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.