                                                              FILED
                                                         FEBRUARY 19, 2019
                                                       In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III




  COURT OF APPEALS, DIVISION III, STATE OF
              WASHINGTON
STATE OF WASHINGTON,                            )   No. 35273-1-111
                                                )
                 Respondent,                    )
                                                )
          v.                                    )   ORDER AMENDING
                                                )   OPINION
THOMAS J. NELSON,                               )
                                                )
                 Petitioner.                    )


      THE COURT hereby amends the dissenting opinion of Judge Robert Lawrence-

Berrey that was filed on February 14, 2019.

      The following sentence shall be added at the end of the last sentence on page 3,

which ends "not supported by the justifications underlying the carefully drawn

exceptions:"

      Absent evidence preservation concerns, a warrant should be required for
      blood and breath searches for alcohol.

      FOR THE COURT:
                                                                          FILED
                                                                     FEBRUARY 14, 2019
                                                                  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

STATE OF WASHINGTON,                           )
                                               )         No. 35273-1-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
THOMAS J. NELSON,                              )         PUBLISHED OPINION
                                               )
                     Petitioner.               )

       KORSMO, J. — This court granted discretionary review of Thomas Nelson’s

driving while under the influence (DUI) conviction in order to consider his challenge to

the implied consent statute. Concluding that this claim is governed by the decision in

State v. Baird, 187 Wn.2d 210, 386 P.3d 239 (2016) (plurality opinion), and that a breath

sample can be obtained incident to the arrest of an impaired driver, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       This matter has a lengthy history, due in part to the fact that three trials were

required in the district court. It began with a traffic stop for speeding in Douglas County.

Trooper 1 Mark Ward stopped the vehicle being driven by Mr. Nelson for speeding across

the U.S. Highway 2 bridge from Chelan County to Douglas County.



       1
      Ward joined the Wenatchee Police Department the following year and was a
member of that department during the trial of this case.
No. 35273-1-III
State v. Nelson


       Noticing an odor of alcohol, the trooper inquired about Mr. Nelson’s use of

alcohol. Admitting that he had consumed two 16-ounce cans of beer while golfing, Mr.

Nelson agreed to perform physical sobriety tests. After performing the tests, the trooper

arrested Mr. Nelson for DUI. He was transported to the jail and given the implied

consent warnings. Mr. Nelson consented to provide breath samples. They measured .078

and .079.

       Charges were filed in the Douglas County District Court. Mr. Nelson moved to

suppress the breath test results on several grounds, including an argument that it was a

warrantless search prohibited by Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552,

185 L. Ed. 2d 696 (2013). The district court denied the motion, determining that the

breath test was not the product of an unlawful search. Ultimately, a jury convicted Mr.

Nelson of DUI and first degree negligent driving. On appeal, the superior court affirmed

the conviction. A commissioner of this court granted discretionary review to consider

Mr. Nelson’s argument that the breath test constituted an improper warrantless search in

violation of art. I, § 7 of the Washington Constitution.

       A panel of this court heard oral argument of the case.

                                        ANALYSIS

       Mr. Nelson contends that the warrantless search of his breath was prohibited by

art. I, § 7 of our state’s constitution. His position, which necessarily would invalidate

large sections of our implied consent law, is inconsistent with our search incident to

                                              2
No. 35273-1-III
State v. Nelson


arrest jurisprudence, and is inconsistent with the result in Baird. We discuss, in order,

our implied consent law and the recent federal cases involving implied consent statutes,

Washington’s treatment of the search incident to arrest doctrine, and Baird, before

applying those discussions to Mr. Nelson’s case.

       Implied Consent

       Washington’s implied consent law, codified at RCW 46.20.308, was adopted by

the people of this state when they approved Initiative 242 during the 1968 election. State

v. Moore, 79 Wn.2d 51, 52, 483 P.2d 630 (1971). The acknowledged purpose of implied

consent legislation is to address the long-standing problem of drunk driving. Id. at 53.

Although the statute has been modified several times over the last half century, the

essence of the provision at the heart of this case reflects the trade-off approved by the

voters in 1968. That trade-off is related in the opening sentence of the statute:

       Any person who operates a motor vehicle within this state is deemed to
       have given consent, . . . 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, . . . the arresting officer has reasonable grounds to
       believe the person had been driving . . . while under the influence of
       intoxicating liquor.

RCW 46.20.308(1).

