IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON C)
co / 4?i,71 STATE OF WASHINGTON, ) cp No. 76312-1-1 CD -ft-n ) Respondent, ) 7s.-orn ) DIVISION ONE Goma) v. ) ) —4c3 MICHELLE DAWN NICHOLS, ) UNPUBLISHED OPINION c) c27a* ) Appellant. ) FILED: August 13, 2018 )
ANDRUS, J. — Michelle Nichols was unconscious, receiving a transfusion,
and heading into surgery when the police authorized a warrantless blood draw.
She challenges the constitutionality of this action on the night she drove her car
head-on into an oncoming vehicle and killed its driver. We conclude exigent
circumstances justified drawing Nichols's blood without a search warrant and
affirm the conviction for vehicular homicide.
FACTS
The facts are undisputed. At 8:40 p.m. on February 14, 2015, Nichols
drove south on State Route(SR)525 (also known as SR 20), a two-lane highway
on Whidbey Island. She crossed the fog line and struck the guardrail on the right
side of the roadway. Her car ricocheted off the guardrail, crossed the centerline,
and struck a northbound Honda Accord. The driver, Timothy Keil, died as a
result of blunt force trauma injuries sustained in the crash. No. 76312-1-1/2
Washington State Patrol (WSP) Trooper Nicholas Hagg arrived
approximately thirty minutes later. When Trooper Hagg arrived, the collision
scene was chaotic. The two cars were blocking all traffic on the only road
leading to Whidbey Island, which is the main route for ferry traffic in Clinton.
Trooper Hagg coordinated the investigation primarily by himself because other
troopers were still en route from Deception Pass or off island. Despite the chaos,
Trooper Hagg saw a straight, dry roadway with good visibility and no signs that
Nichols had braked before the collision.
Trooper Hagg saw Nichols lying on a stretcher in the back of an
ambulance. Six or seven medical personnel inside the ambulance crowded
around her working to save her life. Nichols had blood on her face and was
flailing and screaming in pain. Trooper Hagg could see Nichols had sustained a
compound leg fracture; her broken femur was visible, sticking four inches out
from her leg. Because of these injuries, Trooper Hagg could not perform field
sobriety tests or detect any signs of alcohol impairment. For the short time he
was near Nichols, Trooper Hagg was unable to smell any alcohol. Nichols was
airlifted to Harborview Medical Center in Seattle shortly thereafter.
Trooper Hagg interviewed the medical personnel on scene. A firefighter
with the South Whidbey Fire Department noted that he smelled alcohol on
Nichols while stabilizing her head on a stretcher. Another firefighter told Trooper
Hagg that she had seen Nichols earlier that evening at a restaurant and bar in
Freeland. But when she greeted Nichols with a hug, she had not smelled the
2 No. 76312-1-1/3
odor of intoxicants. A registered nurse told Trooper Hagg that Nichols had
admitted she had been drinking earlier in the evening.
WSP Trooper Detective Jeffrey Rhue was dispatched to the scene at
10:00 p.m. Detective Rhue had to travel from his home in Stanwood through
Deception Pass to reach the collision scene and did not arrive until 11:58 p.m.
Trooper Hagg tried to keep Detective Rhue apprised of the evidence he was
collecting through repeated cell phone calls, but Trooper Hagg had very poor
reception, which "handicapped [him] in performing his duties of coordinating the
investigation." In an early conversation, Detective Rhue instructed Trooper Hagg
to send another trooper to Harborview to meet with Nichols to verify the odor of
intoxicants.
WSP Trooper Hagreen responded to the call and arrived at Harborview's
emergency department around 11:10 p.m. He found Nichols with a medical team
operating on her protruding femur and pouring liquid into her open abdominal
cavity. Trooper Hagreen learned that Nichols, who was by then unconscious,
had received two units of blood, was still receiving blood intravenously, and
would be undergoing further surgery. Because Nichols was intubated, Trooper
Hagreen could not smell the odor of intoxicants. At 11:24 p.m., Trooper Hagreen
called Trooper Hagg to report that Nichols was unconscious, sedated, and had
received blood transfusions. He also let Haag know that he had been unable to
determine Nichols's state of intoxication because of her injuries and ongoing
treatment.
3 No. 76312-1-1/4
Trooper Hagg called Detective Rhue a few minutes later to advise him that
Nichols "had already received two bags of blood, and that she was being
prepped for surgery—where she was likely to then be given more blood
transfusions," which would destroy the evidence of her blood alcohol content.
