                                                              FILED
                                                           MARCH 10, 2020
                                                     In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division III



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

CITY OF RICHLAND,                            )        No. 36268-0-III
                                             )        (consolidated with
                     Respondent,             )        No. 36337-6-III)
                                             )
              v.                             )
                                             )
DEAN ALLEN STENBERG,                         )
                                             )
                     Appellant.              )        UNPUBLISHED OPINION
                                             )
CITY OF PASCO,                               )
                                             )
                     Respondent,             )
                                             )
              v.                             )
                                             )
JASON MICHAEL SHERGUR,                       )
                                             )
                     Appellant.              )

       LAWRENCE-BERREY, C.J. — In this consolidated appeal, we granted discretionary

review to answer whether law enforcement must offer a person suspected of driving

under the influence a breath test before obtaining a search warrant to draw blood. We

answer no and affirm the two trial courts.
No. 36268-0-III; No. 36337-6-III
City of Richland v. Stenberg


                                          FACTS

       Dean Stenberg

       Officer Bonnie Meyer of the Richland City Police Department stopped Dean

Stenberg for a traffic violation. The officer could smell a strong odor of intoxicants from

Stenberg’s breath. The officer conducted field sobriety tests and thereafter applied for

and obtained a search warrant to obtain a sample of Stenberg’s blood. Stenberg’s blood

was drawn, and toxicology results showed the alcohol/blood content to be 0.18g/100ml.

       Stenberg moved to suppress the toxicology results and argued the search violated

the Fourth Amendment to the United States Constitution, article I, section 7 of the

Washington Constitution, and Washington’s implied consent statute. The Richland

municipal court denied Stenberg’s motion. The municipal court, hearing the case on

stipulated facts, convicted Stenberg of operating a motor vehicle while under the

influence of intoxicating liquor.

       Stenberg appealed the Richland municipal court’s ruling denying his motion to

suppress the toxicology results. A Benton County Superior Court affirmed the municipal

court’s ruling. Stenberg timely appealed to this court.




                                             2
No. 36268-0-III; No. 36337-6-III
City of Richland v. Stenberg


       Jason Shergur

       Officer Thomas Groom of the Pasco City Police Department stopped Jason

Shergur for a traffic infraction. The officer could smell an odor of intoxicants coming

from Shergur’s breath. The officer conducted field sobriety tests and thereafter applied

for and obtained a search warrant to obtain a sample of Shergur’s blood. Shergur’s blood

was drawn, and toxicology results showed the alcohol/blood content to be 0.16g/100ml.

       Shergur moved to suppress the toxicology results and argued the search violated

the Fourth Amendment to the United States Constitution, article I, section 7 of the

Washington Constitution, and Washington’s implied consent statute. The Pasco

municipal court denied Shergur’s motion to suppress. The municipal court, hearing the

case on stipulated facts, convicted Shergur of operating a motor vehicle while under the

influence of intoxicating liquor.

       Shergur appealed the municipal court’s decision to deny his motion to suppress the

toxicology result. A Franklin County Superior Court affirmed the municipal court’s

ruling. Shergur timely appealed to this court.

       We granted discretionary review of both rulings and consolidated Stenberg’s and

Shergur’s appeals. See Comm’rs Ruling, City of Richland v. Stenberg, No. 36286-0-III

consolidated with No. 36337-6-III (Wash. Ct. App. Dec. 31, 2018).


                                             3
No. 36268-0-III; No. 36337-6-III
City of Richland v. Stenberg


                                       ANALYSIS

       Stenberg and Shergur argue law enforcement must offer a person suspected of

driving under the influence a breath test before applying for a search warrant. We

disagree.

       A.     WASHINGTON’S IMPLIED CONSENT STATUTE

       Stenberg and Shergur argue Washington’s implied consent statute makes it

perfectly clear that the State can demand a blood draw under only limited circumstances.

