THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) No. 80277-1-I ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) SARAH ADAMS, ) ) Appellant. ) )
ANDRUS, A.C.J. — Sarah Adams appeals her jury conviction for vehicular
homicide and possession of heroin. She challenges the trial court’s denial of her
pretrial motions to suppress evidence and sever the charges. She also argues the
trial court failed to properly instruct the jury on an essential element of the
possession charge. We conclude that the trial court did not err in denying Adams’s
motions to suppress evidence and to sever the charges. We reverse her
conviction for possession of heroin based on State v. Blake, No. 96873-0, slip op.
(Wash. Feb. 25, 2021), https://www.courts.wa.gov/opinions/pdf/968730.pdf.
FACTS
Sarah Adams was charged with vehicular homicide and possession of
heroin after she struck and killed a motorcyclist, Jonathan Wiger, who was stopped
at a traffic light on his way home from work at approximately 5:30 pm on June 19,
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80277-1-I/2
2017. As Wiger and several other motorists waited for the light to change at the
intersection of 15th Street NW and State Route 167 in Auburn, Washington,
Adams approached from behind traveling approximately 40 miles per hour. The
weather was sunny and dry, yet Adams made no attempt to stop or slow down as
she neared the intersection. Adams slammed into the rear of Wiger’s motorcycle
with her Subaru Outback and threw him forty-five feet into another vehicle. Wiger
died at the scene shortly after the collision. His motorcycle also struck other
vehicles waiting at the intersection, causing at least one other injury.
Adams’s Subaru was severely damaged and came to rest on its side,
trapping Adams inside and scattering used syringes and drug paraphernalia
across the pavement. Responding firefighters broke out the rear window of her
car to allow her to climb out, but refused to enter Adams’s vehicle to extract her
because of the presence of needles.
Police Officer Aaron Scrivo was dispatched to the scene at approximately
5:34 pm. He saw what appeared to be a very severe, multiple car accident
involving a high-speed collision resulting in at least one fatality. The accident
scene was a large intersection with at least four lanes of traffic, one turning lane,
and highway entrance and exit ramps. One vehicle was on its side and multiple
cars were strewn between lanes, some having rolled into others. He began
assisting other officers talking to witnesses to determine what had happened.
Sergeant James Hopper, the supervisor on this scene, arrived at 5:47 pm.
By the time he arrived, Adams was in an ambulance and being evaluated by
emergency personnel. Sergeant Hopper began his investigation to determine the
cause of the accident. He saw needles on the ground around the Subaru, one of -2- No. 80277-1-I/3
which was uncapped with a substance inside. He believed it may have been what
drug users call “call loading,” where the user draws blood into a syringe and mixes
it with heroin for injection at a later time. The syringe’s plunger was depressed
and appeared to have been mostly used. He also observed a bottle of
hydrocodone inside the Subaru.
In inspecting the accident site itself, Hopper found the Subaru’s front
bumper caught between the motorcycle’s front and rear wheels and no evidence
of any skid marks, suggesting the Subaru’s driver had not braked before impacting
the motorcycle. By 6:18 pm, Sergeant Hopper believed he had probable cause to
arrest Adams for committing vehicular homicide. He believed at that point that
there was sufficient evidence to establish Adams was under the influence of heroin
and caused the accident, leading to Wiger’s death.
Sergeant Hopper learned the paramedics were preparing to transport
Adams to the hospital for medical treatment. He ordered Officer Scrivo to follow
the ambulance to the hospital to place her under arrest and conduct a warrantless
blood draw. Sergeant Hopper decided he needed to remain at the scene to ensure
the scene was safe for police to work in, that traffic was under control, that
everyone injured received appropriate medical care, and that sufficient
investigative personnel were present to interview witnesses, collect evidence, and
take photographs of the scene.