This call was the first in which Trooper Hagg and Detective Rhue did not
experience poor cell phone reception. Trooper Hagg detailed the roadway
conditions, the layout of the roadway, and the facts of the collision, specifically
the lack of braking, and the lack of any other collisions at that location. Because
of the poor reception during their previous calls, Detective Rhue had not been
made fully aware of the facts of the collision earlier in the evening.
During this uninterrupted call, Trooper Hagg told Detective Rhue that he
had learned that Nichols had a driving under the influence charge from 2000,
which had been reduced to negligent driving in the first degree. Trooper Hagg
also explained that the person who reported smelling intoxicants on Nichols was
the person closest to her in the ambulance. Additionally, Trooper Hagg and
Detective Rhue discussed the registered nurse's report stating that Nichols had
admitted to drinking earlier that evening and had "appeared confused and might
have suffered a head trauma." Detective Rhue concluded there was both
probable cause and exigent circumstances to draw Nichols's blood without a
search warrant.
Trooper Hagg contacted the Island County prosecuting attorney to confirm
the troopers could proceed with a warrantless blood draw. Trooper Hagg then
called Trooper Hagreen at 11:30 p.m. to ask him to request the blood draw.
4 No. 76312-1-1/5
Nichols, however, was in the process of getting either a CT scan or X-rays, and
the blood draw was delayed another hour. At 12:30 a.m., a registered nurse
withdrew two vials of blood in compliance with all procedures required by the
Washington State Toxicologist. Trooper Hagreen supervised the blood draw and
later placed the blood vials into the Washington State Patrol evidence system. A
forensic scientist analyzed the blood and reported that Nichols had a blood
ethanol level of 0.11 g/100 mL of blood approximately four hours after the
collision.
Nichols was charged with one count of vehicular homicide under chapters
46.61.520(1)(a) and 46.61.502 RCW. She challenged the constitutionality of the
warrantless blood draw, arguing that the troopers lacked probable cause to
establish she had been driving while intoxicated. She also challenged the
admissibility of the blood test results, arguing that the blood taken from her veins
was not her blood because it had been adulterated by the blood transfusion.
The trial court conducted a CrR 3.6 hearing. After hearing the testimony
of the troopers involved, the court found that Trooper Hagg's ability to obtain a
search warrant within a reasonable time was severely compromised by the
extremely poor cell phone reception he had at the scene. In order to make cell
phone calls, Trooper Hagg had to stand in the middle of the intersection at SR
525/SR 20 and Coles Road and turn in a circle until he got reception. If Trooper
Hagg turned around while talking on the phone, the cell phone either cut out or
he was unable to hear the person on the other end of the line. He had several
dropped cell phone calls while trying to talk to Detective Rhue. The trial court
5 No. 76312-1-1/6
also found that it would have taken Trooper Hagg two hours to return to his office
in Coupeville, prepare a search warrant, and contact an on-call judge to consider
the search warrant. And because Trooper Hagg was still waiting for other
troopers to arrive to assist with the investigation, it would have been difficult for
him to leave an open investigation of a vehicular fatality.
The trial court further found that the troopers became aware of exigent
circumstances when Trooper Hagreen told Trooper Hagg that Nichols had
received two units of blood and was heading into surgery. The court found it
would not have been feasible for Trooper Hagreen, who was at Harborview with
Nichols, to prepare a search warrant in a reasonable time because it would have
taken him two additional hours to gather the necessary information, with limited
cell coverage to connect with Trooper Hagg,from whom he would have to obtain
details to complete the search warrant. And in that time, Nichols's blood alcohol
level would have been further diluted with blood transfusions.
The trial court concluded that, based on the collective knowledge of the
troopers, there was probable cause to believe that Nichols was driving under the
influence of intoxicating liquor at the time of the collision. It further concluded
that the totality of the circumstances justified a warrantless blood draw under the
exigent circumstances exception to the warrant requirement. It denied Nichols's
motion to suppress the blood test results.
6 No. 76312-1-1/7
Nichols filed a second motion to exclude the blood test results. She
stipulated that the State met the prima facie requirements of RCW 46.61.506,1
but contended the blood sample could not be used to prove her blood alcohol
level at the time of the collision because the State could not prove that the blood
tested was in fact hers. The trial court rejected Nichols's argument and
concluded that even with the transfusions, the blood drawn was Nichols's blood
for purposes of RCW 46.61.5042 and WAG 448-14-020.3 In addition, the trial
court concluded that Nichols had failed to prove that the State would be unable to
establish the necessary foundational requirements for the admission of the blood
test results at trial.