       The implied consent recognized in this statute is not final. Prior to obtaining a

breath sample, the officer must advise the driver that he or she still has the right to refuse




                                               3
No. 35273-1-III
State v. Nelson


to consent to the test, but that a license revocation and use of that refusal at trial are

among the consequences that follow if the driver declines the test. RCW 46.20.308(2).

       The constitutionality of this statute was at issue in Moore. Our court concluded

that the statute did not violate either the Fifth Amendment to the United States

Constitution protection against self-incrimination or the protection of art. I, § 9 from

being compelled to give evidence against oneself. 79 Wn.2d at 57. The court also

rejected a challenge to the validity of the consent provision, finding it to be within the

police power of the state to compel the breath sample. Id. at 57-58.

       Over the years, the court has addressed other constitutional challenges to the

implied consent statute. One issue addressed in State v. Curran, 116 Wn.2d 174, 804

P.2d 558 (1991), abrogated in part on other grounds by State v. Berlin, 133 Wn.2d 541,

947 P.2d 700 (1997), concerned the validity under art. I, § 72 of a compelled blood

alcohol test under former RCW 46.20.308(3) for one suspected of vehicular homicide.

Id. at 179, 183. The court unanimously3 ruled that while the blood draw was a search

under both the Fourth Amendment and art. I, § 7, it also was reasonable and

constitutional under both provisions. Id. at 183-85. The court had reached the same



       2
         “No person shall be disturbed in his private affairs, or his home invaded, without
authority of law.”
       3
         Justice Utter, joined by Justice Smith, concluded that art. I, § 7 permitted the
blood draw in cases of homicide as long as there was statutory authorization. Curran,
116 Wn.2d at 189 (Utter, J., concurring).

                                               4
No. 35273-1-III
State v. Nelson


conclusion in an earlier vehicular homicide case, State v. Judge, 100 Wn.2d 706, 711-12,

675 P.2d 219 (1984) (taking blood was a reasonable search and seizure under both

constitutions).

       Similarly, the United States Supreme Court on occasion has had opportunity to

consider challenges to various aspects of state implied consent laws. E.g., California v.

Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984) (due process did not

require preservation of breath sample tested by state); South Dakota v. Neville, 459 U.S.

553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983) (State could use evidence of refusal to

consent to blood alcohol test at trial without offending privilege against self-

incrimination); Mackey v. Montrym, 443 U.S. 1, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979)

(due process did not require hearing prior to revocation of driver’s license for refusal to

consent to testing).

       That Court also has had the opportunity to consider blood alcohol testing cases

that arose outside of a state’s implied consent law. In Schmerber v. California, 384 U.S.

757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), the Court faced a situation where officers at

a hospital had obtained a blood sample from a suspected drunk driver who had refused to

consent to the blood draw. 384 U.S. at 758-59. After concluding that the Fifth

Amendment did not apply, the Court turned to the Fourth Amendment. Id. at 760-66.

Recognizing that a search warrant “ordinarily” would be required, the court nonetheless

upheld the search due to the dissipation of alcohol and the delay caused by taking the

                                              5
No. 35273-1-III
State v. Nelson


defendant to the hospital. Id. at 770-72. In those circumstances, the acquisition of the

blood alcohol “was an appropriate incident to petitioner’s arrest.” Id. at 771.

       Nearly a half century later, the Court revisited Schmerber in Missouri v. McNeely,

569 U.S. 141. As in the earlier case, the suspected drunk driver refused to consent to a

test and blood was thereafter taken from him at a hospital. Id. at 145-46. After the lower

courts had suppressed the evidence, the United States Supreme Court considered

Missouri’s argument that Schmerber authorized a per se rule permitting the warrantless

taking of blood in all drunk driving cases. Id. at 146-48. Rejecting the per se rule, the

Court stressed that the exigent circumstances exception was always dependent on the

totality of the circumstances. Id. at 156. In its analysis, the Court noted that a search

incident to arrest was a categorical exception to the warrant requirement and did “not

require an assessment of whether the policy justifications underlying the exception,

which may include exigency-based considerations, are implicated in a particular case.”

Id. at 150 n.3. Because there was no exigency established, the Court affirmed the

suppression ruling. Id. at 165.

       The Court soon thereafter had the opportunity to look at the intersection of state

implied consent laws and the Fourth Amendment in Birchfield v. North Dakota, ___ U.S.

