                                                                       FILED
                                                                   JANUARY 31, 2017
                                                                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. 32653-5-111
                    Respondent,              )
                                             )
      V.                                     )
                                             )
BRYAN JACOB STORMS,                          )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      KORSMO, J. -Bryan Storms appeals his conviction for vehicular homicide and

four other crimes arising from an egregious motor vehicle collision. We affirm the

convictions and the challenged basis for the exceptional sentence, but remand for re-

sentencing because the State failed to establish an exigency that excused the need for a

search warrant before drawing blood.

                                         FACTS

      Mr. Storms, traveling at least 45 m.p.h. on a Spokane street in a Honda Civic

while fleeing from a police officer, ran through a stop sign and smashed into a pickup

truck driven by Kevin Smith at 12:25 p.m. on Sunday, February 10, 2013. The collision

sent the truck into the air before it knocked down a telephone pole. Mr. Smith was killed

at the scene. Two of the passengers in the Honda were injured.
No. 32653-5-III
State v. Storms


       Storms fled the scene on foot, but a witness was able to direct officers to him. The

officer who took him into custody noted that Storms was sweating profusely and

constantly moving his limbs and body. Two other officers took custody of Storms and

conducted witness show ups. Meanwhile, emergency personnel had to take the two

passengers out of the Honda for medical treatment. Many observers had to be cleared

from the area and the accident scene secured. Ultimately, 23 officers took part in the

crime scene investigation.

       A "baggie" of white powder, believed to be methamphetamine, was observed by

an officer. Medical personnel advised that Mr. Storms might need x-rays of his injuries.

The sergeant in charge of the scene directed two officers to take Storms to the hospital

and obtain a blood draw. They arrived at the hospital at 1:37 p.m. A drug recognition

expert (DRE) drove in from Ritzville, but Mr. Storms refused to submit to DRE testing.

Ultimately, blood was drown over the objection of Mr. Storms at 2:16 p.m. Subsequent

analysis revealed the presence of amphetamine and methamphetamine in the blood.

      Three days after the accident, the prosecutor filed the four felony driving charges.

In each instance, it was alleged that an aggravating factor was present due to the multiple

current offenses and the defendant's high offender score. In addition, it was alleged that




                                             2
No. 32653-5-111
State v. Storms


the victim in count three suffered injuries more substantial than required to establish the

crime. 1

       The defense moved to suppress the results of the blood draw, arguing that a search

warrant had been required to take the defendant's blood and that exigent circumstances

did not exist to excuse the failure. Rather than defending on the basis of the implied

consent statute, the State argued that exigent circumstances had existed. The trial court

ultimately agreed, concluding that exigencies existed due to the length of time needed to

obtain a search warrant, the dissipation of substances in the defendant's blood, and the

fear that medical treatment would further delay seizure of the blood.

       The case proceeded to jury trial one year after the incident. A jury found Storms

guilty as charged of vehicular homicide, two counts of vehicular assault, and one count of

felony hit and run (fatality). Jury interrogatories on the first three counts indicated the

jury's unanimous agreement that Storms had committed each crime by all methods

alleged in the charging documents--by driving while under the influence (DUI), while

driving in a reckless manner, and while driving with disregard for the safety of others.

The jury also returned a special verdict on count three finding that the injuries to victim




       1
       The information subsequently was amended to add a count of driving while license
suspended in the third degree. The defendant pleaded guilty to that count prior to trial.



                                              3
No. 32653-5-III
State v. Storms


Lynn Blumer substantially exceeded the level of bodily harm necessary to establish

substantial bodily injury.

       The matter proceeded to sentencing. The court found that both charged

aggravating factors existed and declared an exceptional sentence. The court imposed a

total term of 448 months by running the standard range sentences on the first three counts

consecutively. Mr. Storms timely appealed to this court. Appropriate findings in support

of the suppression ruling and the exceptional sentence were entered.