Officer Scrivo spoke to the paramedics before they left to confirm they would
not give Adams anything intravenously while en route to the hospital. Officer
Scrivo left the scene at the same time as the ambulance at 6:19 pm, and they both
arrived at the hospital at 6:24 pm. He immediately placed her under arrest and -3- No. 80277-1-I/4
advised her of her legal rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602 (1966).
Officer Scrivo overheard Adams complain of pain to the emergency room
staff. Given the severity of the collision and the condition and location of Adams’s
car, he believed her complaints of pain to be reasonable. The treatment team was
preparing to conduct their typical blood draws and, based on his experience,
expected Adams to be ordered to undergo X rays and a CT scan. When Adams
asked for some pain medication, he became concerned that this treatment would
affect the evidentiary value of any blood. He ordered a blood draw without
obtaining a search warrant because he did not believe he had the ability to delay
her medical treatment to do so. The phlebotomist conducted the blood draw at
7:07 pm.
Sergeant Hopper testified he had authorized the warrantless blood draw in
this case because of time and personnel constraints. First, he knew Adams was
being taken by ambulance to a hospital for treatment. He believed, given the
circumstances, it was highly likely that Adams’s blood was “imminently” going to
be altered by the medical providers and was concerned the introduction of saline
or drugs into her blood would destroy evidence of vehicular homicide. Second,
Sergeant Hopper also had personnel constraints. He was the supervisor on scene
and he was occupied directing officers in controlling the scene and conducting the
investigation. Officers on scene did not have laptops they could use to prepare a
search warrant request and Sergeant Hopper would have had to leave the
investigation scene to return to the police station to begin that process. Although
he could have returned to the station to prepare a search warrant request, -4- No. 80277-1-I/5
Sergeant Hopper testified it would have taken him one to two hours to complete
the paperwork, locate a prosecutor to review the search warrant, and then find a
judicial officer to consider the request. He concluded he could not obtain a search
warrant before Adams arrived at the hospital and began receiving treatment.
Officer Scrivo similarly testified that in the best case scenario, he could have
obtained a search warrant for Adams’s blood within 40 minutes to an hour. But
because Adams was not in the physical shape to be arrested as in “a typical DUI
arrest” and transported to a hospital for a blood draw after obtaining a search
warrant, but was instead being transported to the hospital for medical treatment
and going to start receiving help she needed immediately, he too felt he could not
delay.
Adams’s blood sample tested positive for high levels of
methamphetamines. In the meantime, officers searching the scene found Adam’s
purse that had fallen out of her car when it flipped. Police subsequently obtained
a search warrant for the purse and found a wallet, inside of which was a baggie
containing a black substance, later confirmed to be 2.9 grams of black tar heroin.
The State charged Adams with vehicular homicide for operating a vehicle
in a reckless manner in violation of RCW 46.61.520(1)(a), or operating a vehicle
while under the influence of drugs in violation of RCW 46.61.520(1)(b), and
causing Wiger’s death. It also charged Adams with possession of heroin in
violation of RCW 69.50.4013.
Adams moved to suppress the results of the blood draw. After hearing
testimony from Sergeant Hopper, Officer Scrivo, and the phlebotomist, Marya
Wargacki, the trial court denied this motion. The court found the State had proved -5- No. 80277-1-I/6
the warrantless blood draw was permissible under the exigency exception of the
warrant requirement:
The scene of the collision was both confusing and chaotic. Someone was dead; Officers needed to ensure other people at the scene were safe, direct rush-hour traffic, secure the scene to preserve evidence, interview witnesses, and review physical evidence. Officers needed time to properly investigate. . . . Officers did not determine that she likely met the elements of vehicular homicide, that is: she was driving, caused the collision, and was likely either reckless or under the influence, until shortly before she left for the hospital at 6:19PM.
Once Adams was taken for treatment, Officers no longer had control over her. Further, they had no authority to order denial of treatment while they processed a warrant application. So, it was a legitimate concern that medical personnel may treat Adams with medication that would taint any evidentiary value of a blood draw.
