied-consent laws that impose
civil penalties and evidentiary consequences on motorists who refuse to comply.
Petitioners do not question the constitutionality of those laws, and nothing we say here
should be read to cast doubt upon them." !d. (citations omitted).
6
Justice Kennedy did not join Part III, where the lead opinion approved of implied consent
statutes. McNeely, 133 S. Ct. at 1568 (Kennedy, J., concurring in part). He did, however,
explain his criticism of this section. !d. at 1568-69. In that criticism, he did not comment on the
lead opinion's discussion of implied consent statutes. See id
7
"We recognize, of course, that the choice to submit or refuse to take a blood-alcohol test will
not be an easy or pleasant one for a suspect to make. But the criminal process often requires
suspects and defendants to make difficult choices." South Dakota v. Neville, 459 U.S. 553, 564,
103 S. Ct. 916, 74 L. Ed. 2d 748 (1983).
19
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No. 90419-7
Because we determine that, even after McNeely and particularly after Birchfield, a
driver's refusal is admissible as evidence of guilt under the implied consent statute, we
reverse the district courts' suppression of the evidence in both cases.
On remand in Adams, Adams's refusal is admissible in her criminal trial.
In Baird's case, he argues that his consent was coerced and therefore invalid
because the statutory warning stating his refusal could be used against him was a threat
8
the State had no authority to carry out. Because we conclude the State can use a driver's
refusal in a criminal trial, we reject this argument. On remand, Baird's breath test results
are admissible.
CONCLUSION
We reverse the district courts' suppression rulings in both cases. Under the
implied consent statute, a driver's refusal to consent to a breath test is admissible as
evidence of guilt in a criminal trial. Such refusal is not a comment on the exercise of a
person's constitutional rights because once an exception to the warrant requirement is
found to apply, no constitutional right to refuse exists. Any right to refuse exists only as
8
Baird also argues that the implied consent statute violates the doctrine of unconstitutional
conditions, see, e.g., United States v. Scott, 450 F.3d 863 (9th Cir. 2006), premised on the
assmnption that the statute acts as valid consent for a search because it requires a broad waiver of
Fourth Amendment protection in exchange for the '"privilege"' to drive. Br. ofResp't Baird at
27-28. We reject this argument because we have already rejected its premise: the "implied
consent" in the statute does not act as valid consent for a search. See RCW 46.20.308(4).
Rather, absent a warrant or an exception, an officer must obtain actual consent for a breath test.
Fmther, because such an exception to the warrant requirement exists in this case, the breath test
falls outside of Fourth Amendment protection. Thus the implied consent statute cannot be a
waiver of that nonexistent Fourth Amendment protection.
20
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No. 90419-7
a statutory right by virtue of the implied consent statute. We remand for further
proceedings consistent with this opinion.
21
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No. 90419-7
WE CONCUR:
22
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State v. Baird/State v. Adams, No. 90419-7 (Gonzalez, J., concurring)
GONZALEZ, J. (concurring)-! concur with the lead opinion that a driver's
refusal to take a breath test is admissible under Washington's implied consent law
as evidence of guilt, but I write separately to emphasize that a breath test~ after
reasonable suspicion of driving under the influence (DUI) has been established, is
a limited and reasonable search; therefore, admitting evidence of a person's refusal
has no constitutional implications. WASH. CoNST. art. I, sec. 7; U.S. CONST.
amend. IV. As the United States Supreme Court recently reaffirmed, "A breath
test does not 'implicat[e] significant privacy concerns."' Birchfield v. North
Dakota,_ U.S._, 136 S. Ct. 2160,2178, 195 L. Ed. 2d 560 (2016) (alteration in
original) (quoting Skinner v. Ry. Labor Execs. Ass 'n, 489 U.S. 602, 626, 109 S. Ct.
1402, 103 L. Ed. 2d 639 (1989)).
A Fourth Amendment search does not occur unless "the individual
manifested a subjective expectation of privacy in the object of the challenged
search" and "society [is] willing to recognize that expectation as reasonable."
