                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        November 7, 2017
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 46136-6-II

                                Petitioner,

          v.

    JASON C. STYMACKS,                                        UNPUBLISHED OPINION

                                Respondent.

         WORSWICK, J. — The State appeals the trial court’s written ruling granting Jason C.

Stymacks’s motion to suppress evidence of his refusal to submit to a breath test following his

arrest for felony driving under the influence (DUI). The State argues that the trial court erred in

granting Stymacks’s motion to suppress because a driver’s refusal to submit to a breath test is

admissible evidence. Stymacks concedes error. We accept Stymacks’s concession, reverse the

trial court’s ruling, and remand for further proceedings.

                                              FACTS

         Stymacks was arrested for felony DUI. After Stymacks was placed under arrest, an

officer read Stymacks his constitutional rights and his implied consent warnings.1 Stymacks then

refused to submit to a breath test. The State charged Stymacks with felony DUI.2



1
  Any person who operates a motor vehicle within the state is deemed to have given consent to
breath testing for the purpose of determining the alcohol concentration in his or her breath.
Former RCW 46.20.308(1) (2008). The officer requesting a breath test must provide warnings to
the driver that refusal to submit to the test may be used in a criminal trial. Former RCW
46.20.308(2)(b).
2
    Former RCW 46.61.502(6) (2011).
No. 46136-6-II


        Prior to trial, Stymacks moved to suppress evidence of his refusal to submit to a breath

test, arguing that the breath test was an unconstitutional, warrantless search. The trial court

granted Stymacks’s motion to suppress, concluding that a defendant’s refusal to submit to a

breath test is not admissible as evidence of guilt. The State moved for, and we granted,

discretionary review of the trial court’s written ruling.

                                              ANALYSIS

        The State argues that the trial court erred in suppressing evidence of Stymacks’s refusal

to submit to a breath test because such evidence is admissible under State v. Baird, 187 Wn.2d

210, 386 P.3d 239 (2016). Stymacks concedes error, and we accept his concession.

        We review challenges to a trial court’s legal conclusion on a motion to suppress de novo.

Baird, 187 Wn.2d at 218. A breath test is a search under the Fourth Amendment and under

article I, section 7 of the Washington Constitution. State v. Garcia-Salgado, 170 Wn.2d 176,

184, 240 P.3d 153 (2010). Generally, “[w]e presume that a warrantless search violates these

constitutional provisions.” Baird, 187 Wn.2d at 218. However, there are limited exceptions to

the warrant requirement, and the State bears the burden of showing that a search falls within one

of these “narrowly drawn” exceptions. Garcia-Salgado, 170 Wn.2d at 184.

        In Baird, the Washington Supreme Court determined that a post-arrest breath test is a

search incident to arrest and is an exception to the warrant requirement. 187 Wn.2d at 222. The

court held that evidence of a defendant’s refusal to submit to a breath test is admissible evidence

of guilt at trial because there is no constitutional right to refuse a search that is incident to arrest.

187 Wn.2d at 228-29.




                                                    2
No. 46136-6-II


        Here, Stymacks was arrested for felony DUI. An officer advised Stymacks of the implied

consent warning and requested that he submit to a breath test. Stymacks refused. The trial court

later granted Stymacks’s motion to suppress, concluding that a defendant’s refusal to submit to a

breath test is not admissible as evidence of guilt.

        Under Baird, a post-arrest breath test is a constitutional search incident to arrest. 187

Wn.2d at 222. As a result, evidence of Stymacks’s refusal to submit to a breath test is

admissible. Accordingly, the trial court erred in granting Stymacks’s motion to suppress

evidence of his refusal to submit to a breath test. Thus, we accept Stymacks’s concession,

reverse the trial court’s ruling granting Stymacks’s motion to suppress, and remand for further

proceedings.

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

Washington Appellate Reports but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                       Worswick, J.
 We concur:



 Maxa, A.C.J.




 Sutton, J.




                                                  3
