DUI Appeal - Washington OKs Use of Expired Blood Tubes

In State of Washington v. Johnson, Not Reported in P.3d, 2011 WL 1485635 (Wash.App. Div. 1) the court summary reads as follows:

Michael Johnson appeals his judgment and sentence for felony driving under the influence of intoxicants (DUI). Because the State presented prima facie evidence that the blood analysis performed was free from adulteration, the court properly denied Johnson's motion to suppress that evidence. In a statement of additional grounds, Johnson claims he was denied his right to a fair trial because two witnesses involved in processing the evidence were unavailable to testify at trial. This argument does not warrant reversal. Washington State Patrol Trooper Gerald Ames responded to a one car collision on Interstate 5. There he found a Jeep Wrangler tangled in the cable guard rail on the side of the interstate. Johnson was standing in front of the Jeep and informed Trooper Ames that he was not injured. Johnson claimed he was run off of the road by another vehicle. Trooper Ames performed a records check and learned that Johnson's driving status was revoked so he placed Johnson under arrest. Although Trooper Ames did not smell intoxicants, he noticed that Johnson was “lethargic, disoriented, walked with a stagger, and was unsteady on his feet.” After additional observation of impairment, Trooper Ames notified Johnson that he was under arrest for DUI. Trooper Ames then transported Johnson to St. Joseph's Hospital for a blood draw. Phlebotomist Alicia Kester performed the blood draw. Trooper Ames supplied her with two tubes in which to collect the blood samples. Kester informed Trooper Ames that the tubes were past their expiration date by almost four months, but he instructed her to use them anyway. Dr. Naziha Nuwayhid, a forensic scientist at the state toxicology laboratory, tested both blood samples nearly two years after Johnson's arrest. Only one of the results was admissible at trial and that result showed normal therapeutic levels of Clonazepam and higher than normal therapeutic levels of Oxycodone in Johnson's blood. The State charged Johnson with felony DUI and another crime unrelated to this appeal. Before trial, Johnson moved to suppress the blood analysis evidence, arguing that the blood sample was improperly collected. After an evidentiary hearing, the trial court denied Johnson's motion and entered written findings of fact and conclusions of law. The blood analysis evidence was admitted at trial, without objection. A jury found Johnson guilty of felony DUI and the court imposed a standard range sentence.
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DUI Appeal - Washington Says Implied Consent is Criminal Punishment

In State of Washington v. Yallup, --- P.3d ----, 2011 WL 839682 (Wash.App. Div. 3), a tribal Indian was stopped inside his reservation, on a state highway, and arrested for DUI and driving while suspended. Under the implied consent laws, his blood was also drawn. On appeal, the defendant challenged the jurisdiction of the state to charge him. Indian sovereignty prevents a State from imposing laws inside an Indian reservation that are merely regulatory or non-criminal. Here, if the court found that the implied consent laws were civil in nature, the blood result would be inadmissible. Using a result-driven analysis, the court held that implied consent laws are primarily criminal in nature:

The implied consent statute, RCW 46.20.308, was adopted to “control or reduce the drunk-driver hazard to highway safety.” State v. Moore, 79 Wash.2d 51, 53, 483 P.2d 630 (1971). It operates by recognizing that drivers have consented to alcohol testing by the operation of a motor vehicle within the state. RCW 46.20.308(1). Consent can be withdrawn in some circumstances, but the license to drive will be suspended when consent is withdrawn. RCW 46.20.308(2)(a). In the event that consent is withdrawn, evidence of the refusal to take the test “may be used in a criminal trial.” RCW 46.20.308(2)(b). The statute was upheld in Moore against various constitutional challenges, with the court recognizing the statute “having as its purpose the reduction of traffic carnage occasioned by the inebriated driver.” 79 Wash.2d at 58, 483 P.2d 630.

The clear focus of the implied consent statute is gathering evidence for prosecuting criminal cases of suspected impaired driving. Statutes that authorize evidence collection in support of prosecuting criminal cases are properly classified as criminal in nature. To the extent that the difference between criminal and civil jurisdiction even matters under RCW 37.12.010(8), we have no trouble categorizing the implied consent statute as criminal.
NOTE: This approach leaves the prosecution open to attacks under the double jeopardy clause - if a defendant receives an implied consent suspension, then any subsequent criminal prosecution would place the driver in criminal jeopardy twice.


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DUI Appeal - Fog line 3 times, Stop Invalid

In State of Washington v. Archuleta, --- P.3d ----, 2011 WL 910023 (Wash.App. Div. 1) the defendant, a juvenile, unsuccessfully challenged the stop of his vehicle in the trial court. The police report stated:

On 091108, at about 0101 hours, I observed a blue Oldsmobile driving in the 400 Block of West Valley Highway S in Algona, King County, Washington. I closed distance with the vehicle and was observing its driving as it proceeded north on the roadway. I observed the right tires of the vehicle cross the white “fog line” in its lane of travel. From 1 st Ave N to the 800 block of West Valley Highway, the vehicle's right tires touched or crossed the fog line at least 3 times in a quarter mile. I stopped the vehicle.

The Washington lane usage statute provided:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:(1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The appeals court found the stop was illegal. Citing to other cases including Prado v. Washington 145 Wn.App. 646, 186 P.3d 1186 (2008) , the appeals court reasoned that the statute did not create a strict liability offense and that the defendant's act of “crossing over a lane once for one second by two tire widths [did] not, without more, constitute a traffic violation justifying a stop by a police officer.” In concluding, the opinion stated:

As Archuleta, argues, however, in holding that the lane travel statute does not establish a strict liability offense, Prado actually follows many other states to establish a totality of the circumstances test, including consideration of whether the driver's actions constituted a danger to others and requiring a more sophisticated analysis than just counting the number of times a driver might touch the lane line. Notably, the out-of-state cases that the Prado court found persuasive included factual scenarios that involved more than one instance of touching or crossing a lane divider line, which were nonetheless still insufficient to justify a stop under statutes similar to ours.FN12

In attempting to meet its burden of justifying a warrantless seizure here, the State established only that Archuleta drove once over the fog line by an unstated margin for an unstated length of time, and then twice more drove so that he touched the line, again for an unstated length of time. There was no evidence that this driving imperiled any other traffic or property on the road or off the road, or that the officer recognized this type of driving as suggesting impairment or inattention on the part of the driver. Nor does the record support such inferences. The very limited evidence presented here established no more than “brief incursions over the lane lines.” As the Prado court found, this does not constitute a violation of the lane travel law.

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