State v. Martines - DUI blood draws are two searches! Here come the suppression orders...

On July 21, 2014, the Washington Court of Appeals, Division One, published its decision regarding an improper warrant for a blood draw of a DUI suspect in State v. Martines.  The court held that (1) the extraction of the blood was one search while (2) the testing of the blood constituted another. 

“The extraction of blood from a drunk driving suspect is a search.  Testing the blood sample is a second search.  It is distinct from the initial extraction because its purpose is to examine the personal information blood contains.  We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”

 

A Washington State Patrol trooper arrested Mr. Martines on suspicion of felony DUI and applied for a warrant based upon his observations. The trooper’s affidavit of probable cause included the following language, “may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive.”  The court concluded that since the trooper’s affidavit failed to mention the blood would be extracted and tested, the results (i.e. blood draw) were to be suppressed.

Obviously the warrant utilized in this particular case is the same one all trooper’s use across Washington State and defense attorneys will inevitably seek to apply the court’s ruling to every blood case wherein a DUI suspect has his/her blood drawn for the purpose of testing it for alcohol or the presence of any drug.  I suspect the State will then seek to obtain another warrant to test the blood held at the toxicology lab (presuming it has been saved) again.  However, this seeking of an additional warrant will obviously be challenged.  Can the State seek an additional warrant to test blood it already obtained based upon a previously invalid warrant?  The court’s will have to decide that issue, but it should be interesting.

One other issue I believe this decision raises is that if a blood draw and subsequent test of that blood are indeed two separate searches won’t this raise issues regarding the Implied Consent Warnings for Blood.  The warnings advise an individual that their blood will be extracted for testing, but the language specifically says “this test…..”  It does not mention “these tests” to clearly indicate the blood will be searched twice (extraction and subsequent testing).  Washington Courts have long held that inadequate Implied Consent Warnings subject the ill-gotten gain (breath or blood test) to suppression. 

The State will argue that once you submit to a test the State can do whatever it wishes, but I disagree because the court in Martines clearly stated, “We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”  This means that even if the blood is lawfully procured, either through a warrant or by consent, the State must obtain a warrant to test the blood. 

Again, the courts will have to decide this issue but it will be interesting. 

Uncertainty in Breath Testing - BAC Datamaster and Datamaster CDM

I'm no scientist, let's get that out of the way right off the bat, but I do have a basic understanding of breath testing principles utilized in garnering results with a BAC Datamaster and Datamaster CDM.  Both of these "instruments' (or as I say, machines) are approved for the quantitative measurement of alcohol in a person's breath.  See WAC 448-16-020.  Essentially, the State Toxicologist has approved these machines for use in testing person's breath alcohol concentration when arrested for an alcohol related driving offense in Washington State.

Breath testing for evidentiary purposes in Washington consists of an operator collecting two separate samples of breath independently from an arrested subject.  The operator (usually the arresting law enforcement officer) enters some basic information into the machine, such as date of birth of the subject, etc. then just waits 15 minutes or more and has someone blow into the tube attached.  Each time a DUI subject blows the operator is to ensure a new mouthpiece is used.  After the samples are collected, if everything went right, meaning there were no errors for an invalid sample, samples outside of 10% of the mean, ambient air, radio frequency interference, etc., it will produce a ticket showing two subject samples, that is the two numbers related to the persons breath alcohol concentration.  The State of Washington's legislature has made it very simple for prosecutor's to admit these samples (two numbers on the ticket) into evidence and present to a jury.  Literally an elementary student could ask the breath test technician the necessary questions for admissibility, I'm not kidding.

Once the prosecution ends its' direct of the technician, this is where a trained DUI defense attorney needs to pounce.  As an experienced Seattle DUI attorney I have cross examined breath test technicians on many many occasions when challenging the results of a breath test document.  The prosecutor's job is done once they get the number in front of the jury, but the DUI defense attorney's is just beginning.  What do I mean by pounce, well you need to hammer home to the jury that the alleged numbers are really a probability fraught with uncertainty and the technician will have no choice but to admit the numbers are not perfect.  Any measured value has uncertainty, as I understand it, that is how science works!  No scientifically produced value is perfect and each measured "subject sample" could be much lower or much higher given uncertainty.  Why didn't the prosecutor ask the technician about that and disclose it to the jury?  Well, of course they want that precious numbered to be free from any speculation.  That is why it is absolutely necessary to discuss that with the technician on cross and to make sure and point out in summation that the prosecutor essentially hid that information from them.  

