issue in this case is whether a court may require a
probationer convicted of driving under the influence (DUI) to
submit to random urinalysis testing (UAs) for controlled
substances. In particular, this issue centers on whether this
testing violates DUI probationers' privacy interests
under article I, section 7 of our state constitution. Random
UAs do implicate a probationer's reduced privacy
interests. But here, where urinalysis was authorized to
monitor compliance with a valid probation condition requiring
Olsen to refrain from drug and alcohol consumption, the
testing does not violate article I, section 7. Accordingly,
we affirm the Court of Appeals.
facts are undisputed. In June 2014, Brittanie Olsen pleaded
guilty in Jefferson County District Court to one count of
DUI, a gross misdemeanor offense under RCW 46, 61.502. The
court imposed a sentence of 364 days of confinement with 334
days suspended. As a condition of her suspended sentence, the
court ordered that Olsen not consume alcohol, marijuana, or
nonprescribed drugs. Over defense objection, the court also
required Olsen to submit to "random urine analysis
screens ... to ensure compliance with conditions regarding
the consumption of alcohol and controlled substances."
Clerk's Papers (CP) at 5.
appealed to Jefferson County Superior Court, arguing that the
random UAs requirement violated her privacy rights under the
Fourth Amendment to the United States Constitution and
article I, section 7 of the Washington Constitution. She
contended a warrantless search of a misdemeanant probationer
may not be random but instead "must be supported by a
well-founded suspicion that the probationer has violated a
condition of her sentence." CP at 7. The court agreed,
vacated Olsen's sentence, and remanded to the district
court for resentencing without the requirement that Olsen
submit to random urine tests.
State appealed, and the Court of Appeals reversed, holding
that "offenders on probation for DUI convictions do not
have a privacy interest in preventing the random collection
and testing of their urine when used to ensure compliance
with a probation condition prohibiting the consumption of
alcohol, marijuana, and/or nonprescribed drugs."
State v. Olsen, 194 Wn.App. 264, 272, 374 P.3d 1209
(2016). Olsen then petitioned this court for review, which
was granted. State v. Olsen, 186 Wn.2d 1017, 383
P.3d 1020 (2016).
random UAs ordered to monitor compliance with a valid
probation condition not to consume drugs or alcohol violate a
DUI probationer's privacy interests under article I,
section 7 of the Washington Constitution?
Washington State Constitution provides that "[n]o person
shall be disturbed in his private affairs, or his home
invaded, without authority of law." Const, art. I,
§ 7. It is well established that in some areas, this
provision provides greater protection than the Fourth
Amendment, its federal counterpart. York v. Wahkiakum
Sch. Dist. No. 200, 163 Wn.2d 297, 306, 178 P.3d 995
(2008) (plurality opinion).
area of increased protection is the collection and testing of
urine. Id. at 307. Compared to the federal courts,
"we offer heightened protection for bodily
functions."  Id. Washington courts have
generally held that for ordinary citizens, suspicionless
urinalysis testing constitutes a disturbance of one's
private affairs that, absent authority of law, violates
article I, section 7. Id. at 316 (holding that
suspicionless urinalysis tests of student athletes violate
article I, section 7); Robinson v. City of Seattle,
102 Wn.App. 795, 811, 10 P.3d 452 (2000) (holding that
preemployment UAs for jobs that do not directly relate to
public safety violate article I, section 7).
other hand, we have repeatedly upheld blood or urine tests of
prisoners, probationers, and parolees without explicitly
conducting an analysis under article I, section 7. For
example, in In re Juveniles A, B, C, D, E, we upheld
HIV (human immunodeficiency virus) tests of convicted felons
without individualized suspicion, but decided the case under
the Fourth Amendment instead of our state constitutional
provision. 121 Wn.2d 80, 98, 847 P.2d 455 (1993); see
also State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076 (1993)
(DNA (deoxyribonucleic acid) blood testing of convicted
felons). In other cases, lower courts have upheld random drug
testing of probationers or parolees on statutory grounds,
without examining the question under either constitution.