       Appointed counsel filed a brief solely attacking the evidence supporting the

special verdict on count three. Mr. Storms filed a statement of additional grounds (SAG)

challenging the court's ruling on the suppression hearing. This court directed both

counsel to brief the exigent circumstances issue, and then to file supplemental briefs as

additional opinions were released by the United States and Washington Supreme Courts.

Ultimately, the matter proceeded to argument before a panel of this court.

                                        ANALYSIS

       We consider first the issue initially presented by the SAG before turning to the

sufficiency of the evidence to support the special verdict.

       Exigent Circumstances

       This issue is complicated by the fact that the United States Supreme Court may, or

may not, have changed the rules governing this situation after the arrest in this case.

Believing that the rules had changed, the State tried to justify the blood draw on the basis

                                             4
No. 32653-5-III
State v. Storms


of a theory officers had not relied on during the arrest. We disagree that the State

established an exigency excusing the need to obtain a search warrant for Mr. Storms'

blood.

         As it existed at the time of the arrest in this case, Washington's implied consent

statute provided:

         Except as provided in this section, the test administered shall be of the
         breath only. If an individual is unconscious or is under arrest for the crime
         of felony driving under the influence of intoxicating liquor or drugs under
         RCW 46.61.502(6), felony physical control of a motor vehicle while under
         the influence of intoxicating liquor or any drug under RCW 46.61.504(6),
         vehicular homicide as provided in RCW 46.61.520, or vehicular assault as
         provided in RCW 46.61.522, or if an individual is under arrest for the crime
         of driving while under the influence of intoxicating liquor or drugs as
         provided in RCW 46.61.502, which arrest results from an accident in which
         there has been serious bodily injury to another person, a breath or blood test
         may be administered without the consent of the individual so arrested.

Former RCW 46.20.308(3) (2012). As written, the statute removed the ability of certain

defendants to revoke their consent to alcohol testing. State v. Judge, 100 Wn.2d 706,

710-711, 675 P.2d 219 (1984).

         After charges were filed in this case, the United States Supreme Court issued its

decision in Missouri v. McNeely, 569 U.S._, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

There the court concluded that the natural dissipation of alcohol in the bloodstream alone

did not justify a warrantless blood draw of a DUI suspect. 185 L. Ed. 2d at 702. The

court revisited its decision in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16

L. Ed. 2d 908 ( 1966), given the technological developments of the past half century. Id.

                                               5
No. 32653-5-111
State v. Storms


The court also noted that, unlike Missouri, many states such as Washington had chosen to

limit the circumstances in which nonconsensual blood draws could be taken. Id. at 713

n.9. It ultimately held that the Fourth Amendment requires officers obtain a warrant

where they can do so within a reasonable time, and where it will not "significantly"

undermine "the efficacy of the search." Id. at 707.

       In response to McNeely, the Washington Legislature promptly amended the

implied consent statute. The second sentence ofRCW 46.20.308(3) was changed to read

the breath or blood test could be administered without consent "pursuant to a search

warrant, a valid waiver of the warrant requirement, or when exigent circumstances exist."

LAWS OF 2013, 2d Sp. Sess., ch. 35, § 36. 2 This version of the statute was in effect at the

time of the suppression hearing held in this case.

       Before turning to the exigency argument, it is important first to note what we are

not deciding. The State has eschewed reliance on the former implied consent statute both

in the trial court and in briefing to this court. Accordingly, the validity of the former

implied consent statute's authorization of mandatory testing without consent is not before

us. The State has chosen solely to rely on the exigency exception to the search warrant

requirement.



       2
        The legislature deleted existing RCW 46.20.308(3) and enacted a similar
provision, RCW 46.20.308(4) in 2015. See LAWS OF 2015, 2d Sp. Sess. ch. 3, § 5.