Once you discuss uncertainty, make sure and then discuss what a partition ratio is with the technician. The jury needs to know everything about how these measured values are based upon presumptions.  A partition ratio is, in layman's terms, an assumed value that it utilized to compare blood to breath.  The dumbed down version is this, the ratio assumes that 2100 mL of breath contains the same amount of alcohol as 1 mL of blood.  However, just by doing some minimal research on partition ratio's will reveal numerous treatises wherein scientists, medical students, doctors, etc. have concluded the 2100:1 value is incorrect and can have vast ranges, meaning that someone's measured breath test on a Datamaster presumes this 2100:1 value but if the partition ratio is actually lower or higher, as has been concluded by these treatises, the actual breath test result is vastly skewed.  Make sure you bring this out of technician and discuss the revelation to the jury.  Again, a great point to make in summation is "why didn't the prosecutor inform you of this presumption when they presented their case?"  It shows that the prosecutor doesn't want the jury to speculate on things that are clearly speculative!

One additional argument I commonly make is that the presumed temperature of the simulator is also based upon skewed conclusions.  The simulator solution is a mixture of ethyl alcohol and some type of distilled water to simulate a known value, e.g. .04, .08. 10 or .15.  The toxicology lab prepares a simulator solution to be approximately .08 for use in the datamaster.  The mixture is tested by several toxicologists an certified for use. The measured value also has an uncertainty and that should also be exposed to the jury, especially if the simulator solution is closer to the .072 to .088 ranges (that is the allowable range of a simulator solution for use with the datamaster).  The mixture, for use in the datamaster, must be heated to a known value and the common value is 34 degrees Celsius plus or minus .2.  In between a subject's sample, the simulator solution runs into the datamaster for an "external" check to make sure the datamaster is reading a .08 mixture (although if the reading is anywhere between .0-72 and .088 it is acceptable?  Really? Anyway, that is an argument for another day).  Why is that 34 degrees value important?  Well that is the presumed temperature of a person's mouth when exhaling.  Again, there are many treatises and experts who agree that 34 degrees is not the correct average temperature of every person, and technician's and toxicologists who testify in DUI trials must agree, there is too much proof to the contrary and science simply doesn't support we are all the same.  Here is where it is necessary for your DUI attorney to expose the speculative nature of breath testing.  If someone's mouth temperature is lower or higher, invariably the breath test measured on the datamaster will be either lower or higher.  Again, in summation it is essential your DUI attorney points out this non-disclosure of information to the jury. 

At the end of the day, a trained DUI defense attorney can show that these alleged measured values are fraught with speculation, yet when determining the guilt or innocence of a citizen the government has no problem with presumptions.  There are numerous other situations in which a trained Washington State DUI attorney can expose speculative breath tests results to a jury.  

If you find yourself in need of a renowned, trial tested DUI Defense attorney, look no further than the Webb Law Firm.  Call today (425) 398-4323

 

 

 

 

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He has been repeatedly recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, and Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com

 

 

 

July 4th Emphasis Patrols are out! Don't get stopped!

Every July 4th (and every holiday for that matter) the Washington State Patrol and other police agencies conduct DUI Emphasis Patrols in anticipation of an increased number of DUI drivers.  Don't be one of those persons stopped for DUI.

Take a cab, call a friend or find some other form of public transportation to get you safely home if you have been drinking.  Remember, as I always say, it isn't against the law to drink and then drive, but with these DUI patrols the law enforcement person who may contact you will arrest you if they smell any alcohol.

What do you do if stopped and you have had something to drink?  Read my advice on whether to take field tests or not at http://www.webbattorney.com/field-sobriety-tests.  Also, always contact an attorney at the station before you submit to any breath test, even if it is a public defender, they can provide the proper advice in these circumstances and can then be a useful witness if your case is filed.

Also, if you are out on a boat and are stopped for a "wake violation" and charged with Operating a Vessel While Under the Influence or BUI as we commonly refer to it, give us a call to discuss your options (or visit - http://www.webbattorney.com/bui-boating-dui.php).

Remember the best way to avoid a DUI is to not drink and drive, but if you or a loved one, or an acquaintance is stopped and arrested for DUI, have them contact our attorneys for immediate assistance at (425) 398-4323.

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About the author:

Nathan Webb, is a seasoned Seattle DUI Lawyer.  His practice of 10 years emphasizes DUI defense.  He has been repeatedly recognized as one of Seattle's Best Attorneys! He has been repeatedly recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, and Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com