California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986)
(citing Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967);
Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979)).
1
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State v. Baird/State v. Adams, No. 90419-7 (Gonzalez, J., concurring)
A breath test is much less intrusive than other blood alcohol tests and
produces only a limited amount of information. Cf Maryland v. King, _U.S. _,
133 S. Ct. 1958, 1969, 186 L. Ed. 2d 1 (2013). A blood draw, for instance, entails
a "physical intrusion beneath [the] skin and into [the] veins to obtain a sample of
... blood." Missouri v. McNeely, __ U.S._, 133 S. Ct. 1552, 1558, 185 L. Ed.
2d 696 (20 13). Beyond this puncturing of the skin, a blood test can produce a
much wider array of information than a breath test, such as a person's DNA
(deoxyribonucleic acid) or the presence of certain diseases. In contrast, a breath
test simply captures one's breath and produces a scope of information that is
limited solely to a calculation of the alcohol content of the breather's blood.
The Fourth Amendment and article I, section 7 share a reasonableness
requirement, but article I, section 7 has additional protections for private affairs. 1
See State v. Valdez, 167 Wn.2d 761,771-72,224 P.3d 751 (2009). Warrantless
searches are umeasonable per se without a valid exception. State v. White, 135
Wn.2d 761, 769 & n.8, 958 P.2d 982 (1998) (citing State v. Hendrickson, 129
Wn.2d 61, 71, 917 P.2d 563 (1996)). A search incident to arrest is a valid
1 Notably,random sobriety checkpoints, while constitutional under the Fourth Amendment, are
impermissible under the Washington Constitution because they lack individualized suspicion.
Compare City ofSeattle v. Mesiani, 110 Wn.2d 454, 755 P.2d 775 (1988), with Mich. Dep't of
State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990). In this case,
however, reasonable suspicion of DUI requires an individualized determination.
2
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State v. Baird/State v. Adams, No. 90419-7 (Gonzalez, J., concurring)
exception to the warrant requirement. 2 Unlike the case-by-case approach
necessary to satisfy the exigent circumstances exception, the search incident to
arrest exception is categorical. Birchfield, 136 S. Ct. at 2179; see also State v.
Byrd, 178 Wn.2d 611, 623, 310 P.3d 793 (2013) ("Searches of the arrestee's
person incident to arrest extend only to articles 'in such immediate physical
relation to the one arrested as to be in a fair sense a projection of his person."'
(quoting United States v. Rabinowitz, 339 U.S. 56, 78, 70S. Ct. 430, 94 L. Ed. 653
(1950) (Frankfurter, J., dissenting))). Despite a driver's subjective expectation of
privacy in his or her breath, it cannot be said that society is willing to recognize the
reasonableness of that expectation incident to arrest for DUI. Cf State v. Athan,
160 Wn.2d 354,372, 158 P.3d 27 (2007) (no privacy interest in saliva used to seal
an envelope for mailing).
Nonetheless "article I, section 7 prohibits any disturbance of an individual's
private affairs 'without authority oflaw."' Valdez, 167 Wn.2d at 772 (citing York
v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 305-06, 178 P.3d 995 (2008)).
"Part of this inquiry focuses on what kind of protection has been historically
2 This exception applies here since Dominic Baird and Collette Adams both refused a breath test
after an arrest. Surmounting the privacy bar would prove more difficult if the only evidence of
refusal came before arrest, even with reasonable suspicion of DUI. See State v. Mecham, 186
Wn.2d 128, 154,380 P.3d 414 (2016) (Fairhurst, J., concurring/dissenting) (when "a suspect is
not yet under arrest" a field sobriety test can exceed the "constraints imposed by Terry" without
a "warrant or warrant exception" (citing Terry v. Ohio, 392 U.S. I, 88 S. Ct. 1868, 20 L. Ed. 2d
889 (1968))).
3
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State v. Baird/State v. Adams, No. 90419-7 (Gonzalez, J., concurr-ing)
afforded to the interest asserted, and part of it focuses on the nature and extent of
the information that may be obtained as a result of government conduct." State v.