Nichols stipulated at trial that the blood test was accurate, reliable, and
taken in compliance with the standards of the Washington State Toxicologist.
Nichols also stipulated that her blood alcohol concentration was no less than
0.11 g/100 mL of blood within two hours of the collision and that she did not
consume any alcohol after the collision and before the blood draw. Based on
these stipulated facts, the trial court found Nichols guilty of vehicular homicide.
1 RCW 46.61.506(3) provides: "Analysis of the person's blood or breath to be considered valid ... shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose." 2 The reference to RCW 46.61.504 in the trial court's findings and conclusions was a typographical error. The parties argued and briefed the issue of the admissibility of the blood test results under RCW 46.61.506. Where the pleadings, arguments, and briefing make it clear the parties were referring to the correct statute and the trial court analyzed the issue using the correct legal standard, this court can deem the reference to the wrong statute as an obvious typographical error. See Williams v. Striker, 29 Wn. App. 132, 133 n.2, 627 P.2d 590(1981). 3 This regulation sets out the operational protocol for taking blood samples for alcohol analysis.
7 No. 76312-1-1/8
ANALYSIS
Nichols raises three issues on appeal. She challenges the trial court's
conclusion that there was probable cause to conduct the blood draw. She also
contends the trial court erred in concluding that exigent circumstances justified
taking her blood without a search warrant. Finally, Nichols argues that the blood
analyzed by the state toxicologist was not her blood, as required by RCW
46.61.506(3).
Probable Cause
Nichols challenges the trial court's conclusion that probable cause existed
to draw her blood. The Fourth Amendment of the United States Constitution and
article 1, section 7 of the Washington State Constitution prohibit warrantless
searches and seizures. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266
(2009). Taking a person's blood and testing it constitutes a search and seizure
for which a warrant is generally required. Missouri v. McNeely, 569 U.S. 141,
148, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). Although an exception to the
warrant requirement may apply, such as exigent circumstances, id. at 148-49,
police still need to establish that given enough time, they would have been able
to get a warrant, see United States v. Impink, 728 F.2d 1228, 1231 (9th Cir.
1984). Probable cause is necessary for a warrant to issue. State v. Martines,
184 Wn.2d 83, 90, 355 P.3d 1111 (2015). Therefore, even when asserting an
exception to the warrant requirement, police must show probable cause, which
exists where there are facts and circumstances sufficient to establish a
reasonable inference that the defendant is involved in criminal activity and where
8 No. 76312-1-1/9
evidence of the criminal activity can be found at the place to be searched. State
v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004). In determining whether
probable cause is present, courts may consider the experience and expertise of
officers, as well as a suspect's prior convictions if for a similar crime. Id. at 511-
12.
A determination of probable cause is a mixed question of fact and law.
State v. Vasquez, 109 Wn. App. 310, 318, 34 P.3d 1255 (2001). We review
challenged findings of fact for substantial evidence and review de novo whether
the facts support this legal determination. Id. Unchallenged findings are verities
on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). Nichols
has assigned no error to any of the trial court's factual findings from the
suppression hearings.4 Thus, the only issue for us to decide is whether the
undisputed facts support a determination that probable cause existed.
Nichols argues that at the time her blood was drawn, there was no
evidence that she had consumed any alcohol or that she was impaired by the
consumption of alcohol. But this argument ignores the undisputed factual
findings—namely that a registered nurse told Trooper Hagg that Nichols had
admitted she had been drinking earlier in the evening, and a firefighter closest to
Nichols's head inside the ambulance told Trooper Hagg that he had smelled the
odor of intoxicants on Nichols while stabilizing her head. Additionally, another
firefighter had seen Nichols in a restaurant and bar earlier that evening. In
4 RAP 10.3(g) requires a "separate assignment of error for each finding of fact a party contends was improperly made" with a reference to the finding by number. Nichols failed to provide any separate assignment of error for any of the trial court's findings of fact.
