State v. Baird

¶1(concurring)

¶2¶45 I concur with the lead opinion that a driver’s refusal to take a breath test is admissible under Washington’s implied consent law as evidence of guilt, but I write separately to emphasize that a breath test, after reasonable suspicion of driving under the influence (DUI) has been established, is a limited and reasonable search; therefore, admitting evidence of a person’s refusal has no constitutional implications. Wash. Const, art. I, § 7; U.S. Const, amend. IV. As the United States Supreme Court recently reaffirmed, “A breath test does not ‘implicatfe] significant privacy concerns.’ ” Birchfield v. North Dakota, _ U.S. _, 136 S. Ct. 2160, 2178, 195 L. Ed. 2d 560 (2016) (alteration in original) (quoting Skinner v. Ry. *230Labor Execs.’ Ass’n, 489 U.S. 602, 626, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989)).

¶3¶46 A Fourth Amendment search does not occur unless “the individual manifested a subjective expectation of privacy in the object of the challenged search” and “society [is] willing to recognize that expectation as reasonable.” California v. Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986) (citing Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); U.S. Const. amend. IV).

¶4¶47 A breath test is much less intrusive than other blood alcohol tests and produces only a limited amount of information. Cf. Maryland v. King, 569 U.S. 435, 446, 133 S. Ct. 1958, 186 L. Ed. 2d 1 (2013). A blood draw, for instance, entails a “physical intrusion beneath [the] skin and into [the] veins to obtain a sample of . . . blood.” Missouri v. McNeely, 569 U.S. 141, 147-48, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (plurality opinion). Beyond this puncturing of the skin, a blood test can produce a much wider array of information than a breath test, such as a person’s DNA (deoxyribonucleic acid) or the presence of certain diseases. In contrast, a breath test simply captures one’s breath and produces a scope of information that is limited solely to a calculation of the alcohol content of the breather’s blood.

¶5¶48 The Fourth Amendment and article I, section 7 share a reasonableness requirement, but article I, section 7 has additional protections for private affairs.9See State v. Valdez, 167 Wn.2d 761, 771-72, 224 P.3d 751 (2009). War-rantless searches are unreasonable per se without a valid exception. State v. White, 135 Wn.2d 761, 769 & n.8, 958 P.2d 982 (1998) (citing State v. Hendrickson, 129 Wn.2d 61, 71, 917 P.2d 563 (1996)). A search incident to arrest is a *231valid exception to the warrant requirement.10 Unlike the case-by-case approach necessary to satisfy the exigent circumstances exception, the search incident to arrest exception is categorical. Birchfield, 136 S. Ct. at 2179; see also State v. Byrd, 178 Wn.2d 611, 623, 310 P.3d 793 (2013) (“Searches of the arrestee’s person incident to arrest extend only to articles ‘in such immediate physical relation to the one arrested as to be in a fair sense a projection of his person.’ ” (quoting United States v. Rabinowitz, 339 U.S. 56, 78, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J., dissenting))). Despite a driver’s subjective expectation of privacy in his or her breath, it cannot be said that society is willing to recognize the reasonableness of that expectation incident to arrest for DUI. Cf. State v. Athan, 160 Wn.2d 354, 372, 158 P.3d 27 (2007) (no privacy interest in saliva used to seal an envelope for mailing).

¶6¶49 Nonetheless, “article I, section 7 prohibits any disturbance of an individual’s private affairs ‘without authority of law.’ ” Valdez, 167 Wn.2d at 772 (citing York v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 305-06, 178 P.3d 995 (2008) (plurality opinion)). “Part of this inquiry focuses on what kind of protection has been historically afforded to the interest asserted, and part of it focuses on the nature and extent of the information that may be obtained as a result of government conduct.” State v. Reeder, 184 Wn.2d 805, 814, 365 P.3d 1243 (2015). Between the long-standing application of the implied consent statute, used to keep streets safe, and the limited information obtained, it cannot be said that an individual’s private *232affairs are disturbed in this case.11 This conclusion is supported by the Court’s Birchfielddecision, which compared a breath test to “ [t] he use of a straw to drink beverages” and recognized that “[n]o sample of anything is left in the possession of the police.” 136 S. Ct. at 2177.

¶7¶50 The search is reasonable under the Fourth Amendment because (1) society is not willing to recognize an expectation of privacy in a reasonably suspicious driver’s breath and (2) a breath test is a minor imposition that is limited solely to collecting information to calculate the alcohol content of the breather’s blood. The limited use of a breath test after arrest does not contravene the safeguards that protect the privacy rights of drivers under the Washington Constitution. With this understanding, I join the lead opinion in saying that a driver’s refusal to take a breath test is admissible as evidence of guilt.