___, 136 S. Ct. 2160, 195 L. Ed 2d 560 (2016). At issue in those consolidated cases were

state implied consent laws that purported to offer a choice to refuse testing, but then

treated a refusal as a crime. 195 L. Ed. 2d at 571-74. One petitioner was convicted of a

                                              6
No. 35273-1-III
State v. Nelson


crime for refusing to take a blood test, one was convicted for refusing to take a breath

test, and the third consented to a blood test, but lost his license as a consequence of the

test results. Id. Noting that exigent circumstances were not at issue in the consolidated

cases, the Court turned to the issues presented: (1) the application of the search incident

to arrest doctrine to the breath and blood tests, and (2) the effect of criminalizing a refusal

to consent on the informed consent decision. Id. at 574.

       The Court stated that it had been recognized long before the constitution was

adopted that officers could lawfully search the person they had arrested. Id. at 576-78.

The Court stressed that the search incident to arrest exception was categorical, its prior

decision in Riley v. California, 573 U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014),

notwithstanding. Id. at 578, 586. When confronted with the scope of a search incident to

arrest for evidence or items not existent at the time the constitution was adopted, the

Court applied a two-part test created in Riley that looked at the degree of intrusion on an

individual’s privacy and the governmental interest. Id. at 578-79.

       Applying the Riley test, the Birchfield Court concluded that a warrantless breath

test was a proper search incident to an arrest because it did not implicate significant

privacy concerns. Id. at 579-80, 587. With respect to blood testing, however, the bodily

intrusion of seizing blood was not within the scope of a search incident to arrest. Id. at

580, 587. Blood testing was significantly more invasive than breath testing. Id. at 580.



                                              7
No. 35273-1-III
State v. Nelson


       The Court then briefly turned to the impact of implied consent laws on the cases.

Noting that it generally had approved implied consent statutes that imposed noncriminal

penalties for refusal, the Court concluded that its decision did not cast doubt on such

legislation. Id. at 588-89. However, imposition of criminal penalties for refusing to

consent to a search presented a new matter entirely: “There must be a limit to the

consequences to which motorists may be deemed to have consented by virtue of a

decision to drive on public roads.” Id. at 589. The Court then concluded that “motorists

cannot be deemed to have consented to submit to a blood test on pain of committing a

criminal offense.” Id.

       The Court then turned to the disposition of the three cases before it. The Court

overturned the conviction of the driver who was convicted of a crime for refusing a blood

draw, but upheld the conviction of the driver who had refused a breath test. Id. The

Court remanded the case of the driver whose license was suspended after he consented to

a blood draw on pain of criminal prosecution. In that instance, the lower court was

required to determine whether the driver’s consent was valid in light of the improper

advice given to him. Id. at 589-90.

       In summary, the Court concluded that states could compel warrantless breath tests

under their implied consent laws, but could not compel warrantless blood tests. States

were free to impose criminal penalties for refusing a breath test, but not for refusing to

consent to a blood draw. Although administrative and evidentiary sanctions could be

                                              8
No. 35273-1-III
State v. Nelson


imposed for refusing to consent to either blood or breath testing, those sanctions needed

to be based on correct legal advice. State implied consent laws concerning breath testing

remain valid.

       Search Incident to Arrest in Washington

       Mr. Nelson contends that Washington treats searches incident to arrest differently

than the United States Supreme Court and would not consider breath testing within the

scope of that search. His argument requires us to consider Washington’s treatment of the

search incident to arrest doctrine vis-à-vis the federal standard.

       Modern federal analysis of the search incident to arrest doctrine traces to United

States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). There police

had arrested a man and found a cigarette package containing heroin in his coat pocket.

414 U.S. at 222-23. The Court concluded that the search was proper incident to the

arrest, recognizing that while the scope of the search of the area around an arrestee had

varied over the years, the Court had always permitted searches of the arrestee’s person.

Id. at 224-26. The Court concluded that two purposes undergirded the search: the need

for officer safety and the need to preserve evidence. Id. at 234-35. The authority to

search the person was categorical and did not need to be justified by either of the two

purposes supporting the search incident doctrine. Id. at 235. In turn, area searches were

governed by the rule of Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d



                                              9
No. 35273-1-III
State v. Nelson


685 (1969). The question presented there was whether the area was within the arrestee’s

“‘immediate control.’” 395 U.S. at 763.

       Washington likewise has recognized the same two purposes, both before and after

Robinson, as the justification for a search incident to arrest under the Washington

Constitution. State v. Brock, 184 Wn.2d 148, 154, 355 P.3d 1118 (2015); State v.

