In Part 1 we discussed how Missouri v. McNeely resolved the split of authorities among jurisdictions in the United States and tended to abrogate a good amount of prior Washington case law.
McNeely held that the natural dissipation of alcohol in the bloodstream does not present an emergency in and of itself (i.e. a “per se exigency”) relieving the officer of the need to get a warrant. Regardless of the natural dissipation of alcohol in the blood stream, police must obtain a warrant before the blood sample can be drawn without consent unless there are additional “special facts” (e.g. an accident) giving rise to an emergency where obtaining a warrant is truly impracticable.
The McNeely holding generated new debate concerning the admissibility of one’s refusal to consent to a warrantless blood draw. Persons have a constitutional right to refuse warrantless searches and seizures. However, oftentimes prosecutors seek to offer one’s refusal to submit to a breath or blood test as evidence of guilty knowledge. This creates the potential constitutional problem.
First, breath, blood, urine, and DNA cheek swab testing are searches and seizures. McNeely, 133 S.Ct. at 1558 (blood test implicates “most personal and deep-rooted expectations of privacy”); Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616-617, 109 S.Ct. 1402 (1989) (urine testing, blood testing, and breathalyzer testing that requires production of alveolar or “deep lung” breath are searches); Schmerber, 384 U.S. at 767 (blood test plainly constitutes search of a person); Judge, 100 Wash.2d at 711 (“We begin our analysis with the proposition that the taking of blood samples constitutes a “search and seizure” within the meaning of U.S. Const. amend. 4 and Const. art. 1, §7); Wetherell, 82 Wash.2d at 871(“intrusion into his body to extract the blood for analysis amounted to an unlawful search and seizure prohibited by the fourth amendment…”); State v. Gauthier, 174 Wash.App. 257, 263, 298 P.3d 126 (2013) (“A blood test or cheek swab to procure DNA evidence constitutes a search and seizure under the Fourth Amendment and article I, section 7”); Baldwin, 109 Wash.App. at 523 (“The taking of a blood sample is a search and seizure within the meaning of the Fourth Amendment and article I, section 7…”).
Second, individuals have a constitutional right to withhold consent to warrantless sampling of their breath, blood, urine, and DNA. See Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041 (1973); United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978); State v. Jones, 168 Wash.2d 713, 725, 230 P.3d 576 (2010) (prejudicial misconduct where prosecutor commented on Fourth Amendment right to refuse DNA swab sample); State v. Gauthier, 174 Wash.App. 257, 263, 298 P.3d 126 (Wash. Ct. App. 2013) (use of refusal to consent to warrantless search and seizure was manifest constitutional error).
Third, case law provides that assertion of the constitutional right to be free of a nonconsensual warrantless search or seizure is inadmissible as evidence of guilt. The United States Circuit Courts of Appeals “…that have directly addressed this question have unanimously held that a defendant’s refusal to consent to a warrantless search may not be presented as evidence of guilt.” United States v. Runyan, 290 F.3d 223, 249-251 (5th Cir. 2002); Gauthier, 174 Wash.App. at 265-266. This includes the Ninth Circuit. See Prescott, infra. Fifteen states have reached the same conclusion. Gauthier, 174 Wash.App. at 265; id. at 265 n. 2.
For example, in 1978, in United States v. Prescott, the Ninth Circuit held that a resident’s refusal to permit a warrantless entry into her home was not admissible as evidence of guilt. United States v. Prescott, 581 F.2d 1343, 1346 (9th Cir. 1978); id. at 1350-1351. It explained a “passive refusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing.” Id. at 1351. It also concluded it was prejudicial error to permit the government to prove, as evidence of the offense charged, that Prescott declined to unlock her door when the officers did not have a warrant. Id. at 1350. The court reasoned “[o]ne cannot be penalized for passively asserting this right, regardless of one’s motivation. Just as a criminal suspect may validly invoke his Fifth Amendment privilege in an effort to shield himself from criminal liability, so one may withhold consent to a warrantless search, even though one’s purpose be to conceal evidence of wrongdoing.” Id. at 1351 (internal citations omitted).
Prescott concerned the home. It is true heightened constitutional protection is afforded to the home. State v. Schroeder, 109 Wash.App. 30, 40-41, 32 P.3d 1022 (Wash Ct. App. 2001) (quoting State v. Johnson, 104 Wash.App. 409, 415, 16 P.3d 680 (Wash. Ct. App. 2001)). The law recognizes every man’s house is his castle. Payton v. New York, 445 U.S. 573, 596, 100 S.Ct. 1371 (1980); id. at 596 n. 44; id. at 597 n. 45; id. at 598; id. at 604. But the human body is a temple. And the United States Supreme Court has made clear it can receive no less protection than the home. McNeely, 133 S.Ct. at 1558; Schmerber, 384 U.S. at 770. The concept that refusal to submit to a warrantless search and seizure has also applied in situations involving the human body.
For example, in 2013, in State v. Gauthier, Division One held that a prosecutor’s use of a defendant’s invocation of his constitutional right to refuse consent to a warrantless search as substantive evidence of his guilt was a manifest constitutional error. Gauthier, 174 Wash.App. at 267. Division One concluded the error deprived Gauthier of his right to invoke with impunity the protection of the Fourth Amendment and article I, section 7. Id. The court also reasoned that such evidence is ambiguous. Id. at 264-265. Although the facts of Gauthier concerned a cheek swab for DNA, its holding and rationale seem equally applicable to breath, blood, and urine testing.
Unfortunately, lower trial courts have differed on this issue. Some courts have suppressed refusals to submit to warrantless breath or blood tests. However, other courts continue to allowed refusals to be admitted despite apparent changes in the law in this area. This continues to be an evolving area of law.
If you are arrested for DUI remain silent when you are told you have the right to remain silent. Also make it very clear that you want to speak with an attorney. It is critical to speak with an attorney about your situation before making the decision whether to submit to a breath or blood test.