-9- No. 76312-1-1/10
addition to this evidence, Trooper Hagg learned that Nichols had a previous
driving under the influence charge. The troopers also testified that the
circumstances of the accident itself—a head-on collision on a straight roadway
with good visibility in a location with no prior accidents and no evidence of any
braking before impact—strongly suggested no other probable explanation than
that Nichols was driving under the influence of alcohol. The unchallenged
findings of fact support the legal conclusion there was probable cause to draw
Nichols's blood based on the belief that she had committed the crime of vehicular
homicide.5
Nichols asserts the troopers supplemented the missing elements of
probable cause through the exigent circumstances exception when they could
find no additional evidence of intoxication. We disagree with this characterization
of events. Trooper Hagg and Detective Rhue made the decision to send a
trooper to Harborview in an attempt to collect as much evidence as possible
before contacting a judge for a search warrant. At the time they made that
decision, they were unaware that Nichols was on the verge of surgery or
receiving blood transfusions. We will not use the unfair advantage of hindsight to
second guess the professional judgment they exercised in conducting the
investigation. Cf. Staats v. Brown, 139 Wn.2d 757, 774, 991 P.2d 615 (2000)(in
excessive force context, courts cannot judge reasonableness through hindsight
because "police officers are often forced to make split-second judgments in
5 RCW 46.61.520(1)(a) provides that "[w]hen the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor - 10- No. 76312-1-1/11
tense, uncertain, and rapidly evolving circumstances"). Moreover, it was not until
11:30 p.m. when Trooper Hagg relayed the details of his investigation to
Detective Rhue that the troopers had all relevant information to make the
probable cause determination. And when they came to the conclusion they had
probable cause, they were also confronted with the risk of losing evidence due to
the blood transfusions and losing access to Nichols due to her impending
surgery. The troopers did not unreasonably delay in making their probable cause
assessment.
Exigent Circumstances
The State drew Nichols's blood without a search warrant because of the
exigencies of this case. One of the few "narrowly drawn' exceptions" to the
warrant requirement is exigent circumstances. Garvin, 166 Wn.2d at 249-50
(quoting State v. Jones, 146 Wn.2d 328, 335, 45 P.3d 1062 (2002)). The
Washington State Supreme Court has identified several circumstances that could
be considered "exigent," one of which is the destruction of evidence. State v.
Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983). The mere risk that evidence
may be destroyed does not mean that exigent circumstances justify a
warrantless search in all cases. State v. Tibbles, 169 Wn.2d 364, 370, 236 P.3d
885 (2010). Rather, a court "must look to the totality of the circumstances in
determining whether exigent circumstances exist," id., including whether "less
intrusive options were available." State v. Cruz, 195 Wn. App. 120, 127, 380
P.3d 599 (2016).
vehicle ...[w]hile under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502." No. 76312-1-1/12
Furthermore, there must be more than "mere suspicion that evidence may
be present. .. ; rather, there must be a 'finding of probable cause coupled with
exigent circumstances." lmpink, 728 F.2d at 1231 (quoting United States v.
Stanley, 545 F.2d 661, 664 (9th Cir. 1976)). The impracticality of obtaining a
warrant is the focus of the exigent circumstances exception. State v. Audlev, 77
Wn. App. 897, 905, 894 P.2d 1359 (1995); see also Tibbles, 169 Wn.2d at 371.
The State must show by clear and convincing evidence that the search falls
within the exigent circumstance exception. Garvin, 166 Wn.2d at 249-50. "Clear
and convincing evidence creates a conviction that the factual contention is 'highly
probable." United States v. Yi, 704 F.3d 800, 806 (9th Cir. 2013) (quoting
Colorado v. New Mexico, 467 U.S. 310, 316, 104 S. Ct. 2433, 81 L. Ed. 2d 247
(1984)). Whether exigent circumstances exist to justify a warrantless blood test
is a legal question this court reviews de novo. City of Seattle v. Pearson, 192
Wn. App. 802, 811-12, 369 P.3d 194(2016).
In Missouri v. McNeely, the United States Supreme Court held that the
natural dissipation of alcohol in the bloodstream alone did not justify a
warrantless blood draw of a suspected drunk driver. 569 U.S. 141, 165, 133 S.
Ct. 1552, 185 L. Ed. 2d 696, 702 (2013). The Fourth Amendment requires
officers to obtain a warrant where they can do so within a reasonable time and
where it will not significantly undermine the efficacy of the search. içj. at 152.
RCW 46.20.308(3) was amended after McNeely to provide that a blood test
could be administered without consent only pursuant to a search warrant, a valid
- 12 - No. 76312-1-1/13
waiver of the warrant requirement, or when exigent circumstances exist. See
LAWS OF 2013, 2d Spec. Sess., ch. 35,§ 36.
Nichols relies on Pearson to argue that the State failed to prove that
troopers could not obtain a search warrant in a timely manner. In that case,
Pearson appealed a conviction for driving under the influence of marijuana,
arguing that exigent circumstances did not justify a warrantless blood draw.