Hughlett, 124 Wash. 366, 370, 214 P. 841 (1923) (“It has always been held that a peace

officer, when he makes a lawful arrest, may lawfully, without a search warrant, search the

person arrested.”), overruled on other grounds by State v. Ringer, 100 Wn.2d 686, 699,

674 P.2d 1240 (1983). In turn, Washington recognizes the same scope for the two

possible searches incident to arrest:

       A warrantless search of the arrestee’s person is considered a reasonable
       search as part of the arrest of the person. Such a search presumes
       exigencies and is justified as part of the arrest; therefore it is not necessary
       to determine whether there are officer safety or evidence preservation
       concerns in that particular situation. In contrast, a warrantless search of the
       arrestee’s surroundings is allowed only if the area is within an arrestee’s
       “immediate control.” Such searches are justified by concerns of officer
       safety or the preservation of evidence and are limited to those areas within
       reaching distance at the time of the search.

State v. MacDicken, 179 Wn.2d 936, 940-41, 319 P.3d 31 (2014) (internal citations

omitted).

       The theoretical justifications for a search incident to arrest are the same under both

state and federal constitutions. Similarly, the areas that can be searched—the person of

the arrestee and the area within his reach—are the same.

                                              10
No. 35273-1-III
State v. Nelson


       State v. Baird

       At issue in the two consolidated cases in Baird was whether evidence of refusal to

submit to breath testing was admissible after McNeely.4 The drivers argued that the

search was unconstitutional and, therefore, they had a constitutional right to refuse

consent and the State could not use that choice against them. 187 Wn.2d at 212-13. Our

court issued three opinions: a lead opinion by Justice Madsen expressing the views of

four justices, a concurring opinion by Justice González that was joined by Justice Yu, and

a dissent by Justice Gordon McCloud that expressed the view of three justices.

       The lead opinion concluded that (1) the implied consent statute did not authorize a

warrantless search, (2) there was no constitutional right to refuse a breath test because it

was a valid search incident to arrest, and (3) evidence of refusal to consent was

admissible as evidence of guilt under the implied consent statute. Id. at 214. With

respect to the constitutionality of the breath test search, the drivers argued that the

searches were unconstitutional under both the Fourth Amendment and art. I, § 7. Id. at

221-22. The lead opinion promptly answered that argument by turning to Birchfield:

“[T]ests conducted subsequent to an arrest for DUI fall under the search incident to arrest

exception to the warrant requirement.” Id.




       4
         Birchfield was released a year after argument in Baird and six months prior to
the release of the Baird opinion.

                                              11
No. 35273-1-III
State v. Nelson


       Justice González wrote separately to emphasize that a breath test after an arrest for

DUI “is a limited and reasonable search” and that refusal to consent “has no

constitutional implications” under the Fourth Amendment or art. I, § 7. Id. at 229

(González, J., dissenting). He also agreed that the search incident to arrest doctrine was

categorical and applied to this case. Id. at 231 n.10. He questioned whether there was

any reasonable expectation of privacy in a driver’s breath subsequent to an arrest for

DUI. Id. at 231. Turning then to the “authority of law” component of art. I, § 7, he

focused on the lengthy history of the implied consent law in this state and the minimal

intrusiveness of a breath test to conclude that a DUI driver’s private affairs were not

disturbed by the testing. Id. at 231-32.

       The dissent criticized the majority for applying the search incident to arrest

analysis of Birchfield5 under our constitution, contending that doctrine in Washington had

never “applied it to bodily contents.” Id. at 234-35 (Gordon McCloud, J., dissenting).

The dissent also took issue with the lead opinion’s view that the implied consent law

acted to waive challenges to the admissibility of refusal evidence. Id. at 237.

       In summary, a majority of the court concluded that a breath test conducted under

our implied consent law is a valid search incident to arrest under our state constitution.


       5
         Our dissenting colleague misreads the Baird dissent. The dissenters challenged
the lead opinion’s analysis under art. I, § 7. They did not claim that the lead opinion
failed to address the art. I, § 7 argument. See 187 Wn.2d at 234 (Gordon McCloud, J.,
dissenting); cf., 187 Wn.2d at 222 (lead opinion).