Although with hindsight, it may have been possible for the Officer to obtain a warrant prior to the blood draw, this is not the standard for how we consider Officers’ actions. The blood draw was completed by 7:07PM, roughly 1.5 hours from the call reporting the accident. Given the officers [sic] self-reported time of 1-2 hours, it may have technically been possible to secure a warrant prior to the blood draw. However, when looking at what officers knew at the time, it was reasonable that they determined an exigent blood draw was necessary. They did not determine probable cause to arrest until shortly before Adams was taken to the hospital at 6:19PM. The blood draw occurred within an hour of her being taken to the hospital. Additionally, this was delayed do [sic] to the difficulty of the blood draw. Given the severity of the case, the time required for the warrant, the natural dissipation of drugs in the blood, the fear that medication would destroy the evidentiary value of the blood, and the lack of control over Adams while she was in the care of medical providers, it was reasonable that Officers determined there was an exigency justifying a warrantless blood draw.
Adams also moved to sever the vehicular homicide charge from the heroin
possession charge. The trial court denied this motion as well. Adams did not
renew her severance motion at the close of evidence and did not object to any of
the State’s proposed jury instructions. The jury found Adams guilty of both charges
and the trial court imposed a sentence of 114 months. -6- No. 80277-1-I/7
Adams appeals the warrantless blood draw, the failure to sever the two
charges, and the sufficiency of the drug possession jury instructions.
ANALYSIS
A. Motion to Suppress
Adams argues the trial court erred when it denied her motion to suppress
the results of her warrantless blood draw. We agree with the trial court that exigent
circumstances justified the warrantless seizure under the circumstances the
officers confronted in this case.
We review a trial court’s legal conclusions on a motion to suppress evidence
de novo. State v. Baird, 187 Wn.2d 210, 218, 386 P.3d 239 (2016). Whether
exigent circumstances existed to justify a warrantless blood draw is a legal
question we review de novo. City of Seattle v. Pearson, 192 Wn. App. 802, 811-
12, 369 P.3d 194 (2016).
Generally, warrantless searches and seizures are presumed to violate the
Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266
(2009). Drawing a person’s blood for drug or alcohol testing is a search triggering
these constitutional protections. Pearson, 192 Wn. App. at 811. A warrantless
search is permissible, however, if exigent circumstances exist. Baird, 187 Wn.2d
at 218. The exigent circumstances exception to the warrant requirement applies
where obtaining a warrant is not practical because the delay inherent in securing
a warrant would compromise officer safety, facilitate escape, or permit the
destruction of evidence. State v. Tibbles, 169 Wn.2d 364, 370, 236 P.3d 885
(2010). -7- No. 80277-1-I/8
The natural dissipation of an intoxicating substance in a suspect’s blood
may be a factor in determining whether exigent circumstances exist, but courts
must look to the totality of the circumstances on a case-by-case basis. Id. And
we judge the situation “from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Missouri v. McNeely, 569 U.S. 141,
158, n. 7, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (quoting Ryburn v. Huff, 565
U.S. 469, 477, 132 S. Ct. 987, 181 L. Ed. 2d 966 (2012)). The State bears the
burden of demonstrating that exigent circumstances justified a warrantless search
by clear and convincing evidence. Baird, 187 Wn.2d at 218; Pearson, 192 Wn.
App. at 811.
Adams first contends the State failed to meet its burden of showing the
existence of exigent circumstances because no medical personnel informed the
police that they intended to introduce any medicine or fluids into her bloodstream
before the draw. But even without such direct evidence, the totality of the
circumstances supports the conclusion that there was a significant likelihood that
Adams’s blood chemistry would be altered by medical treatment and a significant
risk that evidence of her drug use at the time of the accident would be
compromised.