Pearson, 192 Wn. App. at 806-07. This Court held that the natural dissipation of
tetrahydrocannabinol (THC) in a suspect's bloodstream constitutes an exigency
sufficient to forgo the warrant requirement "only if the party seeking to introduce
evidence of a warrantless blood test can show that waiting to obtain a warrant
would result in losing evidence of the defendant's intoxication." Id. at 813.
Testimony in that case demonstrated that there were at least eight officers
present on the scene of Pearson's accident on a heavily travelled road in Seattle.
Id. at 816. Further testimony established that available officers could have
obtained a search warrant by email or telephone within 60 to 90 minutes, and
there was no explanation for why they had not tried to obtain a warrant. Id.
Because the City failed to show by clear and convincing evidence that waiting for
a warrant would result in the loss of evidence of intoxication, "the natural
dissipation of THC in Pearson's bloodstream alone did not constitute an exigency
sufficient to bypass the warrant requirement." Id.
Pearson is distinguishable. First, in the present case, there were a limited
number of troopers available to maintain public safety at the collision scene,
conduct the investigation, and obtain a search warrant. Trooper Hagg was alone
-13- No. 76312-1-1/14
at a rural, serious two-vehicle, fatality accident site. The other troopers called to
assist did not arrive until much later—Trooper Larsen arrived at 9:45 p.m.;
Trooper Hainer arrived at 10:07 p.m.; and Detective Rhue arrived at midnight.
As the trial court found:
[t]here were limited Washington State Patrol Troopers on the scene to help investigate. Most, up until the time the blood draw was taken, were en route to the scene; either coming to the mainland by way of Deception Pass on North Whidbey or by way of the ferry on South Whidbey.
Because of this, Trooper Hagg coordinated the entire investigation primarily on
his own. It would have been difficult for Trooper Hagg to leave the open
investigation to return to his office to prepare a search warrant.
In addition, contrary to Nichols's assertion, this court in Pearson did not
require the City to show it tried to, but was unable to obtain a warrant. Rather,
we concluded "[t]he City failed to satisfy its heavy burden to show by clear and
convincing evidence that a warrant could not have been obtained in a reasonable
time." Pearson, 192 Wn. App. at 815. Unlike the officers in Pearson, Trooper
Hagg had limited cell phone reception, which impaired his ability to gather
information about Nichols's condition from Trooper Hagreen, to connect with
Detective Rhue, who was driving to the accident site, and to contact a judge for a
The trial court detailed the obstacles poor cell phone reception presented
for Trooper Hagg that night:
5. In order to make cell calls, Trooper Hagg had to go 1) to the intersection of Coles Road and [SR 525/]SR 20, 2) stand in the middle of the intersection, and 3) turn in a circle until he got cell reception.
- 14 - No. 76312-1-1/15
6. If Trooper Hagg turned away from his original position, the cell phone call would cut out or the person's voice on the call would be so inaudible that he would have to hang up and try to call again. 7. The best reception Trooper Hagg could get were two bars of cellular reception out of the extended network. It was only one bar of reception on his regular Sprint network, which was fine at his home and in Anacortes but did not work reliably at the scene. 8. Trooper Hagg had several dropped phone calls while he was trying to talk to WSP Detective Rhue, who was experiencing his own poor cell reception while driving to the scene. 9. Trooper Hagg had no ability to have a search warrant prepared at the accident scene considering his lack of reliable cell phone service and lack of backup troopers. 10. Under good conditions, which these were not, Trooper Hagg estimated that it would take him two hours to get back to the office in Coupeville, prepare the search warrant, and contact an on-call judge to consider the search warrant.
Nichols has not challenged any of these findings of fact on appeal. Thus, on the
record before us, there is clear and convincing evidence that the troopers could
not obtain a warrant in a reasonable time. See State v. Inman, 2 Wn. App. 2d
281, 291-93, 409 P.3d 1138 (2018) (exigent circumstances existed for
warrantless blood draw in rural location with unreliable cell phone coverage and
suspected drunk driver with serious injuries requiring ongoing medical treatment);
but see Tibbles, 169 Wn.2d at 370 (finding no exigent circumstances where State
did not "establish[] that obtaining a warrant was otherwise impracticable"
because record contained no evidence of steps needed to procure a warrant).
