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.