                                             12
No. 35273-1-III
State v. Nelson


       Application to Mr. Nelson’s Case

       With apologies for that lengthy introduction, we can finally turn to the claim

presented by Mr. Nelson. Criticizing6 the failure of the Baird Court to conduct an

analysis under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), he ignores the rule

of that case while conducting his own Gunwall analysis. He contends that the search

incident to arrest doctrine7 is not applicable to “non-physical data such as alcohol

concentration.” Br. of Appellant at 14.

       Unlike Mr. Nelson, this court does not have the luxury of ignoring Baird. E.g.,

State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227 (1984) (lower courts are bound by

ruling of Washington Supreme Court). While the outcome of Baird ultimately is

dispositive of this case, we nevertheless have to consider his Gunwall argument in order

to reach that conclusion.

       Under art. I, § 7, the consideration is whether a defendant’s “private affairs” have

been invaded without authority of law. State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d

151 (1984). That term “focuses on those privacy interests which citizens of this state




       6
          Br. of Appellant at 12.
       7
          Mr. Nelson also argues that the purposes of the search incident to arrest doctrine
do not support taking breath alcohol samples. We disagree. Although the dissipation of
alcohol in the blood stream does not by itself constitute an exigency, the dissipation still
is a relevant consideration in rapidly obtaining a sample to preserve the evidence. A
search conducted incident to the arrest provides the most timely evidence of DUI.

                                             13
No. 35273-1-III
State v. Nelson


have held, and should be entitled to hold, safe from governmental trespass absent a

warrant.” Id. at 511.

       Gunwall set forth six nonexclusive criteria to be applied when analyzing whether

to accord a provision of the state constitution a different reading than that given to

parallel provisions of the federal constitution. 106 Wn.2d at 61. Those criteria are:

              1. The textual language of the state constitution.
              2. Significant differences in the texts of parallel provisions of the
       federal and state constitutions.
              3. State constitutional and common law history.
              4. Preexisting state law.
              5. Differences in structure between the federal and state
       constitutions.
              6. Matters of particular state interest or local concern.

Id. at 61-62. Because criteria 1, 2, 3, and 5 were analyzed in Gunwall with respect to art.

I, § 7 and the Fourth Amendment, they need not be addressed on every occasion when

comparing those two provisions; only criteria 4 and 6 need to be analyzed. State v.

Hudson, 124 Wn.2d 107, 120, 874 P.2d 160 (1994); State v. Boland, 115 Wn.2d 571,

576, 800 P.2d 1112 (1990). In essence, the four fixed Gunwall factors address whether a

provision can be interpreted differently, while the other two ask whether it should be so

interpreted in the context of the particular case.

       Here, Mr. Nelson argues that pre-existing law favors diverging from Birchfield,

focusing on cases where Washington has found that the privacy protections of art. I, § 7




                                              14
No. 35273-1-III
State v. Nelson


prohibit interference with bodily functions. E.g., Blomstrom v. Tripp, 189 Wn.2d 379,

402 P.3d 831 (2017) (urinalysis required from DUI defendants released pending trial

unconstitutional without statutory authorization); York v. Wahkiakum Sch. Dist. No. 200,

163 Wn.2d 297, 178 P.3d 995 (2008) (school policy requiring mandatory urinalysis

testing of student athletes struck down). He also argues that cases from other states

should be considered in determining whether to follow Birchfield. Although cases from

other states construing constitutional provisions similar to ours could be informative, the

mere fact that some other states disagree with Birchfield is not “pre-existing law” under

Gunwall that provides much aid to construing the scope of the Washington Constitution.

       We believe that Mr. Nelson’s focus on this factor is inaccurate. At issue is the

search incident to arrest exception to the warrant requirement. Our case law in this area

does not favor Mr. Nelson’s position. As detailed previously, the search incident to arrest

doctrine under art. I, § 7 not only serves the same purposes (evidence preservation,

officer safety)8 as the Fourth Amendment, but our analysis9 of a search incident to arrest

has been the same, particularly in the area of impaired drivers arrested and tested under

the implied consent statute. Thus, both Judge and Curran recognized warrantless blood




       8
           Brock, 184 Wn.2d at 154.
       9
           MacDicken, 179 Wn.2d at 940-41.

                                             15
No. 35273-1-III
State v. Nelson


draws as lawful searches under art. I, § 7 prior to the United States Supreme Court

revising its view of the requirements of the Fourth Amendment in McNeely.10

       After the United States Supreme Court reconsidered its Fourth Amendment

treatment of state implied consent laws in Birchfield, it reaffirmed that breath testing did

not implicate the federal constitution despite McNeely. When confronted with the

Birchfield issue in Baird, a majority of our court determined that warrantless breath

testing of suspected impaired drivers was valid under art. I, § 7. Regardless of what Mr.

