Monthly Archives: May 2016

UPDATE: Will the prosecutor retry state Auditor Troy Kelley?

I previously wrote about the prosecutor’s decision on whether to retry State Auditor Troy Kelley on the charges that the jury could not reach a verdict on (the jury was not unanimously guilty or not guilty). The prosecutor still has not released a statement with their decision. The deadline to do so would be the statute of limitations on the charges, which is years away. It now appears that Mr. Kelley’s attorneys are getting inpatient and do not want to wait until the prosecutor has made their decision, or the statute of limitations has run. Instead, they are going directly to the judge and asking that the court rule that Kelley be acquitted of the remaining charges. The evidence would have to be overwhelmingly in favor of acquittal in order for the court to grant this request. The court’s decision should come soon.

Proving DUI with a blood test

Most DUI arrest involve a breath alcohol test using a breath testing machine. However, some DUIs involve a blood test for a variety of reasons. For one, breath tests only test for alcohol and will not show the presence of drugs, such as marijuana. Also, if there is a collision, the suspect may not be in a condition to provide a breath sample, where as a blood test can be taken even if the suspect is unconscious. However, if the police want to take a blood sample from a suspect, they must obtain a search warrant signed by a judge. The reason for this is that the court believes a person has a privacy interest in the contents of the their blood, just like a person has a privacy interest in the contents of their home. The only exception to the warrant requirement, in the blood test context, would be if there are “exigent circumstances,” which means based on the particular case, it would not be possible to obtain a warrant prior to the evidence disappearing (in other words, there is just not enough time for a warrant). In the modern world of cell phones, and smart phones with email capabilities, there is rarely an “exigent circumstance” that would allow the police to take a blood sample from a suspect without first obtaining a search warrant.

For any warrant (blood test, search of your home, or search of your vehicle) the Fourth Amendment of the US Constitution requires the police to have “probable cause” that the item searched will contain evidence of a crime. So, in a DUI case, in order for the police to convince a judge to grant a search warrant for a person’s blood, the police must be able to convince the judge that there is “probable cause” that the blood will show that the person is guilty of DUI (because there is enough alcohol and/or drugs in the blood to show that the person is under the influence of alcohol and/or drugs). Probable cause is not a very high standard, and only requires sufficient facts to lead a reasonable person to conclude that there is a probability that the suspect is involved in criminal activity. In a DUI case, odor of alcohol, slurred speech, or being uncoordinated, could be enough to get a search warrant for a blood test, particularly when the suspect also crashed their car. So it is pretty easy for the police to get a warrant for a blood test if they want to get one.

If the police get a search warrant from a judge to take a blood sample, they will take the suspect to a hospital where a nurse at the hospital will take the blood sample. If the suspect refuses to allow the blood test, the police will hold the suspect down and forcibly take the blood test (because they believe the search warrant gives them the authority to do so). The police will eventually transfer the blood sample to the Washington State Patrol’s Toxicology laboratory to have the sample tested for the presence of drugs and alcohol.

So what if, for some reason, the police do not bother getting a search warrant for their own blood sample but a blood sample is taken by the hospital in order for the hospital to treat the suspect’s injuries as a result of a vehicle collision? For instance, what if the police do not initially suspect drugs and/or alcohol are a factor in a collision, but the hospital later concludes that drugs and/or alcohol did play a role. Or what if the police arrive to the scene of a collision late and never have an opportunity to investigate the suspect to determine if there is probable cause to support  a search warrant. For both of these situations, the key to the DUI case would be held by the suspect’s doctors and not the police.

Although these situations rarely occur, Washington courts have addressed this issue. In State v. Smith, 929 P.2d 1191, 84 Wn.App. 813 (1997), the police initially thought the passenger in a collision was the driver of the vehicle (because the true driver was blaming the passenger). Eventually, the police figured out who the real driver was, and charged this driver with DUI. At the scene, the police observed that all the occupants in the vehicle were drunk, so the police had probable cause for DUI for whoever the true driver was. But since the police did not initially know who the true driver was, they never sought a breath or blood test from this driver. The driver was treated at the hospital, and the police believed these hospital records would help prove the driver was guilty of DUI. After charging the driver with DUI, the prosecutor obtained a court order directing the hospital to provide the actual blood sample (not the results, but the actual sample that the police would later retest) and the driver’s medical records from the hospital. The driver attempted to block the prosecutor’s efforts, arguing that Washington’s physician-patient privilege law, found in RCW 5.60.060(4), prevented the hospital from releasing the records.

