In Part 2 we discussed the constitutional problem concerning admission one’s refusal to submit to a breath or blood test as substantive evidence of guilt. Unfortunately, it seems there is a lack of uniformity among trial courts and judges concerning this issue at this time. But Missouri v. McNeely has caused the law to evolve in other ways as well. In late July 2014 the Court of Appeals of the State of Washington released a new opinion in State of Washington v. Martines. As discussed in Part 2, the court recognized that the extraction of blood is a search. But the court went a step further: It concluded that the testing of the blood is a second search distinct from the blood draw because the purpose is to examine personal information in the blood.   The court held that the state cannot conduct blood tests on blood even lawfully drawn without first obtaining a warrant that authorizes (1) testing; and (2) specifies the type of evidence for which the sample may be tested. In reaching this conclusion the court recognized that blood is different than other kinds of physical evidence (e.g. handwriting, fingerprints, etc.). It recognized that personal information contained in blood is hidden and highly sensitive. Testing of blood can reveal numerous things about an individual. This is not limited to evidence of intoxication, but also disease, paternity, pregnancy, and other genetic information such as ancestry. The court acknowledged that such things are “private medical facts” and that citizens should be entitled to hold this kind of information safe from governmental trespass. Therefore, the court reaffirmed the warrant requirement–concluding that because blood testing is an independent search a warrant is required. Moreover, because a warrant is required two requirements must be met:

• First, there must be probable cause.
• Second, the warrant must have particularity in order to ensure that the scope of the search is limited to search of criminal evidence for which there is probable cause to search for as opposed to other information contained in the blood such as private medical facts.

The court explained for example, that where blood is lawfully drawn in the course of a drunk driving investigation, the state should not be able to use the sample to produce a DNA profile to add to government data banks without a further warrant (which presumably would require independent probable cause for the DNA). After explaining these principles, the Court of Appeals went on to hold that the warrant obtained by the Trooper to seize Martines’ blood did not contain language that authorized testing of the blood for evidence of alcohol and drug intoxication. The warrant did not authorize testing at all. It only permitted the extraction of blood. Nevertheless, the blood was tested in a toxicology lab without any warrant that limited the officer’s discretion in terms of what the blood court be tested for nor limited the blood analysis to evidence of alcohol or drug consumption. As a result, the court concluded the blood analysis was a warrantless search and presumed illegal, no exception to the warrant requirement applied, and the results of the blood draw (blood alcohol level of .121 and valium in blood stream) had to be suppressed. Martines’ felony DUI conviction was reversed. Martines will likely usher in additional challenges to state action and new theories that may provide bases for more creative motions to suppress.