Why Informed Consent For Green DUI is Uniformed

Why are blood draws for cannabis DUI in Washington State unconstitutional? The answer is a journey. It relies on constitutional underpinnings of warrantless searches and winds it way through what is consent. It ends with, when is consent freely, voluntarily and knowingly given?

First and foremost, the court has held that warrantless searches are per se unreasonable and violate the Fourth Amendment. However, there are a few carefully drawn exceptions to the warrant requirement, including consent. Most defense lawyers would agree that “consent” is the mother-of-all-waivers. With consent, fall so many constitutional rights.

The next stop on the road to consent is an important one: consent based on misleading information provided by law enforcement is not valid consent. Since a blood draw constitutes a search, the State must then establish that the person’s consent to that test was voluntary under prevailing case law.  Washington law enforcement typically rely on the Implied Consent law to obtain the necessary consent to a warrantless blood draw in DUI investigations. The Washington Court’s have held, “Washington’s implied consent law creates a statutory presumption that anyone arrested for driving under the influence of alcohol has consented to a breath or blood test for purposes of determining the level of alcohol.” A driver may withdraw hisConsent consent and refuse to be tested unless unconscious or under arrest for vehicular homicide or assault, or DUI where there has been serious injury to a third party.

A driver’s decision to submit to a breath or blood test must further be knowing and intelligent. To this end, the Implied Consent statute requires that police officers warn drivers of their right to refuse a breath test and various consequences of a refusal to assure the voluntariness of the consent. The implied consent form is one that law enforcement has an individual sign before subjecting the individual to a blood draw. On the implied consent warning currently provided by most law enforcement agencies in Washington, it lists as one of the consequences that a driver’s refusal to consent to a warrantless breath test “may be used in a criminal trial.”

However, we argue that this provision of the Implied Consent statute is unconstitutional. It is well established that, when a defendant has invoked his constitutional right to refuse a warrantless search, the prosecution may not comment, or the defendant’s due process rights to a fair trial are violated. A comment on the exercise of a right to refuse a search is akin to comments on the exercise of other constitutional rights.

If the government is allowed to comment on a person’s refusal to consent to a warrantless search as evidence of wrongdoing, an unfair burden is placed upon the assertion of a constitutional right and future consents would not be voluntarily given.

I should point out, despite these obvious constitutional principals and case law, this has not prevented the government from commenting on the innocence of an accused person for the last several years. How, you ask? In closing, the Prosecutor stands up and says, “If Mr. Smith is innocent, why didn’t he take the blood test? Why did he refuse the test? What was Mr. Smith hiding? Is it because Mr. Smith knew he was guilty?” Our favorite argument from the government, “if you have nothing to hide…” Deputy Prosecutor’s, across Washington State, have used refusal of the blood test as consciousness of guilt.

In a very recent case, Gauthier, the State used the defendant’s refusal to consent to the warrantless search and seizure of his DNA as substantive evidence. The Gauthier court held that the State violated the defendant’s constitutional rights.  The Gauthier court reasoned that “[e]xercising the right to refuse consent to a warrantless search may have had nothing to do with hiding guilt” and that “a jury should not have been allowed to infer guilt in such ambiguous circumstances, particularly involving the exercise of a constitutional right.”  The Court observed that “circuit courts that have directly addressed this question have unanimously held that a defendant’s refusal to consent to a warrantless search may not be presented as evidence of guilt.”

The Washington Supreme Court has also indicated that using refusal to consent to a search as evidence of guilt is unconstitutional.  In Jones, a police officer testified that the defendant refused to take a DNA test and only provided a cheek swab after court order.  In closing, the State reiterated and emphasized that refusal.  Mr. Jones argued on appeal that these comments constituted prejudicial misconduct.  Though the Court reversed Mr. Jones’ conviction on other grounds, it nevertheless addressed Mr. Jones’ misconduct argument. The court explained that the comments were improper because Mr. Jones had “a Fourth Amendment right to refuse to provide a DNA swab sample,”  and emphasized that “the court’s imprimatur is now upon the State and that such argument is improper and should not be repeated on remand.”   In short, the Court believes that such comments are a violation of the defendant’s constitutional rights.

Gauthier and Jones teach us that using a driver’s refusal to consent to a warrantless breath test as part of a criminal trial is unconstitutional.  That portion of the implied consent warnings that require police officers to warn drivers that a refusal to submit to a warrantless breath test may be used against them in a later criminal trial is therefore also unconstitutional on its face.

In Washington, often the Trooper warns, prior to administering the blood test, that if the test is refused, that refusal may be used in a criminal trial. More importantly, it will be used as evidence of a “guilty mind.” As a result, the person then consented to a Marijuana DUIwarrantless blood draw based on the Police Officer’s misrepresentation of the law.  Defendant’s throughout Washington have been misled to believe that their refusal may be used again them in a criminal trial. Because consent is based on misleading information provided by law enforcement, and because the Implied Consent Warning does not state the law correctly, people accused of Cannabis DUI have provided consent that was neither voluntary nor “knowing and intelligent.” Although courts have not all agreed that this is the case, they should. It is clear from the case law that Washington Law Enforcement has wrongfully advised defendants and should correct their informed consent warnings to comport with the law.

Needless to say, this is not the only issue before the courts on cannabis DUI. Ted Vosk is spearheading the defense against  junk science of the toxicology lab, by not providing confidence intervals. There is also a group of cases going up on appeal that the five nanogram limit is arbitrary, capricious and unconstitutional (more on this case in a future post). There is number of other arguments brewing and we will continue our pursuit to prevent medical cannabis patients from being arrested and prosecuted without a single shred of meaningful evidence that their driving was actually appreciably affected by cannabis. In the end, five nanograms is not a meaningful number and we will keep fighting to put that in the ground.


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