                                                                                FILED 

                                                                              DEC. 3, 2015 

                                                                     In the Office of the Clerk of Court 

                                                                   W A State Court of Appeals, Division III 





                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION THREE

    STATE OF WASHINGTON,                          )
                                                  )         No. 33088-5-111
                         Respondent,              )
                                                  )
           v.                                     )

                                                  )

    GISELA M. SEDANO,                             )

                                                  )         UNPUBLISHED OPINION
                         Appellant.               )
1
1          BROWN, J. - Gisela M. Sedano appeals her vehicular assault-under the

    influence conviction, arguing the trial court erred in denying her pre-trial suppression

    motion. We disagree, and affirm.

                                              FACTS

           Washington State Trooper Anthony Witney was following a vehicle from a

    distance on a rural road when the vehicle suddenly swerved to avoid an oncoming

    vehicle. The driver did not swerve fast enough and the vehicles collided, causing

    injuries to both drivers. Officer Witney approached the driver of the oncoming vehicle

    and observed an unconscious Ms. Sedano in the driver seat. Trooper Witney could

    smell intoxicants in her vehicle.
No. 33088-5-111
State v. Sedano


       Trooper Christopher Kottong, a trooper with specialized training in impaired

driving, met Ms. Sedano at the hospital. He also smelled intoxicants on her breath.

Trooper Kottong contacted his off-duty sergeant to discuss logistics of getting a blood

draw on Ms. Sedano. Hospital staff then notified the trooper they would be airlifting Ms.

Sedano to another hospital soon and if he wanted a blood draw he had a limited window

of availability. Trooper Kottong knew the process of getting a search warrant would

take 40 minutes to an hour. This process included time to prepare the warrant using a

computer in his car, contacting a judge by telephone, obtaining the judge's permission

to sign the warrant, and then returning to the hospital for a licensed professional to

perform the blood draw.

       Trooper Kottong decided he did not have enough time to obtain a search warrant

and arranged to have Ms. Sedano's blood drawn before she left the hospital. Her blood

alcohol level was .13, which is over Washington's legal limit for operating a motor

vehicle.

       The State charged Ms. Sedano with vehicular assault - under the

Influence. She unsuccessfully requested to suppress the results of the blood test,

arguing the absence of exigent circumstances made the warrantless seizure of her

blood illegal. The court found the fact Ms. Sedano was about to be transported beyond

the trooper's ability to obtain a blood sample "formed an exigency sufficient to excuse

the warrantless blood draw." CP at 79. A jury found Ms. Sedano guilty as charged.

She appeals.



                                            2

No. 33088-5-111
State v. Sedano


                                        ANALYSIS

       The issue is whether the trial court erred in denying Ms. Sedano's suppression

motion for the warrantless blood draw. Mr. Sedano contends a warrant was required

under the Supreme Court's holding in Missouri v. McNeely deciding "the natural

dissipation of alcohol in the blood" is not a per se exigency justifying a warrantless blood

draw. Missouri v. McNeely, _U.S._, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696

(2013).

       In reviewing the denial of a suppression motion, we "determine [] whether

substantial evidence supports the challenged findings of fact and whether the findings

support the conclusions of law." State v. GaNin, 166 Wn.2d 242,249,207 P.3d 1266

(2009). Substantial evidence exists when it is enough "to persuade a fair-minded

person of the truth of the stated premise." Id. (citation omitted). Conclusions of law

from an order on a suppression motion are reviewed de novo. Id.

      U[T]he taking of blood samples constitutes a search and seizure within the

meaning of U.S. Const. amend. 4 and Const. art. 1, § 7." State v. Judge, 100 Wn.2d

706,711,675 P.2d 219 (1984). U[A] warrantless search of the person is reasonable

only if it falls within a recognized exception," such as consent or exigent circumstances.

McNeely, 133 S. Ct. at 1558, 1566.

       State v. Komoto, 40 Wn. App. 200, 697 P.2d 1025 (1985) is instructive. There,

the State argued a warrantless entry of a hit and run suspect's residence was justified to

conduct a blood draw. Division One of this court held, "the need for the immediate



                                             3

    i


II
 ]       No. 33088-5-111
         State v. Sedano


I        taking of a blood sample under the circumstances of this case was a sufficient exigency

         to justify proceeding without a warrant, or without attempting to obtain a telephonically

         authorized warrant." Id. at 214. In contrast, in State v. Hinshaw, 149 Wn. App. 747,

         756, 205 P.3d 178 (2009), this court reversed convictions for driving while under the

         influence, first degree negligent driving, and hit and run, holding a warrantless entry into

         the defendant's home to conduct a blood draw was unconstitutional. There, however,

         there was no evidence of "some real immediate and serious consequence resulting

         from a delay in obtaining a warrant." Id. at 755.

                Here, two officers smelled intoxicants on Ms. Sedano's breath, she had just

         caused a head-on collision, and she admitted to drinking prior to driving. The accident

         occurred in a rural area. She was taken by ambulance to a local hospital, but due to her

         injuries she needed to be airlifted to a larger hospital. Trooper Kottong only had a

         limited window before Ms. Sedano would be transported. Because alcohol dissipates in

         the blood stream over time, Trooper Kottong could not get an accurate reading if the

         blood was not tested before she left the area and she would become unavailable for a

         blood draw after the airlift.

                "Exigent circumstances" are an exception to the search warrant requirement. An

         exigent circumstance exists where "obtaining a warrant is not practical because the

         delay inherent in securing a warrant would ... permit the destruction of evidence."

         State v. Smith, 165 Wn.2d 511, 517, 199 P.3d 386 (2009). The McNeeley court held

I

I
t
I
                                                      4

il
1
No. 33088-5-111
State v. Sedano


exigency is determined case-by-case. based on the totality of the circumstances. 133

S. Ct. at 1559.

       While the dissipation of alcohol in the blood is not a per se exigency, it is still an

exigency when coupled with other extenuating circumstances. Here, Trooper Kottong

was told Ms. Sedano was being transported in the very near future to another hospital.

The opportunity to do a blood draw would be lost. Given the totality of the

circumstances, Ms. Sedano's imminent transport "formed an exigency sufficient to

excuse the warrantless blood draw." CP at 79. The findings of fact support the trial

court's conclusion. Thus, the trial court did not err in denying Ms. Sedano's suppression

motion.

      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                               Brown, A.C.J.           q
WE CONCUR:



 ~      ,
        (j.
Fearin~                                        Lawrence-Berrey, J.




                                              5