Finally, the severity of Nichols's injuries and the blood transfusions
complicated this investigation. Trooper Hagg could not conduct field sobriety
tests or observe any obvious signs of intoxication because Nichols was airlifted
to Harborview for treatment of her life-threatening injuries shortly after Trooper - 15- No. 76312-1-1/16
Hagg arrived on scene. Later, Trooper Hagg learned that Nichols was intubated,
making it difficult for Trooper Hagreen to detect an odor of intoxicants, and she
had received two units of blood and was likely to need more. The troopers were
concerned that the transfusions would dilute any blood alcohol in her system.
Troopers Hagg and Hagreen also learned that Nichols was being prepared for
surgery, limiting her availability for a blood draw. The blood transfusions and
imminent surgeries made the situation a true emergency, necessitating more
intrusive means to determine Nichols's intoxication. The officers in Pearson
faced none of these logistical or factual problems. The record here is much
different than in Pearson. In this case, the trial court explicitly found that Trooper
Hagg and his colleagues would have faced incredible difficulties in obtaining a
warrant in a timely manner. It specifically found that in the time it would have
taken to obtain a warrant, Nichols's blood alcohol level would have been further
diluted with blood transfusions. Thus, Pearson does not support Nichols's
appeal.
In Schmerber v. California, a pre-McNeelv case, the Supreme Court
upheld a warrantless blood draw of a drunk driver because of the time it took to
investigate the accident scene and to transport the defendant to the hospital for
treatment of injuries sustained in the accident. 384 U.S. 757, 771, 86 S. Ct.
1826, 16 L. Ed. 2d 908 (1966). The Washington State Supreme Court recently
followed Schmerber in holding that the totality of the circumstances, including the
time lost in transporting a defendant to the hospital for treatment and in
investigating the accident scene, are important considerations when evaluating
- 16 - No. 76312-1-1/17
exigency. State v. Baird, 187 Wn.2d 210, 220, 386 P.3d 239 (2016). The trial
court properly considered all this evidence when it found exigent circumstances
in this case.
Given the totality of circumstances, we hold the trial court did not err in
concluding that the exigencies of the case justified a warrantless blood draw
because the State showed by clear and convincing evidence6 that it was
impractical to obtain a warrant in a timely manner and highly probable that
evidence would be destroyed if troopers further delayed by obtaining a search
warrant.
Admissibility of Blood Test Results
A person is guilty of vehicular homicide when she operates a motor
vehicle "while under the influence of intoxicating liquor or any drug, as defined by
RCW 46.61.502," and causes the death of any person. RCW 46.61.520(1)(a). A
person is deemed to be under the influence if she has an alcohol concentration
level of 0.08 or higher as shown by an analysis of her blood under RCW
46.61.506. RCW 46.61.502(1)(a). RCW 46.61.506(3) provides:
Analysis of the person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose.
6 Nichols maintains the trial court failed to apply the clear and convincing evidence standard when concluding that exigent circumstances justified the warrantless blood draw. The State cited the trial court to the correct standard in opposing the motion to suppress. Furthermore, whether exigent circumstances exist to justify a warrantless blood test is a legal question this court reviews de novo. Pearson, 192 Wn. App. at 811-12. Based on the record before us, in particular the unchallenged findings, the State met its burden to show by clear and convincing evidence that exigent circumstances existed to draw Nichols's blood without a warrant.
- 17- No. 76312-1-1/18
(emphasis added).
Nichols argues the blood test results are inadmissible unless the State
establishes that it was her blood that was tested. She contends that the blood
transfusions raise a question as to whether the blood sample they withdrew from
her at Harborview actually belonged to her.
The trial court found that Trooper Hagreen watched as a nurse withdrew
blood from Nichols's arm. Nichols does not dispute this finding. Nor does she
claim that the blood ultimately tested was blood other than the sample taken from
her body. The trial court concluded that once the transfused blood entered
Nichols's body, it became her blood for purposes of the statute. We agree. This
Court holds that "the person's blood" under RCW 46.61.5067 and RCW
46.61.502 simply means blood that has been withdrawn from a defendant's body.
Because there is no dispute here that the tested blood came from Nichols's
veins, we conclude that the trial court did not err in admitting the blood test
results at her trial.
We affirm.
WE CONCUR:
kQ,v-tQ9Q, 7 Nichols also contends RCW 46.61.506(4)(b) applies only to breath tests, and not to blood tests. Because State v. Brown explicitly states RCW 46.61.506(4)(b) and (c) apply to all of RCW 46.61.506, this contention lacks merit. 145 Wn. App. 62,69 n.1, 184 P.3d 1284 (2008).
- 18-