       We review issues of statutory interpretation de novo. State v. Schultz, 146 Wn.2d

540, 544, 48 P.3d 301 (2002). Our primary goal is to effectuate legislative intent. In re

Custody of Shields, 157 Wn.2d 126, 140, 136 P.3d 117 (2006). We derive legislative

intent from the plain language when its meaning is plain and unambiguous. City of

Seattle v. St. John, 166 Wn.2d 941, 945, 215 P.3d 194 (2009).

       RCW 46.20.308,1 Washington’s implied consent statute, provides in part:

               (1) Any person who operates a motor vehicle within this state is
       deemed to have given consent, subject to the provisions of RCW 46.61.506,
       to a test or tests of his or her breath for the purpose of determining the
       alcohol concentration in his or her breath if arrested for any offense where,
       at the time of the arrest, the arresting officer has reasonable grounds to
       believe the person had been driving or was in actual physical control of a

       1
         Stenberg and Shergur repeatedly cite “RCW 4620.508” in their brief. There is no
such statute. Nor does RCW 46.20.508 exist. The State responds with citations to
RCW 46.20.308, which also is the statute cited in the rulings on review.

                                             4
No. 36268-0-III; No. 36337-6-III
City of Richland v. Stenberg


       motor vehicle while under the influence of intoxicating liquor or any drug
       or was in violation of RCW 46.61.503.
              ....
              (4) Nothing in subsection (1), (2), or (3) of this section precludes a
       law enforcement officer from obtaining a person’s blood to test for alcohol,
       marijuana, or any drug, pursuant to a search warrant, a valid waiver of the
       warrant requirement, when exigent circumstances exist, or under any other
       authority of law. . . .

       We find Stenberg’s and Shergur’s argument unpersuasive. Although omitted in

their brief, subsection (4) clearly permits a law enforcement officer to obtain a warrant for

a person’s blood for testing. See City of Seattle, 166 Wn.2d at 946 (“[A]n officer may

obtain a blood alcohol test pursuant to a warrant regardless of the implied consent

statute.”).

       B.     CONSTITUTIONAL ARGUMENTS

       Stenberg and Shergur contend the searches were unconstitutional under our state

and federal constitutions. We review constitutional issues de novo. State v. Budd, 185

Wn.2d 566, 571, 374 P.3d 137 (2016).

       Article I, section 7, of the Washington Constitution provides: “No person shall be

disturbed in his private affairs, or his home invaded, without authority of law.” A

lawfully issued search warrant complies with the “authority of law” requirement. York v.

Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 306, 178 P.3d 995 (2008).




                                             5
No. 36268-0-III; No. 36337-6-III
City of Richland v. Stenberg


       The Fourth Amendment provides, in part, “The right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no warrants shall issue, but upon probable cause . . . .”

       Stenberg and Shergur cite Schmerber v. California, 384 U.S. 757, 768, 86 S. Ct.

1826, 16 L. Ed. 2d 908 (1966) and Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct.

2160, 195 L. Ed. 2d 560 (2016) to support their argument that blood tests are sufficiently

invasive that they may not be administered by warrant unless law enforcement first offers

the suspect the option of a breath test. Those authorities are contrary. Schmerber

explains that the taking of blood is commonplace, the quantity taken is minimal, and the

procedure involves virtually no risk, trauma, or pain. 384 U.S. at 771. And Birchfield

notes, “Nothing prevents the police from seeking a warrant for a blood test when there is

sufficient time to do so in the particular circumstances.” 136 S. Ct. at 2184. Here, law

enforcement complied with state and federal constitutional requirements by obtaining

warrants for the blood draws.

       We conclude the trial courts did not err by denying Stenberg’s and Shergur’s

motions to suppress.




                                              6
No. 36268-0-III; No. 36337-6-III
City ofRichland v. Stenberg


      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.




WE CONCUR:




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Siddoway, J.                             Fearing, J.




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