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                                                       COURT OF APPEU.S WV 5
                                                        S iAii OF WAS!`_:.
                                                       20I1     18         05




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



 In re Personal Restraint Petition of                   No. 73186-6-1

 EDWARD JAMES HILLS,                                    DIVISION ONE

                      Petitioner.
                                                        UNPUBLISHED

                                                        FILED: December 18, 2017



       Cox, J. — The King County Superior Court transferred Edward Hills's CrR

7.8(c)(2) motion to this court for consideration as a personal restraint petition.

Hills fails in his burden to show that the United States Supreme Court's opinion in

Missouri v. McNeely should apply retroactively to his November 2007

convictions.1 Accordingly, we dismiss this petition.

       Hills is currently incarcerated based on the November 2007 convictions for

vehicular homicide and vehicular assault.2 While driving under the influence of

marijuana, he ran a red light and crashed into another vehicle.3 His passenger




       1 569 U.S. 141, 1338. Ct. 1552, 185 L. Ed. 2d 696(2013).
       2 State v. Hills, noted at 149 Wn. App. 1052, slip op. at 1 (2009).
       3 Id.
No. 73186-6-1/2

was killed in the collision.4 Police arrived and took Hills to Harborview Medical

Center.5

       There, a police officer had Hills's blood tested without either a warrant or

Hills's consent.6 At the time, former RCW 46.20.308(3)(2006) permitted police

to take a nonconsensual, warrantless blood draw from persons under arrest for

vehicular homicide. The test results showed that Hills was intoxicated over the

legal limit.

       These test results together with other evidence of intoxication were

admitted into evidence at the bench trial that followed.7 The trial court found Hills

guilty as charged and entered a judgment and sentence for the two convictions.5 -

Following judicial review of the trial court's decision, his case became final on

December 8, 2009.

        After that date, the United States Supreme Court decided McNeely.9 That

decision held that "the natural metabolization of alcohol in the bloodstream [did       -

not] present[] a per se exigency that justifies an exception to the Fourth

Amendment's warrant requirement for nonconsensual blood testing in all drunk-

driving cases."1° Thus, the Fourth Amendment barred warrantless blood draws,

justified on no other basis than the defendant's intoxication and arrest.11 Rather, s




        4 Id.
        5 Id.
        8 Id. at 2.
        7 Id.
        8 Id. at 3.
        9 569 U.S. 141.
        1° Id. at 144.
        11 Id. at 147-48.
                                             2
No. 73186-6-1/3

the Court explained that whether such an exigency exists depends on the totality

of circumstances in any given case.12

       In November 2014, Hills moved for relief from judgment or order pursuant

to CR 7.8(c)(2). He contended that McNeely rendered former RCW 46.20.308(3)

(2006) unconstitutional, that it applied retroactively to exclude the blood draw

results in his case, and that his convictions could not stand absent those results.

The superior court transferred the motion to this court for consideration as a

personal restraint petition.

                           RETROACTIVE APPLICATION

       The dispositive question is whether McNeely applies retroactively to this

case on collateral review. Hills argues that it does. We disagree.

       Washington law favors the finality of criminal judgments.13 Thus, the

availability of collateral relief is limited." A personal restraint petitioner must first

overcome certain statutory and rule based procedural bars. RCW 10.73.090(1)

generally prohibits a defendant from collaterally attacking his judgment and

sentence more than one year after it becomes final. A judgment and sentence is

final when the defendant has exhausted his right of direct appeal and the time for

filing a petition for certiorari has passed or a timely petition has been denied.15

       There are exceptions to the one year bar. It does not apply when "[t]here

has been a significant change in the law, whether substantive or procedural,



       12Id. at 149.
       13In re Haqhiqhi, 178 Wn.2d 435, 448, 309 P.3d 459(2013).
      14 In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 329, 823 P.2d 492
(1992).
      15 Id. at 327.

                                               3
No. 73186-6-1/4

which is material to the conviction, sentence, or other order[and]... a court. ..

determines that sufficient reasons exist to require retroactive application."16

       Here, Hills's case is indisputably final. Hills exhausted his state appellate

rights when the supreme court denied his petition for review on September 9,

2009. The time in which he might have filed for certiorari in the United States

Supreme Court passed 90 days later, on December 8, 2009.17 Thus, the

exception stated above must apply before this court may review this petition.