                                              6
No. 32653-5-111
State v. Storms


       Exigent circumstances excuse the need for a warrant where it is not practical for

the State to obtain a warrant because the inherent delay would "compromise officer

safety, facilitate escape or permit the destruction of evidence." State v. Smith, 165 Wn.2d

511,517, 199 P.3d 386 (2009) (internal quotation marks omitted). In certain

circumstances, the mobility or destruction of evidence can be considered an exigent

circumstance. State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983); State v. Komoto,

40 Wn. App. 200, 207-208, 697 P.2d 1025 (1985). Specifically, the need for naturally

dissipating evidence in the body, such as blood alcohol, can support a finding of exigent

circumstances. McNeely, 185 L. Ed. 2d at 709. However, the court must look at the

totality of the circumstances. Id. The State bears the burden of establishing the exigency.

State v. Tibbles, 169 Wn.2d 364, 369, 236 P.3d 885 (2010). 3

       The trial court found that the exigent circumstances justifying the warrantless

blood draw in this case were the length of time to obtain a warrant and the potential delay

resulting from expected medical treatment. Neither factor establishes why a warrant was

not a practical answer in this case.




       3
         The State also bears the burden of establishing probable cause to believe evidence
of the crime will be found. Komoto, 40 Wn. App. at 206. The record overwhelmingly
established probable cause to believe that Mr. Storms was under the influence at the time
of the accident. His prose arguments to the contrary are meritless and will not be further
discussed in light of our ultimate conclusion.


                                             7
No. 32653-5-III
State v. Storms


       Although the State presented testimony that it could have taken as much as four

hours to write, obtain, and execute the warrant on a Sunday afternoon, it failed to address

other, more practical approaches to obtaining a warrant. For instance, Washington

permits communication of search warrant authority "by any reliable means." CrR 2.3( c).

There is no indication that an officer could not have contacted a judge by telephone, fax

machine, or e-mail in an effort to promptly obtain judicial authorization for a search.

There also is no indication that 1 of the 23 officers could not have begun work on seeking

a warrant shortly after the defendant's arrest. If all were needed to perform emergency

services at the scene such as tending to victims, assisting aid personnel, or directing

traffic, evidence of that fact could have been presented at the suppression hearing. There

was no such evidence. In short, there needed to be some evidence explaining why other

alternatives would not have worked, in addition to explaining why the officers did what

they did.

       Similarly, the fact that officers reasonably expected the defendant to undergo x-

rays is not a particularly compelling fact. X-rays typically do not take much time nor

require treating the defendant prior to the examination. If particularly involved

procedures were anticipated, evidence of that fact could have been presented. Indeed,

with the benefit of hindsight, evidence establishing what procedures the defendant did

undergo and how those would have delayed blood testing might have established this

factor. If, for instance, the defendant was expected to undergo a lengthy surgery, or had

                                              8
No. 32653-5-111
State v. Storms


actually done so, that evidence might well have justified reliance on pending medical

treatment as an exigency. However, in this record there is no indication the defendant

underwent any treatment, let alone significantly lengthy treatment.

       In sum, the evidence does not support the trial court's conclusion that a

warrantless blood draw was the only practical method of proceeding on this occasion. 4

The State has not satisfied its burden that an exigent circumstance exists. It presented no

evidence that a telephonic warrant was unavailable, nor did it explain why one officer

could not seek a warrant while another officer transported Mr. Storms. Both the holding

and reasoning of McNeely weigh against finding an exigent circumstance on this record.

A warrantless blood draw might have been justified here, but this record simply does not

support that conclusion.

      Accordingly, the trial court erred when it denied the motion to suppress the blood

draw. We also conclude that the error was not harmless with respect to the under the

influence prong of the vehicular homicide and vehicular assault convictions. While there

was ample evidence suggesting impairment from the testimony of responding officers,

the strongest and most objective evidence of impairment came from the blood test results.



      4
         Another factor on which evidence was lacking concerned the dissipation rate of
controlled substances. Here, the authorities reasonably suspected use of methamphetamine,
but presented no evidence whether that substance or other street drugs were subject to rapid
dissipation.



