Collaboration in Civic Spheres

King County DUI plea deal with Renton driver accents recent U.S. high court constraints on blood alcohol tests

by Matt Rosenberg July 16th, 2013

Because of an April U.S. Supreme Court ruling normally barring consideration of blood alcohol tests done without search warrants, says a King County Prosecuting Attorney’s Office official, a 20-year-old Renton woman who ran into a man in a wheelchair at a crosswalk and who had levels of alcohol and marijuana in her blood that exceeded legal limits, got off last Friday with misdemeanor convictions and related sentences rather than facing the original felony charges. On July 12 at the Maleng Regional Justice Center in Kent, King County Superior Court Judge Andrea Darvas finalized a plea deal between the county and attorneys for defendant Emily Sue Falkenstein resulting in her conviction on misdemeanor charges of driving under the influence and reckless endangerment rather than the original felony charges of vehicular assault and felony reckless endangerment. That’s directly because prosecutors were unable to use blood tests taken shortly afterward due to the April high court ruling in the case of Missouri v. McNeely, said Ian Goodhew, Deputy Chief of Staff to King County Prosecutor Dan Satterberg.

The Supremes found that if police can reasonably get a judge’s warrant before requiring an unwilling drunk driving suspect to take a blood alcohol test, they should, and that test results showing blood alcohol levels can be barred as evidence lacking that authorization.

Falkenstein lives in the 5200 block of NE 3rd Street in Renton. In the tan and gold Hyundai Elantra she was driving last December in the 800 block of Union Ave. N. in Renton she hit Gregory Ramirez, 48, as in his motorized wheelchair with his six-year-old niece in his lap he traversed what police reports called “a clearly painted and visible” well-lit crosswalk. Ramirez suffered a compound fracture to his tibia/fibula plus chest contusions, and his niece a head contusion. Both eventually recovered, but Renton Police traffic investigator Jeanna Barrett wrote in a court probable cause certification statement that she was dispatched to the accident site and there was an “overwhelming odor of marijuana” as she approached Falkenstein’s vehicle.

Barrett also noted in her report that Falkenstein’s behavior was “erratic” including “drastic mood swings” and “screaming and yelling.” The test done on Falkenstein two-and-a-half hours after the accident, without a warrant, showed she had blood alcohol content of .098 – or “four times the limit for persons under 21,” according to the bail request signed by prosecutors. That document also states that her THC blood level was 5.4 nanograms per milliliter, which exceeds the new limit under Washington’s legal marijuana law. With such a combination, “the impairment is exponential” wrote prosecutors. They also added that based on their discovery in the vehicle of marijuana and drug paraphernalia it appears Falkenstein had secured medical marijuana.

“We lost our best evidence”
Prior to McNeeley Washington law permitted blood tests of impaired driving suspects without warrants under the principle of implied consent granted when getting a driver’s license. But as the prosecution unfolded in King County Superior Court, the McNeely ruling was issued and, said Goodhew, “We lost our best evidence so we had to reduce the charge.”

According to a report by the Washington Post on the ruling – via the Seattle Times – when Tyler McNeely was stopped in Cape Girardeau County, Missouri in early October, 2010, his speech was slurred, he had alcohol on his breath, and could not pass a field sobriety test but refused two times to take a breathalyzer test. Arrested and in transport to jail he was given a blood alcohol test at a hospital at the officer’s order. Both the state and the U.S. government sought to uphold the right to implied consent tests of DUI suspects without warrants but the land’s highest court took an opposite stance, as had the Missouri Supreme Court.

The U.S. ruling “has massive system-wide implications on all blood draw cases,” Goodhew continued. “It will take officers on average one to two hours longer to get a warrant to get the blood, which means diminishing returns on the results, the longer the booze or marijuana has to wear off. Also, finding and getting judges to get you warrants at two or three in the morning can be difficult, there are only so many of them that can respond.”

What are “exigent” circumstances?
In special, or “exigent” circumstances, police can still mandate a blood test without a warrant, such as when initial police reports clearly support a “heightened risk of loss of evidence or serious present injury,” said Goodhew. He added this could be when an accident victim including a drunk driver is seriously injured, hospital-bound and likely to be pumped full of other drugs “thereby obliterating what was in their system.”

Falkenstein did not rise to the level of “exigent,” Goodhew said, because despite the victim injuries on-scene, there was no ongoing risk of further injury and because, he asserted, the “initial description by the initial officers” did not indicate evidence of marked driver impairment, even though that was later ascertained. In short, there proved to be diminished odds of prevailing in court without a warranted BAC test, Goodhew said.

In a statement released right after the April 2013 McNeely decision, the national advocacy group Mothers Against Drunk Driving (MADD) contended, “The Court’s ruling will have severe day-to-day implications, since more than 1.4 million people are arrested each year for driving under the influence, and 1 out of every 5 drivers arrested for suspicion of DWI refuses to take a BAC test. This high refusal rate remains a major obstacle to enforcing drunken driving laws and preventing drunk driving. The severity of the drunken driving problem in this country cannot be underestimated. The Supreme Court’s decision will hamper efforts to combat drunk driving by interfering with law enforcement’s ability to obtain convictions, which is essential to the prevention of drunk driving and protecting public safety.”

Solutions needed
Amy Ezzo, MADD’s Washington State Manager, said Monday the McNeely ruling underscores the need for a solution that will result in quick issuance by judges of warrants to conduct blood tests of impaired driving suspects, and that communications technology will need to be central to the solution.

Washington state prosecutors, state impaired driving program officials, and advocacy group leaders are working on that. “We are looking into developing a pilot program statewide that would allow warrants to be issued electronically” said Shelly Baldwin, Impaired Driving Program Manager for the Washington Traffic Safety Commission.

Role of dispatchers
Courtney Popp, Traffic Safety Resource Prosecutor for the State of Washington said the near-term response which becomes even more important since the McNeely ruling will be, for officers needing warrants to execute BAC tests, to have their dispatchers reach by phone a local or district court judge, particularly during late hours. The judge then hopefully agrees to receive the warrant request via email from the officer’s computer-equipped patrol cars, and within 10 to 15 minutes give an official OK, Popp said. Sometimes though it can take up to 10 calls to reach a judge in King County, Popp said she has learned.

Eventually: Statewide system with clearly designated night-duty judge
More long-term, Washington could explore a statewide electronic warrant system such as in Utah and elsewhere, said Popp, where each night there is one clearly designated judge standing ready statewide to promptly process incoming BAC test warrant requests from officers in the field, through the wee hours when so many incidents occur.

Near-term pilot test plans would likely involve accelerated email processing of the BAC test warrant requests with dispatcher calls as needed, in several different jurisdictions across the state, Popp added.

Home detention, work release, drug testing for Falkenstein
Falkenstein had no prior criminal convictions. Her 364-day sentence on her misdemeanor DUI charge was suspended under the plea deal. She will serve 30 days in electronic home detention and five years probation. On the second non-felony conviction, for reckless endangerment, she gets 15 days in work release, meaning nights in jail. She will pay emergency response costs of $2,500, plus at least $600 in a DUI fine, and restitution to her victims. She’ll also have to refrain from using alcohol, marijuana on non-prescription drugs. This will be enforced through two mandatory urinalysis tests per week for six months and then one monthly for another half year.


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