Reeder, 184 Wn.2d 805, 814, 365 P.3d 1243 (2015). Between the long-standing
application ofthe implied consent statute, used to keep streets safe, and the limited
information obtained, it cannot be said that an individual's private affairs are
disturbed in this case. 3 This conclusion is supported by the Court's Birchfield
decision, which compared a breath test to "[t]he use of a straw to drink beverages"
and recognized that "[n]o sample of anything is left in the possession of the
police." 136 S. Ct. at 2177.
The search is reasonable under the Fourth Amendment because (1) society is
not willing to recognize an expectation of privacy in a reasonably suspicious
driver's breath and (2) a breath test is a minor imposition that is limited solely to
collecting information to calculate the alcohol content ofthe breather's blood. The
limited use of a breath test after arrest does not contravene the safeguards that
protect the privacy rights of drivers under the Washington Constitution. With this
understanding, I join the lead opinion in saying that a driver's refusal to take a
breath test is admissible as evidence of guilt.
3
One has the right to refuse a breath test and to be made aware of the consequences for refusing.
RCW 46.20.308. See generally In re Welfare of Colyer, 99 Wn.2d 114, 121,660 P.2d 738
(1983) (noting that the "right to be free from nonconsensual invasions of one's bodily integrity is
the basis for the doctrine of informed consent").
4
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State v. Baird/State v. Adams, No. 90419-7 (Gonzalez, J. concurring)
5
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State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
No. 90419-7
GORDON McCLOUD, J. (dissenting)-! agree with the lead opinion that a
law enforcement breath test constitutes a search. Lead opinion at 8. Both our court
and the United States Supreme Court have clearly held that obtaining such biological
samples for testing constitutes a search. Skinner v. Ry. Labor Execs. ' Ass 'n, 489
U.S. 602, 618, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (holding urine test
constitutes a search); id. at 616-17 (stating that breath test "generally requires the
production of alveolar or 'deep lung' breath," "implicates similar concerns about
bodily integrity," and "should also be deemed a search"); see also State v. Garcia-
Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (2010). The Supreme Court has even
held that moving inanimate stereo equipment (a Bang & Olufsen turntable) '"a few
inches"' to locate a serial number constitutes a "search," despite the fact that the
officer was lawfully present in the apartment in which the stereo was located.
Arizona v. Hicks, 480 U.S. 321, 324-35, 107 S. Ct. 1149,94 L. Ed. 2d 347 (1987);
see also Grady v. North Carolina,_ U.S._, 135 S. Ct. 1368, 1370-71, 191 L. Ed.
1
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State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
2d 459 (2015) (per curiam) (when a State attaches a satellite-based monitoring
device to a person's body without consent to track his or her movements, the State
is conducting a "search" within the meaning of the Fourth Amendment to the federal
constitution). It necessarily follows that forcing a person to move his or her lungs
to obtain and capture alveolar, or "deep lung," breath constitutes a search, also.'
I also agree with the lead opinion and the concurrence that such a search must
be authorized by a warrant, unless a specific exception to the warrant requirement
applies. Lead opinion at 8-9; concurrence at 3-4; see Missouri v. McNeely, _U.S.
_, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013); Schmerber v. California, 384
U.S. 757, 770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).
Further, I agree with the lead opinion that following the Supreme Court's
decision in McNeely, there is no per se exigency exception to the warrant
requirement due to dissipation of alcohol in the body, regardless of whether the
warrant requirement is triggered by a blood test search or a breath test search. Lead
opinion at 11-12; see McNeely, 133 S. Ct. at 1559, 1568 (metabolization of alcohol
1
In the trial court, the State agreed. Adams Verbatim Report of Proceedings (VRP)
(Mar. 27, 2014) at 158 ("[t]he State concedes of course that the breath test is a search");
BairdVRP (Apr. 10, 2014) at 60, 63-64 (same concession several times).