Nelson may think of the adequacy of Baird’s analysis, the result is clearly the most

relevant example of pre-existing state law on his issue.

       None of the most relevant case authority supports Mr. Nelson. He relies

principally on the fact that Washington cases do not permit a search of a locked11

container found in the course of an arrest, citing to State v. VanNess, 186 Wn. App. 148,

162, 344 P.3d 713 (2015) (locked box in backpack was not subject to search incident to

arrest). That case, in addition to being unique, is clearly distinguishable, even if we

assume that a backpack in one’s possession at the time of arrest is the same as an item on



       10
          After McNeely, the legislature promptly amended the implied consent statute to
ensure that blood could be obtained from an impaired driver by means of a search warrant.
See LAWS OF 2013, 2d Spec. Sess., ch. 35, § 36.
       11
          Unlocked containers found on an arrestee’s person are subject to search. E.g.,
State v. White, 44 Wn. App. 276, 278, 722 P.2d 118 (1986) (cosmetics case was subject
to search incident to arrest); State v. Garcia, 35 Wn. App. 174, 176, 665 P.2d 1381
(1983) (wallet was subject to search incident to arrest).

                                             16
No. 35273-1-III
State v. Nelson


the person. Borrowing from our case law on inventory searches, the VanNess court ruled

that locked containers found near an arrestee could not be searched without a warrant,

relying on two automobile search cases involving locked containers that had been

analyzed under the Chimel area analysis. Id. at 160-61. We do not believe that police

can do indirectly what they cannot do directly. Locked containers are not searchable in

the course of an inventory search, and that fact should not change just because the

container was found in close proximity to an arrestee. VanNess is only marginally

helpful to an analysis of the fourth Gunwall factor in this context.12

       Even if we consider searches incident to arrest outside of the impaired driver

context, as appellant does, pre-existing law is not particularly helpful to Mr. Nelson. One

example is State v. Cheatam, 150 Wn.2d 626, 81 P.3d 830 (2003). There police had

arrested the defendant and placed his clothing, including a pair of shoes, in storage at the

jail. Id. at 642. The court concluded that the defendant had no reasonable expectation of

privacy in property that he had exposed to the public (and police) view. Id. In a similar

vein, although not a search incident to arrest case, is State v. Surge, 160 Wn.2d 65, 156

P.3d 208 (2007). There the court upheld, also against an art. I, § 7 challenge, a statute

that authorized the taking of DNA samples from those convicted of felonies. Id. at 71-74


       12
          VanNess also read Riley v. California as rejecting a categorical approach to
searches incident to arrest. 186 Wn. App. at 156-60. Two years later, the Birchfield
court rejected that reading of Riley and reaffirmed the categorical nature of a search
incident to arrest. Birchfield, 195 L. Ed. 2d at 578, 586.

                                             17
No. 35273-1-III
State v. Nelson


(lead opinion), 83 (Owens, J. concurring). In contrast to Surge, a DNA swab of a person

awaiting trial can only be ordered by a judge who determines that probable cause exists

to take the sample. State v. Garcia-Salgado, 170 Wn.2d 176, 240 P.3d 153 (2010).

There the court distinguished Judge and Curran due to the fact that DNA, unlike alcohol,

does not dissipate and, therefore, can await judicial authorization. Id. at 185. The court

also concluded that the warrant requirement can be satisfied by a court order. Id. at 186.

       Given the extensive number of cases litigated under art. I, § 7, undoubtedly other

case examples could be discussed. However, we believe we have identified, and

discussed, the most relevant authorities. In this context, the fourth Gunwall factor does

not favor finding a greater privacy right in breath alcohol testing. If anything, our history

strongly suggests that arrestees have a diminished expectation of privacy in their breath

alcohol levels.

       The sixth Gunwall factor is whether the issue is of particular state interest or local

concern. Gunwall, 106 Wn.2d at 62. How one views this factor depends in large part on

how the issue is framed. If the question is defined at a high level of generality, such as

one of personal privacy or enforcement of state law, the factor will always favor an

independent interpretation. However, our court does not consider this a fixed, static

factor, so we believe that the true question is focused on the specific privacy right

claimed—whether a driver arrested on the public highways has a privacy interest in his

breath alcohol. Although there is strong national interest in the problem of impaired

                                             18
No. 35273-1-III
State v. Nelson


driving, and the national highway system represents a significant portion of the public

roadways, we still consider the issue to primarily be one of local concern. Thus, this

Gunwall factor somewhat favors Mr. Nelson’s argument for greater privacy than that

afforded by the Fourth Amendment.

