Driving Under the Influence, DUI, DWI, Drunk Driving Lawyer serving Island County, Seattle, King County, Bellingham, Mt. Vernon, Oak Harbor, Coupeville, Snohomish County, Skagit, and Whatcom County discusses how Division One got it terribly wrong in State v. Mecham.
Judges are lawyers. Lawyers are only human. The black robe does not make a human infallible. Division One issued an opinion on April 21, 2014 that is terribly wrong. Let's hope it reaches the Supreme Court of Washington. Such bad law should not remain in existence too long.
In State v. Mecham, Division One of the Washington Court of Appeals held that field sobriety tests are justified under the Terry stop exception to the warrant requirement. State v. Mecham, slip opinion at 10. The court assumed for purposes of its opinion, that field sobriety tests constitute a search under article I, section 7 and the Fourth Amendment. Id. at 8. The court acknowledged that all warrantless searches are presumed unlawful. Id. It then pointed out that Terry v. Ohio persons a brief investigative detention without a warrant. It further explained that a Terry stop is lawful if the State can point to specific and articulable facts giving rise to a reasonable suspicion that the person stopped is engaged in criminal activity. The court then reasoned that Mecham showed clear signs of intoxication that supported a reasonable suspicion for DUI. Division one explained that the "...degree of intrusion is not excessive and a field sobriety test is an appropriate technique to measure the suspect's intoxication." Id. at 9. The court then concluded that a "...field sobriety test is a brief and reasonable method for determining whether an individual is intoxicated. Therefore, according to Division One, "even if the field sobriety tests constituted a search, it was reasonable based on the totality of the circumstances." Id. at 10. As a result, it concluded field sobriety tests are justified under the Terry stop exception to the warrant requirement.
This reasoning and the conclusion based on such reasoning are terribly wrong. It is sad that the humans sitting as appellate judges appear to have not listed in their criminal procedure class as law students are declined to actually read Terry v. Ohio at all. Terry v. Ohio only approved limited pat-downs for weapons and brief on-the-spot questioning, but disapproved of more intensive seizures. Terry v. Ohio, 392 U.S. 1, 26, 88 S.Ct. 1868, 188 (1968); United States v. Robertson, 833 F.2d 777, 780 (9th Cir. 1987); State v. Williams, 102 Wash.2d 733, 737, 689 P.2d 1065, 1068 (1984). Any further intrusion must be done incident to arrest supported by probable cause or pursuant to warrant. Terry does not allow police to essentially force persons to engage in "unusual physical maneuvers that require balance and coordination...to reveal information about the suspect's medical condition or physical disabilities." Mecham, slip opinion at 9.
Furthermore, the Mecham court framed the issue incorrectly. It claimed the issue "turns on whether a field sobriety test constitutes an unreasonable search." Id. at 7. This may be consistent with a Fourth Amendment analysis, but not article I, section 7. Division One ignored the significance of the evolution of article I, section 7 jurisprudence. Article I, section 7 creates an "almost absolute bar to warrantless arrests, searches, and seizures." State v. Valdez, 167 Wash.2d 761, 772, 224 P.3d 751 (2009); State v. Ringer, 100 Wash.2d 686, 690, 674 P.2d 1240 (1983), overruled on other grounds by State v. Stroud, 106 Wash.2d 144, 150-151, 720 P.2d 436 (1986); State v. Monaghan, 165 Wash.App. 782, 787, 266 P.3d 222 (Wash. Ct. App. 2012); State v. Swetz, 160 Wash.App. 122, 129, 247 P.3d 802 (Wash. Ct. App. 2011); State v. Reid, 38 Wash.App. 203, 208, 687 P.2d 861 (Wash. Ct. App. 1984); Justice Charles W. Johnson & Justice Debra L. Stephens, SURVEY OF WASHINGTON SEARCH AND SEIZURE LAW: 2013 Update, 36 Seattle U.L. Rev. 1581, 1695 (2013). This different from and goes beyond the rule that warrantless searches and seizures are per se "unreasonable" under the Fourth Amendment. article I, section 7 is not concerned with "reasonableness." Snapp, 174 Wash.2d at 194 ("article I, section 7 is not grounded in notions of reasonableness."); State v. Afana, 169 Wash.2d 169, 233 P.3d 879 (2010) ("...we do not ask whether the officer's belief that this disturbance was justified was objectively reasonable, but simply whether the officer had the requisite 'authority of law.'"); State v. Valdez, 167 Wash.2d 761, 772, 224 P.2d 751 (2009) ( "where the Fourth Amendment precludes only 'unreasonable' searches and seizures without a warrant, article I, §7 prohibits any disturbance of an individual's private affairs 'without authority of law.' The language prohibits not only unreasonable searches, but also provides no quarter for ones which, in the context of the Fourth Amendment, would be deemed reasonable searches and thus constitutional." (internal citations omitted)). Unlike the Fourth Amendment, article I, section 7 also does not operate on a downward ratcheting mechanism of diminishing expectations of privacy. State v. Ladson, 138 Wash.2d 343, 349, 979 P.2d 833 (1999).
Accordingly, Division One was incorrect to frame the issue as dependent "on whether a field sobriety test constitutes an unreasonable search." State v. Mecham, slip opinion at 7. Reasonableness is not appropriate under an article I, section 7 analysis. Division One was also wrong to essentially reason that field sobriety tests do not offend article I, section 7 because "the degree of intrusion is not excessive and a field sobriety test is an appropriate technique...." Id. at 9. Article I, section 7 does not operate based on levels of diminishing expectations of privacy.
Beyond these major problems, the opinion is also laced with other smaller issues and legal flaws. Division One cites State v. Wheeler for the proposition that "the degree of intrusion must also be appropriate to the type of crime under investigation and the probable dangerousness of the suspect. Id. at 9. It used this isolated context free proposition to justify its holding. Wheeler concerned the scope of a Terry DETENTION and NOT THE SCOPE OF A TERRY FRISK! The analysis concerning the scope of a Terry stop or investigative detention is totally separate from an analysis concerning the proper scope of a Terry frisk or search done incident to a Terry stop!
The reasoning in the Mecham opinion is terribly flawed. It demonstrates poor reasoning, terrible legal analysis, and lack of intellectual honesty. Unfortunately, this opinion will have the effect of eroding delicate fundamental rights. It will further perpetuate the "guilty unless proven innocent" mentality as the court further held that the state may offer one's refusal to perform field sobriety tests as evidence of guilt. Id. at 12. Therefore, a person who may have a valid reason (e.g. disability, tired or sore legs, illness, unfavorable conditions, danger presented by passing cars, nervousness, etc.) for declining field sobriety tests will essentially be punished for making intelligent decisions as the state will be able to claim that their decision indicates that they are guilty of DUI--because they were unwilling to prove sobriety by performing circus tricks.
Part Two will look at Mecham's holding that refusal to submit to field sobriety tests may be offered as evidence of guilt.
Contact Platt & Buescher today at (360) 678-6777 or (206) 569-8630 to discuss your DUI charge and what a DUI defense attorney can do for you.