First, Adams had been in a serious car accident in which her car flipped up
onto its side. She was evaluated by paramedics at the scene and they determined
she needed to be taken to the hospital for treatment. Second, when she arrived
at the hospital, she complained of pain and requested pain medication. The
testifying officers stated their experience in similar situations led them to believe
she would receive some type of opiate for pain. Sergeant Hopper believed there -8- No. 80277-1-I/9
was evidence that Adams had used heroin, an opiate. He was reasonably
concerned that administering an opiate to Adams in the hospital would affect law
enforcement’s ability to determine the level of opiates in her system before
receiving such pain medications.
Third, neither Sergeant Hopper nor Officer Scrivo felt it would be
appropriate for law enforcement to interfere with Adams’s emergency medical
treatment. This decision, viewed “from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight,” was a rational one here.
As the trial court pointed out, the officers had no control over the treatment
physicians might deem necessary for Adams or the authority to order the treatment
providers to delay treatment to allow them to obtain a warrant. Their conclusion
that evidence would be destroyed if they did not immediately conduct a blood draw
appeared factually well founded, whether or not hospital staff informed the officers
that Adams needed imminent medical treatment that would alter her blood
chemistry.
Adams next contends the State did not meet its burden of proof because,
by the officers’ own estimate, there was enough time between when they arrived
at the scene and when the blood draw occurred to secure a warrant. On this basis,
Adams seeks to distinguish this case from Division Two’s decision in State v.
Inman, 2 Wn. App. 2d 281, 409 P.3d 1138 (2018). In Inman, two people were
injured in a motorcycle accident on a rural road. Inman, the driver of the
motorcycle, had been briefly knocked unconscious and had sustained serious
injuries to his face. Id. at 284. When police arrived, Inman admitted that he had
been drinking before the accident. Id. at 285. Because a helicopter was coming -9- No. 80277-1-I/10
to medevac Inman and the accident occurred in a rural area without reliable cell
phone coverage, the responding officers concluded that they did not have the
estimated forty-five minutes to obtain a warrant for a blood draw. Id. Division Two
concluded that exigent circumstances supported the warrantless blood draw in that
case. Id. at 293.
Adams correctly points out that Inman is distinguishable from the present
case, the primary difference being the police in Inman lacked reliable cell coverage
to contact a prosecutor in the time before he was flown to a hospital. But the
similarities between Inman and this case are more significant than the differences.
Both defendants were injured in the accident. Id. at 292. Both required and
received emergency medical treatment. And in both cases, the police officers
could not obtain a search warrant before the defendants were removed from law
enforcement’s control by those providing that care. Finally, both cases involved
the risk that the medical treatment could impact the evidentiary value of the blood
sample. Id. at 292.
Adams asks this court to overturn her conviction based on Pearson. But
Pearson is not controlling here. In that case, Pearson, who pulled over and called
police after she struck a pedestrian with her car, was subjected to a warrantless
blood draw and then charged with driving under the influence after her blood
sample tested positive for THC. Id. at 807-809. This court held the City had not
met its burden of demonstrating exigent circumstances existed because the only
justification for failing to obtain a warrant was the concern that the passage of time
would lead to the natural dissipation of THC in Pearson’s bloodstream. Id. at 816.
- 10 - No. 80277-1-I/11
The City failed to present any evidence indicating why they did not obtain a
warrant. Id. at 815.
Here, on the other hand, the State’s offered justification for the warrantless
blood draw goes well beyond the concern that intoxicants in Adams’s bloodstream
would naturally dissipate while they sought a search warrant. Pearson was
uninjured while Adams needed emergency medical care. Police officers put
Pearson through field sobriety tests at the scene. Id. at 807-08. Officers could not
undertake such tests in this case. The Pearson case did not involve a deceased
victim in the middle of a busy intersection at rush hour, with multiple damaged
vehicles and at least one other injured victim. Pearson did not need to be
transported to the hospital via ambulance, whereas Adams did. The most crucial
distinction was the reasonable probability that Adams’s medical care would
imminently alter the composition of her blood, thus destroying evidence.