2
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State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
(in that case, in the blood) "does not constitute an exigency in every case" sufficient
to excuse warrant requirement).
The lead opinion, however, concludes that there is another, separate exception
to the warrant requirement that applies here. Citing to the United States Supreme
Court's recent decision in Birchfield v. North Dakota,_ U.S._, 136 S. Ct. 2160,
2186, 195 L. Ed. 2d 560 (20 16), the lead opinion holds that the search incident to
arrest exception to the warrant requirement allows police to conduct warrantless
breath tests incident to all arrests for driving under the influence (DUI), regardless
of the need for such a warrantless test in the particular case. Lead opinion at 12.
And the lead opinion implies that Birchfield's holding on this point is binding on our
court: "[t]he Supreme Court of the United States has recently decided this question
for us." Jd.
The lead opinion is certainly correct that the Supreme Court is the final arbiter
of whether a breath test fits within the search incident to arrest exception to the
Fourth Amendment's warrant clause. But this court, and this court alone, is the final
arbiter of whether a breath test fits within the search incident to arrest exception to
article I, section 7 of the Washington Constitution. And there can be no dispute that
article I, section 7 of the Washington Constitution provides greater protection of
individual rights-including article I, section 7's right to privacy-than does the
3
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State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
Fourth Amendment. Hence, we need not adopt Birchfield's newly discovered
categorical exception to the Fourth Amendment's warrant requirement for all breath
tests here in Washington.
That leaves our court with the remaining question of whether the breath test
and the refusal to perform such a test (in the two consolidated cases before us today)
are admissible in evidence at a criminal trial in our state.
It is surprising that the lead opinion begins and ends its answer to this question
with the Fourth Amendment. Our court has consistently recognized that "[a]rticle I,
section 7 is more protective of individual privacy than the Fourth Amendment, and
we turn to it first when both provisions are at issue." State v. Byrd, 178 Wn.2d 611,
616, 310 P.3d 793 (2013) (citing State v. Bravo Ortega, 177 Wn.2d 116, 122, 297
P.3d 57 (2013); State v. Walker, 157 Wn.2d 307, 313, 138 P.3d 113 (2006); State v.
Afana, 169 Wn.2d 169, 176, 233 P.3d 879 (2010)); see also City of Seattle v.
Mesiani, 110 Wn.2d 454, 456, 755 P.2d 775 (1988) (analyzing article I, section 7
issues first, before Fourth Amendment issues)). The lead opinion doesn't even turn
to article I, section 7 second.
I disagree. I think we should turn to article I, section 7 first. Under article I,
section 7, "a warrantless search is per se unreasonable unless the State proves that
one of the few 'carefully drawn and jealously guarded exceptions' [to the warrant
4
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State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
requirement] applies." Byrd, 178 Wn.2d at 616 (quoting Bravo Ortega, 177 Wn.2d
at 122 (citing Afana, 169 Wn.2d at 176-77; State v. Patton, 167 Wn.2d 379, 386,
219 P.3d 651 (2009))). A search incident to arrest is one of those "'carefully drawn
and jealously guarded exceptions."' Id. (quoting Bravo Ortega, 177 Wn.2d at 122).
It certainly extends to a person and his or effects. I d.
But we have never applied it to bodily contents, that is, to something inside
the person, like breath or blood. Instead, we have applied this exception to things-
like a purse (Byrd), a jacket (State v. Parker, 139 Wn.2d 486, 987 P.2d 73 (1999)),
or a car (State v. Ringer, 100 Wn.2d 686, 697, 674 P.2d 1240 (1983), overruled by
State v. Stroud, 106 Wn.2d 144, 151-52,720 P.2d 436 (1986)).