       Nonetheless, in light of the long history of both our implied consent statute and of

our case law rejecting arguments for giving art. I, § 7 an expanded interpretation in this

context, we decline Mr. Nelson’s argument to ignore Baird and reach a different result

than that court did. Washington does not have a history of recognizing expanded privacy

protection for an arrested driver’s blood or breath alcohol level. We therefore conclude

that the implied consent law provides authority of law to conduct a warrantless breath

test13 as a search incident to arrest and, thus, Mr. Nelson’s consent to provide breath

samples was valid.

       We are not unmindful of the consequences of accepting Mr. Nelson’s argument

for rejecting application of the search incident to arrest doctrine in this context.14


       13
          According to the 2016 statistics of the Federal Bureau of Investigation, there
were 23,209 arrests in this state for DUI. See https://ucr.fbi.gov/crime-in-the-u.s/2016
/crime-in-the-u.s.-2016/topic-pages/tables/table-22 (last visited Feb. 7, 2019). It would
be a daunting problem to provide judges to cover 23,000 additional search warrants
across the state.
       14
          At oral argument, Mr. Nelson’s attorney agreed that fingerprinting an arrestee
could not be justified under either rationale of the search incident to arrest doctrine. See
oral argument, December 5, 2018, No. 352731, at 10:49:04: http://www.courts.wa.gov
/appellate_trial_courts/appellateDockets/index.cfm?fa=appellateDockets.showDateList&
courtId=a03.

                                              19
No. 35273-1-III
State v. Nelson


Requiring a warrant for each breath test would render the current implied consent

warnings ofRCW 46.20.308(2) inaccurate, leading to the suppression oftest results in all

pending cases. E.g., State v. Whitman County Dist. Court, 105 Wn.2d 278, 286-87, 714

P.2d 1183 (1986). Very little ofthe implied consent law would remain valid-and even

less ofit would be useful-and it is difficult to conceive ofhow a revised law could be

crafted ifthere is indeed a state constitutional right to refuse the search. It also is

questionable how well a search warrant could compel a valid breath sample ifthere were

no valid consequences for refusing to comply. As a practical matter, blood would

probably be drawn in every instance where a search warrant was obtained. These

concerns do not factor into our analysis, but they do provide a further caution against a

radical reversal of50 years ofprecedent and practice.

       The judgment ofthe district court is affirmed.




I CONCUR:




                                              20
                                      No. 35273-1-III

       LAWRENCE-BERREY, C.J. (dissenting) — The majority does a masterful job setting

forth Washington State and federal decisions discussing implied consent laws and the

search incident to arrest exception to the warrant requirement. I dissent because I

disagree with the majority on two points.

       First, the majority misconstrues the lead opinion in State v. Baird, 187 Wn.2d 210,

386 P.3d 239 (2016) (plurality opinion). The majority construes the lead opinion as

answering no to whether article I, section 7 of the Washington Constitution prohibits a

warrantless breath test. Similar to the Baird dissent, I construe the lead opinion as not

answering the state constitutional question:

              It is surprising that the lead opinion begins and ends its answer to
       this question with the Fourth Amendment [to the United States
       Constitution]. Our court has consistently recognized that “[a]rticle I,
       section 7 is more protective of individual privacy than the Fourth
       Amendment, and we turn to it first when both provisions are at issue.” The
       lead opinion doesn’t even turn to article I, section 7 second.
              . . . I think we should turn to article I, section 7 first. . . .