       McNeely presents a "significant change in the law." It rendered a previous

state statute, RCW 46.20.308(3), unconstitutional prompting the legislature to

amend the statute. No longer can police draw a person's blood without a warrant

merely because the person has been arrested for vehicular homicide.

       Further, that change is material to Hills's conviction because it alters the

procedural standard governing whether his blood could have been tested and the

results admitted into evidence at trial. The remaining question is whether

sufficient reasons exist to require retroactive application.

       In considering whether a newly articulated legal rule applies retroactively,

Washington courts apply the United States Supreme Court's analysis in Teague

v. Lane." We do so here.

       Under this analysis, a new rule applies to any case upon direct review.19

In determining whether it applies on collateral review, we ask whether the case is



       16 RCW 10.73.100(6).
       17 U.S. SUPREME COURT RULE 13.1, 13.3.
       18 Haghighi, 178 Wn.2d at 441 (citing Teague v. Lane, 489 U.S. 288, 109
S. Ct. 1060, 103 L. Ed. 2d 334 (1989)).
       19 Id. at 442.

                                              4
No. 73186-6-1/5

final and the rule is new. If the rule is new, we ask whether it fits within either of

two exceptions.20

       First, we ask whether the case was final when the rule was announced.21

If the case was not final, then the rule will generally apply on direct review.22 If

the case was final, retroactive application will be more limited. As we previously

noted, Hills's case was final.

       Second, we ask whether the relevant rule is "new."23 A "new rule" is one

that "breaks new ground or imposes a new obligation on the States or. . . was

not dictated by precedent existing at the time the defendant's conviction became

final.'"24 Thus, even a decision that merely "extends the reasoning of... prior

cases" can be new where state courts had disagreed in applying those prior

federal cases.25 A rule, about which reasonable jurists could have disagreed

before its announcement, is new.26

       The rule in McNeely is new. It newly obligates state police officers, absent

valid consent, to either obtain a warrant or demonstrate that the totality of the

circumstances present an exigency justifying a warrantless blood draw. No

longer does mere intoxication and arrest justify a warrantless blood draw.




      20 Beard v. Banks, 542 U.S. 406,411, 124 S. Ct. 2504, 159 L. Ed. 2d 494
(2004).
      21 Id.

      22 Haqhighi, 178 Wn.2d at 443.
      23 Beard, 542 U.S. at 411.
      24 Teague, 489 U.S. at 301.
      25 Graham v. Collins, 506 U.S. 461, 467, 113 S. Ct. 892, 122 L. Ed. 2d 260
(1993)(quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct. 1257, 108 L. Ed.
2d 415 (1990)).
      26 Haghiqhi, 178 Wn.2d at 443.

                                              5
No. 73186-6-1/6

       Although McNeely drew in part from the Supreme Court's precedent in

Schmerber v. California,27 that earlier case did not dictate the later decision. This

is evidenced by McNeelv's recognition that a split of authority existed on whether.

the dissipation of alcohol presented a per se exigency justifying warrantless

blood draws.28 Prior to McNeely, several states, including Washington, had

permitted such blood draws in impaired driving cases.29 McNeely changed this.

       Third, if the rule is new, then we must ask whether it falls within either of

two exceptions.

       The first exception to this principle encompasses substantive rules. These

rules place certain private primary conduct beyond the State's power to punish or

they mprohibitO a certain category of punishment for a class of defendants

because of their status or offense.'"30

       The second exception concerns procedural rules. Such rules "raise the

possibility that someone convicted with use of the invalidated procedure might

have been acquitted otherwise."31 Only a small set of "watershed rules of

criminal procedure" apply retroactively.32 These few rules are those "implicit in




       27 384  U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908(1966)(cited in
McNeely, 569 U.S. at 150-51).
       28 569 U.S. at 147.
       295     State v. Judge, 100 Wn.2d 706, 712, 675 P.2d 219(1984).
       39 Montgomery v. Louisiana, 136 S. Ct. 718, 728, 193 L. Ed. 2d 599(2016)
(quoting Penry v. Lvnaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L. Ed. 2d
256 (1989)).
       31 Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d
442(2004).
       32 Saffle, 494 U.S. at 495 (quoting Teague, 489 U.S. at 311 (plurality
opinion)).
                                             6
No. 73186-6-1/7

the concept of ordered liberty."33 Such a rule "must be one `without which the

likelihood of an accurate conviction is seriously diminished."34 It must further

"alter our understanding of the bedrock procedural elements' essential to the

fairness of a proceeding."35 The Supreme Court has only found one rule, that         .

pronounced in Gideon v. Wainwright,36 sufficient to satisfy this exception, and

has used this example to illustrate the exception's extremely narrow scope.37

       The McNeely rule is not a substantive rule within the first exception. It

neither alters the elements of the crime for which Hills was convicted nor places

him beyond the court's sentencing authority. Instead, it modifies the procedures

law enforcement must follow in taking blood draws, based upon the Fourth

Amendment.