Bodily constituents like the breath at issue in these cases are different. They
are certainly shielded by the state constitutional right to privacy. In Garcia-Sa/gada,
for example, we held that taking a cheek swab from an arrestee constitutes a search
and that it cannot be accomplished without appropriate authority oflaw. 170 Wn.2d
at 184. To be sure, we did not address the search incident to arrest exception
there. But we made clear that we accord great respect to one's bodily integrity. Id.
at 186-88. In fact, we held that where law enforcement intrusion into "'bodily
integrity"' (as opposed to inanimate things) was concerned, we required a higher
showing to justify the intrusion than is ordinarily required. !d. at 184 (quoting
5
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State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
Schmerber, 384 U.S. at 617). We held that the State must also show three things:
"First, there must be a 'clear indication' that the desired evidence will be found if
the search is performed. [Schmerber, 384 U.S.] at 770. Second, the method of
searching must be reasonable. Id. at 771. Third, the search must be performed in a
reasonable manner. Id. at 772." Id. at 185.
For that reason, I do not think that the Washington Constitution allows us to
apply the same analysis to the issue before our court that the Birchfield majority used
when it applied the Fourth Amendment to the breath tests reviewed in that
court. Instead, the Washington Constitution requires us to begin this analysis by
weighing the importance of the privacy value at stake, against the likelihood that the
test will yield useful results and the reasonableness of the warrantless means. Here,
our case law holds that the right to privacy in one's biological samples and bodily
integrity is an important value. But the State has not shown the reasonableness of
adopting a categorical, blanket, exception to the warrant requirement, as opposed to
a case-by-case inquiry, is reasonable given that privacy interest. To be sure, the
asserted justifications for intruding on the privacy right-here, safety and evidence
preservation-are important. But the question for us is whether the State has shown
that article I, section 7 permits us to allow those justifications to trump the privacy
right on a categorical basis rather than with a case-by-case analysis (as would occur
6
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State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
under the exigent circumstances exception, which might well apply in many DUI
cases).
On this point, I find the Birchfield partial dissent-which is the only Birchfield
opinion that really takes a close look at factual data concerning the time it generally
takes to obtain a breath sample, the time it generally takes to obtain a warrant, and
the minimal additional costs and inefficiencies implicated by procuring a warrant-
more persuasive. It is also more in line with the analysis we adopted in Garcia-
Salgado. That partial dissent appropriately recognizes the need to address each
proffered justification for the warrantless search to see if it is really supported by the
facts, before deciding that there is a need to extend a categorical rule allowing breath
searches incident to arrest for every suspected DUI driver-rather than sticking with
the case-by-case exigent circumstances rule, which allows breath searches only
when necessary. It does so, and finds the proffered justifications wanting.
Birchfield, 136 S. Ct. at 2195 (Sotomayor, J., concurring in part/dissenting in part).
The Washington Constitution demands just such a factual analysis. The
Birchfield partial dissent, which is the only Birchfield opinion to conduct the sort of
analysis that our state constitution requires, is thus the far more persuasive opinion
on this point. I would therefore conclude that a breath test taken without a warrant
or such a case-by-case exigency analysis is impermissible under article I, section 7.
7
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State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
Based on that conclusion, I would hold that the compelled breath test here was
an unconstitutional warrantless search and admission of either the compelled breath
test result or the breath test refusal is impermissible. The reason is that the United
States Supreme Court has consistently held that people have a constitutional right to
refuse to consent to such an unconstitutional warrantless search. Camara v. Mun.
Court, 387 U.S. 523, 540, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). Our court has
said the same thing. State v. Jones, 168 Wn.2d 713, 725, 230 P.3d 576 (2010).
The lead opinion therefore also errs in claiming that even if a warrantless
breath test were unconstitutional, our implied consent law would still function as a
waiver of any challenge to admissibility. Lead opinion at 18.
I disagree. In fact, the logic of Birchfield itself bars such a "waiver" claim
analysis. In Birchfield, the Court explained the federal constitutional limit on the
reach of implied consent laws: the Fourth Amendment permits laws that imply
consent to warrantless breath tests and that render breath test results admissible
because the Fourth Amendment makes such warrantless breath tests constitutional
under the search incident to arrest exception, but the Fourth Amendment bars laws
that imply consent to warrantless blood draws and that render blood test results
admissible because the Fourth Amendment makes such warrantless blood draws
unconstitutional and exempt from the search incident to arrest exception. 136 S. Ct.