Baird, 187 Wn.2d at 234-35 (second alteration in original) (citations omitted) (Gordon

McCloud, J., dissenting). The lead opinion did not even respond to or deny the dissent’s

point that it failed to decide the state constitutional question. Because the lead opinion in

Baird did not decide the state constitutional question, our resolution of that issue is not

controlled by Baird.
No. 35273-1-III
State v. Nelson—dissent


       Second, the majority misconstrues State v. MacDicken, 179 Wn.2d 936, 310 P.3d

31 (2014), which cited State v. Byrd, 178 Wn.2d 611, 310 P.3d 793 (2013). Those cases

do say that a search of an arrestee’s person and personal effects “always implicate[s]

Chimel[1] concerns for officer safety and evidence preservation.” Byrd, 178 Wn.2d at 618

(search of purse on lap of the defendant); accord MacDicken, 179 Wn.2d at 940-41

(search of bag carried by the defendant). The statement, although true for purses and

bags on a defendant, is not true for blood and breath. It is hard to imagine how alcohol in

the blood or breath of a defendant presents an officer safety concern. Yet, it is possible to

imagine how the natural dissipation of alcohol in the blood or breath raises evidence

preservation concerns. In those instances where the natural dissipation of alcohol in the

blood or breath precludes obtaining a warrant, the exigent circumstances exception to the

warrant requirement applies. See Baird, 187 Wn.2d at 220-21 (natural dissipation of

alcohol in blood or breath may support finding of exigent circumstances, but “exigency”

must be determined on case-by-case basis). But as noted by Justice Sotomayor in her

dissent in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 2192-93, 195 L.

Ed. 2d 560 (2016), the ease of quickly obtaining telephonic warrants renders the natural

dissipation of alcohol in one’s blood or breath an uncommon concern.

       These observations lead me to ask: Just how jealously do Washington courts guard

the exceptions to the warrant requirement for searches? In most cases involving article I,

       1
        Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685
(1969), overruled in part by Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed.
2d 485 (2009).

                                             2
No. 35273-1-III
State v. Nelson—dissent


section 7, we reiterate: “Under article I, section 7, a warrantless search is per se

unreasonable unless the State proves that one of the few ‘carefully drawn and jealously

guarded exceptions’ applies.” Byrd, 178 Wn.2d at 616 (quoting State v. Bravo Ortega,

177 Wn.2d 116, 122, 297 P.3d 57 (2013)). The answer to my question depends on

whether we permit warrantless searches to expand beyond the justifications that underlie

the carefully drawn exceptions to the warrant requirement.

       In State v. Valdez, 167 Wn.2d 761, 774-75, 224 P.3d 751 (2009), our highest court

unanimously held:

       [T]he search incident to arrest exception has been stretched beyond these
       underlying justifications, permitting searches beyond what was necessary
       for officer safety and preservation of the evidence of the crime of arrest.
       This trend in article I, section 7 jurisprudence was substantially adopted
       from a similar trend in Fourth Amendment jurisprudence. As characterized
       by Justice Frankfurter in the Fourth Amendment context, the trend of cases
       “merely prove[s] how a hint becomes a suggestion, is loosely turned into
       dictum and finally elevated to a decision.” United States v. Rabinowitz,
       339 U.S. 56, 75, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J.,
       dissenting).
               ....
               [This trend was because] cases departed from the principles upon
       which the search incident to arrest exception was based and have since been
       overruled. Yet they serve as clear reminders of the danger of wandering
       from the narrow principled justifications of the exception, even if such
       wandering is done an inch at a time. . . .

(Second alteration in original; some citations omitted.) I would jealously guard our

individual liberties by requiring warrants for searches not supported by the justifications

underlying the carefully drawn exceptions.




                                              3
No. 35273-1-111
State v. Nelson-dissent


       The majority opinion ends by noting various concerns with requiring warrants for

most breath searches. These concerns are overstated.

       First, the implied consent warnings can be withdrawn and substituted by a warning

that if the person does not consent to provide a breath sample, the officer will request a

telephonic warrant from a judge. As noted in Justice Sotomayor's dissent, requiring

warrants for most breath tests would not overly task the judiciary: "[A] significant

majority of drivers voluntarily consent to breath tests, even in states without criminal

penalties for refusal." Birchfield, 136 S. Ct. at 2193 (Sotomayor, J., dissenting).

       Second, law enforcement might start warning persons now, that if they refuse to

consent to a breath test, law enforcement will request a telephonic warrant from a judge.

This warning will prompt actual consent to a breath test in the vast majority of cases. For

those few who do not consent, a telephonic warrant can be requested. If after obtaining a

telephonic warrant a person persists in refusing to provide a sample, law enforcement can

give the additional implied consent warnings. Adjusting to this practice now will prevent

the harsh result, possible in the future, that warrantless breath tests will be suppressed.



                                                    l,.._,,.... w <sW\.�1 · c.. �.
                                                  Lawrence-Berrey, c.i




                                              4