Adams argues that the warrantless blood draw took place forty minutes after
the police established probable cause, reasonably within the estimated time frame
it would have taken law enforcement to obtain a warrant. But the trial court
correctly concluded this argument ignores the situation these officers confronted
by this chaotic and confusing crime scene and the unknowns regarding Adams’s
physical condition. Sergeant Hopper testified he lacked both the time and the
personnel to address every issue simultaneously and, with medical treatment
imminent, he did not have the time or the ability to obtain a search warrant without
having to force Adams to delay what may have been necessary medical treatment.
These situational restraints, in addition to the lingering risk that Adams’s medical
- 11 - No. 80277-1-I/12
treatment would contaminate the evidence provided by her blood sample, made it
impractical for the officers to obtain a warrant for a blood draw.
We conclude the State established the existence of exigent circumstances
by clear and convincing evidence.
B. Motion to Sever Charges
Adams next argues the trial court erred when it denied her motion to sever
the vehicular homicide charge from the possession of a controlled substance
charge. Adams failed to preserve this issue for appeal.
We review a trial court’s denial of a motion to sever charges for abuse of
discretion. State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994). Severance
is governed by CrR 4.4, which provides in part,
[t]he court, on application of the prosecuting attorney, or on application of the defendant pursuant to subsection (a), shall grant a severance of offenses whenever before trial or during trial with consent of the defendant, the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense.
CrR 4.4(b). Subsection (a) provides that
[a] defendant's motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all the evidence if the interests of justice require. . . . If a defendant's pretrial motion for severance was overruled he may renew the motion on the same ground before or at the close of all the evidence. Severance is waived by failure to renew the motion.
(Emphasis added).
In this case, Adams moved for severance before trial but failed to renew the
motion at the close of the evidence. She therefore waived severance and the issue
- 12 - No. 80277-1-I/13
is not before us on appeal. State v. Bluford, 188 Wn.2d 298, 306, 393 P.3d 1219
(2017).
C. Possession of Controlled Substance Jury Instruction
Finally, Adams argues the trial court erred by failing to instruct the jury that
the crime of possession of a controlled substance includes an element of
knowledge. She contends RCW 69.50.4013(1), the possession statute, must
either be interpreted to require knowledge or be declared unconstitutional. In light
of the Supreme Court’s recent decision in State v. Blake, No. 96873-0, slip op.
(Wash. Feb. 25, 2021), https://www.courts.wa.gov/opinions/pdf/968730.pdf, we
agree.
The State first contends that Adams is precluded from raising this issue for
the first time on appeal under the invited error doctrine because she did not object
to the to convict instructions at trial. This argument lacks merit.
Under the invited error doctrine, a defendant may not challenge for the first
time on appeal, jury instructions which she proposed. State v. Henderson, 114
Wn.2d 867, 868, 792 P.2d 514 (1990). However, the doctrine does not preclude
defendants from challenging on appeal jury instructions the defendant did not
propose. State v. Thomas, 150 Wn.2d 821, 844, 83 P.3d 970 (2004). The State
offers no authority for its contention that a defendant’s failure to object to jury
instructions proposed by the prosecution constitutes invited error. The doctrine
therefore does not preclude Adams from raising the issue here.
The State argues that possession of a controlled substance is a strict liability
crime and that the lack of a mens rea does not render RCW 69.50.4013(1)
unconstitutional, citing State v. Bradshaw, 152 Wn.2d 528, 539-40, 98 P.3d 1190 - 13 - No. 80277-1-I/14
(2004), and State v. Cleppe, 96 Wn.2d 373, 380, 635 P.2d 435 (1981). But the
Supreme Court’s majority opinion in Blake indicates the constitutional issue was
not addressed on its merits in either Bradshaw or Cleppe. Blake, slip op. at 6, n.
4. It went on to hold that the absence of a mens rea element in RCW 69.50.4013(1)
for the crime of possession of a controlled substance violates due process and
renders the statute void. Blake, slip op. at 31. Because the statute is void, we
vacate Adams’s conviction for possession of a controlled substance.
Affirmed in part; reversed in part.
WE CONCUR:
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