8
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State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
at 2184. In other words, if the search is constitutional, there is no right to refuse.
But if the search is unconstitutional there is definitely a right to refuse-and neither
the refusal nor the test can be admitted into evidence. The Supreme Court's holding
on this constitutional matter means that there can be no plausible implied consent
waiver theory allowing admission of the fruits of an unconstitutional search or a
constitutional refusal.
In fact, I have never before seen a court equate a criminal defendant's
relinquishment of a constitutional protection during the course of an investigation or
arrest with a party's decision to waive objection to admission of certain evidence
during the course of an adversary judicial proceeding. The analogy is inapt. The
lead opinion's waiver analysis with its citation to "waiv[ing] the opportunity to
object to the admissibility of evidence" under "ER 103," lead opinion at 18, is what
we use to review a transcript to determine if a defendant's failure to object to a
discretionary evidentiary ruling precludes appellate review. We use a very different
analysis to determine the legal effect of a criminal defendant's relinquishment of a
constitutional right to privacy when confronted by law enforcement before trial,
before adversary proceedings, and before judicial supervision. In that latter
situation, we ask, instead, whether that defendant voluntarily gave up the
constitutional right under a totality of the circumstances test. Schneckloth v.
9
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State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
Bustamante, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); see also
State v. O'Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003) ("To show that valid
consent to a search has been given, the prosecution must prove that the consent was
freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.
Ct. 1788, 20 L. Ed. 2d 797 (1968); State v. Walker, 136 Wn.2d 678, 682, 965 P.2d
1079 (1998). Whether consent was voluntary or instead the product of duress or
coercion, express or implied, is a question of fact to be determined from the totality
of the circumstances. State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d
590 (1999); State v. Jensen, 44 Wn. App. 485,488,723 P.2d 443 (1986).").
I therefore respectfully dissent from not just the lead opinion's conclusion that
breath tests of all suspected DUI drivers fall within the categorical search incident
to arrest exception to article I, section 7' s privacy protection. I also dissent from its
decision to swap implied consent rule waiver analysis for constitutional
voluntariness analysis. In this case, Collette Adams did not relinquish her rights
under the constitutional voluntariness standard or any standard, she asserted them;
Dominic Baird did relinquish his rights, but it was in response to a law enforcement
threat. Hence, our precedent dictates that the next question should be whether that
relinquishment met the constitutional voluntariness standard.
10
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
In this case, however, the State conceded that Baird did not relinquish this
right voluntarily. As the State candidly acknowledged in its brief in our court, "If
the district court is correct that the effect of McNeely is to effectively eliminate
implied consent breath testing, admitting refusal evidence or imposing refusal
penalties does violate the Fourth Amendment and article 1, section 7." Br. ofPet'r
at 37 (citing State v. Gauthier, 174 Wn. App. 257,261, 267,298 P.3d 126 (2013);
Jones, 168 Wn.2d at 725; United States v. Prescott, 581 F.2d 1343, 1353 (9th Cir.
1978). We are certainly not bound by this concession. But we are bound by the
record. And in these cases, the State presented no facts at the evidentiary hearings
in the district court on the voluntariness of the waiver. The trial court therefore ruled
that there was no voluntary waiver.
In a different case, if there were a real factual question about the voluntariness
of consent to a breath test, the State could offer facts at a fact-finding hearing on the
exception to the warrant requirement. And in a different case, if there were a factual
question about whether any other exception to the warrant requirement applied, the
State could offer facts relevant to those case-by-case determinations. But on this
record, the trial court correctly ruled that the State did not present any evidence at
the hearings on the existence of voluntary consent, or exigent circumstances or any
other exception to the warrant requirement, based on the facts in these cases.
11
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
I would therefore affirm both suppression orders.
12
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Baird (Dominic)/State v. Adams (Collette), No. 90419-7
(Gordon McCloud, J., dissenting)
13
State v. Baird
Combined Opinion