                                             9
No. 32653-5-111
State v. Storms


Accordingly, we cannot conclude that the blood test evidence did not affect the verdict on

the under the influence prong of the three offenses. However, that evidence did not affect

the verdict on the reckless manner and disregard for the safety of others prongs. The jury

was told to consider the offenses separately and the impairment evidence had no

particular relevance to the other two prongs. Moreover, the details of the collision

(speed, ignoring a stop sign) were not in dispute; both the State and defense experts

concurred on the facts of the incident. 5 The evidence overwhelmingly backed the

reckless manner and disregard of safety of others prongs of the three charges. We

conclude that error in the admission of the blood test results was harmless beyond a

reasonable doubt as to the other prongs of the offenses. The special interrogatory

answers were not tainted by the blood examination results.

       The remaining question is the remedy. The State would be entitled to retry the

charges on the under the influence theory because ample evidence still exists to support a

jury verdict. However, the prosecutor at oral argument elected to have the case re-

sentenced rather than retried in the event that the blood test was suppressed. Since the

State is waiving its opportunity to retry the case, we remand for resentencing on the other

prongs of the three offenses.



       5The defense closing argument noted that the experts agreed and was focused
nearly entirely on disputing whether the State had established the impairment prong of
the charges.

                                            10
No. 32653-5-III
State v. Storms


       Aggravating Factors

       The remaining issue for consideration is the defense claim that the evidence did

not support the jury's special verdict that the injuries suffered by Ms. Blumer were

substantially greater than necessary to establish substantial bodily injury. 6 The evidence

supports the jury's verdict.

       Whether the evidence supports a jury's special verdict is reviewed for substantial

evidence. State v. DeLeon, 185 Wn. App. 171, 212, 341 P.3d 315 (2014). Evidence is

sufficient where the jury could find each element proved beyond a reasonable doubt. Id.

This court reviews the evidence in the light most favorable to the State. State v.

Hacheney, 160 Wn.2d 503,512, 158 P.3d 1152 (2007).

       RCW 9.94A.535(3)(y) provides that it is an aggravating factor that a "victim's

injuries substantially exceeded the level of bodily harm necessary to satisfy the elements

of the offense." To establish vehicular assault, the State was required to prove

"substantial bodily harm to another." RCW 46.61.522. "Substantial bodily harm means

bodily injury which involves a temporary but substantial disfigurement, or which causes

a temporary but substantial loss or impairment of the function of any bodily part or organ,

or which causes a fracture of any bodily part." RCW 9A.04.110( 4 )(b) (internal quotation



       6
        The defense does not challenge the trial court's finding that the "free crimes"
aggravator was present on all four felony offenses. RCW 9.94A.535(2)(c).


                                             11
No. 32653-5-111
State v. Storms


marks omitted). The harm to the victim does not need to reach the next statutory

category of harm to satisfy the "substantially exceed" test. State v. Pappas, 176 Wn.2d

188,192,289 P.3d 634 (2012).

       The evidence supports the jury's verdict. Ms. Blumer suffered a traumatic brain

injury that was still symptomatic a year after the crash. A doctor also testified that the

impaired cognitive function from these injuries usually last a year but can be permanent.

"Great bodily harm" is satisfied where the victim suffers an injury that causes

"permanent loss or impairment ... of any bodily part or organ." RCW 9A.04.110(4)(c).

Because of her long-term cognitive dysfunction, Ms. Blumer's injuries almost reach

"great bodily harm." This fact indicates they substantially exceed substantial bodily

harm. See Pappas, 176 Wn.2d at 192 ("While the jump between statutory categories of

harm necessarily meets the 'substantially exceed' test, injuries can 'substantially exceed'

one category of harm without reaching the severity of the next category.").

       The evidence allowed the jury to find that Ms. Blumer suffered injuries that

significantly exceeded the level of bodily harm necessary to establish the offense. The

evidence thus was sufficient to support the jury's special verdict.

       The convictions are affirmed, but the three jury interrogatories that concluded the

crimes were committed while under the influence are reversed. The aggravating factors

found by the jury and the court are affirmed. The case is remanded for resentencing.




                                             12
No. 32653-5-111
State v. Storms


      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:



   5)i:ilt;cu   , ~
    Siddoway, ~     J.



      Pennell, J.




                                           13