See, e.g., State v. Acevedo, 159 Wn.App. 221, 234,
248 P.3d 526 (2010); State v. Vant, 145 Wn.App. 592,
603-04, 186 P.3d 1149 (2008).
not, however, directly addressed the issue under our state
constitutional provision. Two inquiries are implicit in an
article I, section 7 claim: (1) whether the contested state
action "disturbed" a person's "private
affair[s]" and, if so, (2) whether the action was
undertaken with "authority of law." State v.
Reeder, 184 Wn.2d 805, 814, 365 P.3d 1243 (2015).
"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." Id. (citing State v. Miles,
160 Wn.2d 236, 244, 156 P.3d 864 (2007)).
UAs Implicate a DUI Probationer's Privacy Interests
first look to whether UAs disturb DUI probationers'
"private affairs." More specifically, we consider
whether providing a urine sample is among "'those
privacy interests which citizens of this state have held, and
should be entitled to hold, safe from governmental
trespass.'" Id. (quoting In re Pers.
Restraint of Maxfield, 133 Wn.2d 332, 339, 945 P.2d 196
consistently held that the nonconsensual removal of bodily
fluids implicates privacy interests. York, 163 Wn.2d
at 307; Juveniles, 121 Wn.2d at 90; Olivas,
122 Wn.2d at 83; State v. Curran, 116 Wn.2d 174,
184, 804 P.2d 558 (1991), abrogated on other grounds by
State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997). UAs
implicate privacy interests in two ways. First, the act of
providing a urine sample is fundamentally intrusive. This is
particularly true where urine samples are collected under
observation to ensure compliance. See York, 163 Wn.2d
at 308 ("Even if done in an enclosed stall, this is a
significant intrusion on a student's fundamental right of
privacy."). Second, "chemical analysis of urine,
like that of blood, can reveal a host of private medical
facts about [a person], including whether he or she is
epileptic, pregnant, or diabetic." Skinner v. Ry.
Labor Executives' Ass'n, 489 U.S. 602, 617, 109
S.Ct. 1402, 103 L.Ed.2d 639 (1989). These privacy interests
are precisely what article I, section 7 is meant to protect.
See State v. Jorden, 160 Wn.2d 121, 126, 156 P.3d
893 (2007) ("[A] central consideration [under article I,
section 7] is . . . whether the information obtained via the
governmental trespass reveals intimate or discrete details of
a person's life.").
probationers do not enjoy constitutional privacy protection
to the same degree as other citizens. Probationers have a
reduced expectation of privacy because they are "persons
whom a court has sentenced to confinement but who are serving
their time outside the prison walls." State v.
Jardinez, 184 Wn.App. 518, 523, 338 P.3d 292 (2014);
see also State v. Simms, 10 Wn.App. 75, 82, 516 P.2d
1088 (1973) (parolees and probationers still "in
custodia legis" until expiration of maximum term of
sentence). Therefore, the State may supervise and scrutinize
a probationer more closely than it may other citizens.
State v. Lucas, 56 Wn.App. 236, 240, 783 P.2d 121
(1989); State v. Parris, 163 Wn.App. 110, 117, 259
P.3d 331 (2011). However, "this diminished expectation
of privacy is constitutionally permissible only to the extent
'necessitated by the legitimate demands of the operation
of the parole process.'" Parris, 163
Wn.App. at 117 (internal quotation marks omitted) (quoting
Simms, 10 Wn.App. at 86).
relying on State v. Surge, 160 Wn.2d 65, 156 P.3d
208 (2007) (plurality opinion), the State argues that UAs do
not implicate Olsen's privacy interests because
probationers lack any privacy interest in their urine. We
disagree. Even though misdemeanant probationers have a
reduced expectation of privacy, this does not mean that they
have no privacy rights at all in their bodily fluids.
Surge, we considered the constitutionality of a
statute that authorized the collection of convicted
felons' DNA for identification purposes. Id. at
69. A plurality held that the statute is constitutional,
reasoning that incarcerated felons lack a privacy interest in
their identities due to their status. But Surge is
distinguishable from this case. First, it involved
incarcerated felons, not misdemeanant probationers.
Id. at 72. Further, the lead opinion in
Surge emphasized that the DNA test was only for
identification purposes. Id. at 79 ("the
statute does not unconstitutionally authorize disturbance of
an individual's bodily integrity by allowing the DNA
results to be used for purposes other than identity").