The court pointed out that Washington’s physician-patient privilege law prevents a physician from testifying in a civil action (but not criminal) about information the physician acquired when treating the patient, unless the patient consents. The privilege has been extended to criminal actions, but “only so far as practicable” and “requires a balancing of the benefits of the privilege against the public interest of full revelation of the facts.” In this particular case, the court ruled that the public’s interest in holding people accountable for DUI outweighs the benefits of the privilege and accordingly, the privilege did not apply to the blood sample taken by the hospital, nor to any report of its alcohol content. So the court ruled that the hospital should release both the blood sample, and the results of any blood testing, to the prosecutor. While the court ruled the privilege did not apply to the blood sample, the court believed the privilege would prevent the release of other medical records besides the blood sample.

In State v. Charley, 136 Wn.App. 58, 147 P.3d 634 (2006), the driver in a serious motor vehicle collision was rushed to the hospital where the hospital took two samples of the driver’s blood. The hospital tested one of the samples for medical purposes, showing a result of .11 (above the .08 legal limit). The police obtained a search warrant and obtained this information from the hospital. The search warrant also allowed the police to obtain the other blood sample, which the police had tested by the WSP Tox Lab and produced a result of .19. Both the samples contained an anticoagulant (which keeps the blood sample from clotting), but neither sample contained an enzyme poison (which preserves the blood sample from spoiling). Without an enzyme poison, it is possible for the blood sample to produce its own ethanol, particularly if the sample is not kept cold. So the much higher .19 blood sample could have been the result of not properly preserving the sample.

At trial, the prosecutor attempted to introduce both tests (the .11 and the .19 test). The court ruled that the sample tested by the WSP Tox Lab was not admissible because it did not comply with WAC 448-14. WAC 448-14 lists the procedures the WSP Tox Lab must follow in order to introduce a blood test in at trial. One of the requirements is that the sample have both an anticoagulant and an enzyme poison. Since the sample did not have an enzyme poison, the court ruled that the sample tested by the Tox Lab could not be admitted for any purpose.

Turning to the sample tested by the hospital (the .11 sample), the court ruled that since this test was conducted by the hospital for medical purposes, and not by the WSP Tox Lab, that the test did not have to comply with WAC 448-14. However, the court ruled that the sample could not be used to prove that the driver had a blood alcohol level above .08, but only be used to show that the driver was under the influence of alcohol. For DUIs, you can be guilty if you are above .08 (the per se prong) or if you are under the influence of alcohol (regardless of what your alcohol reading is, or even if there is no alcohol reading). The court reasoned that it would not be fair to allow the prosecutor to use the .11 hospital test to prove the driver was above .08 when that test did not comply with WAC 448-14. However, the court ruled that RCW 46.61.506 did allow “other competent evidence” to be admitted in addition to blood tests that strictly comply with WAC 448-14. But this “other competent evidence” could not be used to prove a “per se” (above .08) violation of the DUI law. So in the end, the .11 was allowed to be introduced at trial, which would most likely get the driver convicted regardless of whether the jury considers the evidence for the per se .08 prong of the DUI statute, or the under the influence of alcohol prong of the statute.

It should be noted that the federal Health Insurance Portability and Accountability Act (HIPAA) prevents the unauthorized release of medical records. However, if the police are seeking medical records for a DUI case they are most likely doing so pursuant to a search warrant and court order. So the safeguards provided in HIPAA would most likely not prevent the police from obtaining the medical records.

Vehicular assault without alcohol?

News broke today that a Snohomish County sheriff’s deputy has been charged with vehicular assault in connection with a crash last year in which a man lost his legs. In reading over the news articles, it does not appear that alcohol or drugs played a factor in the collision. So why was the deputy charged with vehicular assault? While a DUI requires evidence that a person is under the influence of drugs and/or alcohol, vehicular assault (and vehicular homicide) do not.

RCW 46.61.522, which is the vehicular assault statute, states, “[a] person is guilty of vehicular assault if he or she operates or drives any vehicle: (a) In a reckless manner and causes substantial bodily harm to another; or (b) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, and causes substantial bodily harm to another; or (c) With disregard for the safety of others and causes substantial bodily harm to another.” So while a vehicular assault can be based on drugs and/or alcohol, it can also be based on really, really, stupid driving.

Turning to the deputy’s case, it appears the “really, really, stupid driving” was the running of a stop sign. With no criminal history, the deputy would be facing one to three months in jail if he is guilty of the lesser prong of “disregarding the safety of others and causes substantial bodily harm to another,” where as he would be facing three to nine months of jail if he is guilty of the “DUI” or “reckless manner” prong of the vehicular assault statute.

The injured driver will most likely sue the deputy and Snohomish County for damages. RCW 4.24.300 and RCW 4.24.310 make emergency responders immune from liability but not necessarily if they negligently operate a motor vehicle. I like how the charging decision and case was sent to the Skagit County Prosecutor’s Office, even though the crime occurred in Snohomish County. The Snohomish County prosecutors would have had numerous other cases with this deputy, and it would have been impossible for them to make an impartial charging decision on the case.