       As a procedural rule, the McNeely rule will only apply retroactively if it

seriously improves the accuracy of criminal proceedings and alters the bedrock

of procedural fairness. It does neither.

       First, it does not improve accuracy because it does not change the

evidence available at trial. Police may still obtain a warrantless blood draw if the -

totality of circumstances presents an exigency. If the circumstances do not,

police may apply for a warrant at the scene of the crime or shortly thereafter. So

long as probable cause exists, the police may obtain a warrant and quickly




       33 St. Pierre, 118 Wn.2d
                              at 326.
     34 Schriro, 542 U.S. at 352 (quoting Teaque_, 489 U.S. at 313).
     35 State v. Evans, 154 Wn.2d 438, 445, 114 P.3d 627(2005)(quoting
Sawyer v. Smith, 497 U.S. 227, 242, 110 S. Ct. 2822, 111 L. Ed. 2d 193(1990)).
     36 372 U.S. 335, 83 S. Ct. 792,9 L. Ed. 2d 799(1963).
     37 Beard, 542 U.S. at 417.

                                              7
No. 73186-6-1/8

conduct a blood draw. Tellingly, the McNeely court never stated that its rule

would improve accuracy.

       Second, the scope of this new rule's applicability is extremely narrow,

applying only to offenses that include an impaired driving element. Thus, this

specific rule does not affect the very bedrock of criminal procedure as did the rule

in Gideon.

       Accordingly, we conclude that the rule announced in McNeely does not

apply retroactively to Hills's case.

       Hills contends that this analysis is inapplicable because no retroactive

analysis is necessary. Rather, he argues that McNeely simply clarified what

former RCW 46.20.308(3)(2006) had always meant. We reject this contention.

       Hills relies on In re Personal Restraint of Johnson,38 for this proposition.

But that case does not assist him.

       There, John Johnson was convicted of murder.39 The sentencing court

calculated his offender score at 2, based on two prior convictions.40 After the first

of those prior convictions, he had been placed on probation.41 After the second,

his probation was revoked and he served both sentences concurrently.42 The

sentencing court in his murder case had counted each prior conviction

separately.43




       38 131 Wn.2d 558, 933 P.2d 1019 (1997).
       39 Id. at 561.
       4° Id.
       41 Id.
       42 Id. at 561-62.
       43 Id. at 562.

                                             8
No. 73186-6-1/9

       Several years later, the state supreme court issued a decision holding that

for offenses committed before a certain date, a revoked probation would merge

with a conviction served concurrently." Thus, Johnson's offender score would

have been 1 under this new rule.45 He filed a PRP on this basis.46

       The supreme court granted his petition, explaining that "when Johnson

was sentenced, the law with respect to calculation of his offender score required

his score to be a 1."47 It reached this conclusion by applying the later case

retroactively, explaining that "[o]nce the Court has determined the meaning of a

statute, that is what the statute has meant since its enactment."48

       Johnson concerned the retroactive application of a statutory interpretation.

When the supreme court interprets a statute, that statute is considered to have

always carried that interpretation."

       But that is not the issue here. Rather, this case turns on whether a federal

decision applies retroactively to constitutionally invalidate a former state statute.

The meaning of a statute as opposed to its constitutionality under the federal

constitution are not the same.

       Because the McNeely rule does not apply retroactively, Hills cannot

overcome the one year bar in RCW 10.73.090(1). Thus, his personal restraint

petition is untimely.




       44 Id. at 562-63.
       45 Id. at 563.
       46 Id.
       47 Id. at 568.
       48 Id.
       49 Id.

                                              9
No. 73186-6-1/10

      Because the question of retroactivity is dispositive, we need not reach the

other arguments of the parties.

      We dismiss this personal restraint petition.




WE CONCUR:




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