The UAs here gather information beyond the probationer's
identity by analyzing urine for the presence of controlled
substances. Although these tests are meant to enforce
probation conditions, they also collect evidence for possible
revocation hearings, implicating the probationer's
liberty interests. See Simms, 10 Wn.App. at 83-84
(probationers have an interest in their continued liberty).
Surge does not support the State's argument that
DUI probationers lack any privacy interest whatsoever in
even though probationers do not enjoy the same expectation of
privacy as other citizens, the UAs here still implicate their
reduced privacy interests under article I, section 7.
Random UAs of DUI Probationers Do Not Violate Article I,
Section 7 Because They Are Conducted with Authority of
we turn to the second step of our inquiry under article I,
section 7: whether the invasion is performed with authority
of law. The government has a compelling interest in
disturbing Olsen's privacy interest in order to promote
her rehabilitation and protect the public. The random testing
here is narrowly tailored to monitor compliance with a
validly imposed probation condition. Thus, the judgment and
sentence constitutes sufficient "authority of law"
to require random UAs here.
under article I, section 7, an intrusion into an
individual's private affairs is conducted with authority
of law when it is supported by a warrant or a recognized
exception to the warrant requirement. York, 163
Wn.2d at 310. But because probationers have a reduced
expectation of privacy, the State does not need a warrant, an
applicable warrant exception, or even probable cause to
search a probationer. See Lucas, 56 Wn.App. at
243-44. However, as discussed above, probationers do not
forfeit their rights entirely and thus some authority of law
must still justify the intrusion into their reduced
expectation of privacy. See Parris, 163 Wn.App. at
examined what constitutes "authority of law" to
drug test "ordinary citizens, " striking down
suspicionless drug testing of students and other members of
the public. For example, in York, a plurality of
this court held that no authority of law justified drug
testing of student athletes. 163 Wn.2d at 315. We noted that
student athletes' privacy interests differ from those of
convicted offenders, as students have "merely attended
school and chosen to play extracurricular sports."
Id.; see also Kuehn v. Renton Sch Dist No, 403, 103
Wn.2d 594, 602, 694 P.2d 1078 (1985) (plurality opinion)
(school officials violated article I, section 7 when they
mandated across the board search of luggage as a condition of
participating in band concert tour). The lead opinion also
declined to adopt a doctrine akin to the federal
"special needs" exception in the context of
randomly drug testing student athletes. York, 163
Wn.2d at 316; see also Griffin v. Wisconsin, 483
U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)
(defining the federal "special needs" exception).
probationers are distinguishable from student athletes. Olsen
was convicted of a crime and is still in the State's
legal custody. Simms, 10 Wn.App. at 82. She has a
duty to engage in her rehabilitation in exchange for the
privilege of being relieved from jail time and "should
expect close scrutiny" of her conduct. Lucas,
56 Wn.App. at 241; see also City of Spokane v.
Marquette, 146 Wn.2d 124, 132, 43 P.3d 502 (2002). Her
privacy interests are more constrained than those of a
student athlete or a performer.
of this court have suggested a balancing test may be
appropriate to evaluate whether there is "authority of
law" in these circumstances. In Surge, Justice
Fairhurst suggested a compelling interests test, stating that
"[o]utside the law enforcement context, this court
applies a two-part, narrowly tailored compelling state
interest test to determine whether state intrusions of
autonomous decision making privacy interests were conducted
under authority of law." 160 Wn.2d at 91 (Fairhurst, J.,
concurring in the dissent); see also Juveniles, 121
Wn.2d at 97-98; State v. Farmer, 116 Wn.2d 414,
430-31, 805 P.2d 200 (1991); Robinson, 102 Wn.App.
at 816-18. In York, Justice J.M. Johnson suggested a
similar test, noting that "a constitutional program of
random suspicionless drug testing of student athletes should
advance compelling interests, show narrow tailoring, and
employ a less intrusive method of testing." 163 Wn.2d at
342 (J.M. Johnson, J., concurring).
these considerations useful here, in light of
probationers' significantly reduced expectation of
privacy and the unique nature and rehabilitative goals of the
probation system. We therefore examine whether a compelling
interest, achieved through narrowly tailored means, ...