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Blomstrom v. Tripp

Supreme Court of Washington, En Banc

October 5, 2017

The Honorable GREGORY J. TRIPP, in his official capacity as a Spokane County District Court Judge, and the SPOKANE COUNTY DISTRICT COURT, Respondents. BROOKE M. BUTTON, Petitioner,
The Honorable GREGORY J. TRIPP, in his official capacity as a Spokane County District Court Judge, and the SPOKANE COUNTY DISTRICT COURT, Respondents. CHRISTOPHER V. COOPER, Petitioner,
The Honorable GREGORY J. TRIPP, in his official capacity as a Spokane County District Court Judge, and the SPOKANE COUNTY DISTRICT COURT, Respondents.

          WIGGINS, J.

         This case involves three driving under the influence (DUI) defendants challenging their pretrial urinalysis testing conditions. Each defendant was arrested for DUI, and each was ordered to participate in random urinalysis testing as a condition of pretrial release. The defendants challenged their testing conditions by petitioning for a writ of review with the Spokane County Superior Court. The superior court denied the applications for a writ.

         We reverse the decision of the superior court. We hold that Cortney Blomstrom, Brooke Button, and Christopher Cooper are entitled to statutory writs of review because they lack an adequate remedy at law to challenge their pretrial release conditions and because their urinalysis testing requirements contravene article I, section 7 of the Washington State Constitution.


         Each of the three petitioners was arrested for driving under the influence (DUI). Two petitioners had high blood alcohol concentrations (BAC) but no previous DUI arrests, while the third petitioner had allegedly used marijuana and had a previous DUI conviction.

         A. Blomstrom

         Cortney Blomstrom was arrested for DUI on February 1, 2015.[1] Clerk's Papers (CP) at 39. A breath test showed a BAC[2] of 0.191 and 0.184. Verbatim Report of Proceedings (RP) Feb. 2, 2015 (RP Blomstrom) at 1. Blomstrom had no criminal record. Id. at 2.

         At Blomstrom's first appearance, the State requested four times monthly random urinalysis testing as a condition of release. Id. The State pointed to a series of studies by the United States Department of Transportation's National Highway Traffic Safety Administration (NHTSA), which found that an individual with a BAC over 0.15 is "fa[r] more likely to be involved in a fatal car crash as well as more likely to reoffend."[3] Id. Blomstrom objected, citing her lack of criminal record and arguing that the other conditions-requiring "nonuse, possession, or consumption [of alcohol and drugs]"-were adequate to protect public safety. Id.

         The court imposed twice monthly random urinalysis testing, concluding that

[b]ecause of the high BAC, because of the facts of this case, because of the argument of counsel I do find that there is a likelihood that you would reoffend and . .. possibly believe consuming alcohol would be a risk to public safety as well.

Id. at 3. The court further ordered Blomstrom to abstain from possessing or using any alcohol or unprescribed drugs. Id.

         B. Cooper

         Christopher Cooper was arrested for DUI on February 7, 2015. CP at 26. The arresting officer noted an open bottle of whiskey on the floorboard, about a quarter empty; Cooper allegedly admitted "that he had just come from a bar." RP Feb. 9, 2015 (RP Cooper) at 2. Cooper's breath test registered a BAC of 0.175 and 0.174. Id. at 1. Cooper had never been convicted of an alcohol- or drug-related offense and had no prior DUI arrests. CP at 26-28.

         At Cooper's first appearance, the State requested four times monthly random urinalysis testing as a condition of release. RP Cooper at 1. Again, the State relied on the NHTSA studies "indicating that above a .15 [BAC] an individual is far more likely to both reoffend and be involved in a fatal accident." Id. at 2. The State also suggested that Cooper's "pretty lengthy driving record ... would warrant testing." Id. at 3.

         Cooper's counsel objected, arguing that "there's no indication he wouldn't follow the Court's orders not to use, possess, or consume [alcohol] or that he would be a danger to society or reoffend . . . ." Id. Counsel further objected to the testing requirements "on State v. Rose[4] grounds." Id.

         The court imposed four times monthly urinalysis testing based on Cooper's "record[, ] ... the studies which [the prosecutor] has indicated, [and] the high blow which is more than two times the legal limit." Id. at 5-6. In light of these findings, the court concluded that "we have to put something in place that will reduce the danger to the community . . . under [Criminal Rules for Courts of Limited Jurisdiction (CrRLJ)] 3.2(d)(10). So, that's what I'm going to do in this case." Id. The court further ordered Cooper to abstain from all use or possession of alcohol or unprescribed drugs. Id. at 5-6. The court noted that Cooper could ask the court to reconsider the conditions imposed "at any time." Id. at 6.

         C. Button

         Brooke Button was arrested for driving under the influence of marijuana. RP Mar. 2, 2015 (RP Button) at 3. Button was arrested over the weekend, at which point probable cause was determined and initial pretrial release conditions were purportedly imposed.[5] Id. at 1. Button's first appearance in court was on the following Monday. Id.

         Button's criminal record largely consisted of minor theft and driving infractions, as well as a 2009 conviction for DUI in Idaho.[6] CP at 92-94; RP Button at 3. There was no evidence concerning the nature of the substance involved in Button's 2009 DUI conviction. RP Button at 5. Button also had three previous charges for failing to install an ignition interlock device (IID)[7] in 2011. CP at 92-94.

         At Button's first appearance, the State requested four times monthly random urinalysis testing. RP Button at 2. The State emphasized Button's prior DUI conviction, and described the three charges for failing to install an IID as "a bit troubling ... from the position of whether or not she's going to follow court orders not to use, possess, or consume" alcohol or drugs. Id. at 5. Button's counsel objected, noting that "there was no alcohol in this allegation. It was strictly a marijuana allegation." Id. at 4. Counsel requested that the court not impose the testing requirement. Id.

         The court agreed with the State that four times monthly urinalysis testing was appropriate:

I am going to order testing based upon the prior [DUI]... and the recency in time and all the other facts that I find to be the facts for the purpose of this hearing as stated by [the prosecutor] and so, you're to contact Absolute Drug Testing within 24 hours for random four times a mont[h] testing. This is based upon [CrRLJ] 3.2 as well as RCW 10.21.030 which allows for that testing and . . . frankly the . .. likelihood of her reoffending. The fact that we've ha[d] three arrests for the ignition interlock violation also is an indication to the Court [that] there should be some . . . testing.

Id. at 5-6. However, the court concluded that an IID was unnecessary "because it's not clear to me that both [the current and prior offense] involved alcohol." Id. at 6. The court removed the IID requirement from Button's pretrial release conditions. Id.

         D. Applications for Writ of Review

         The petitioners subsequently challenged their pretrial release conditions by applications for a statutory writ to the superior court.[8] CP at 1-2, 32-33, 60-61. The petitioners also filed largely identical supporting memoranda. Id. at 3-21, 40-56, 62- 84. These memoranda challenged the petitioners' urinalysis testing conditions as violations of CrRLJ 3.2(a), the Fourth Amendment to the United States Constitution, and article I, section 7 of the Washington Constitution. Id. at 4, 41, 63.

         The superior court rejected the applications for a writ in identical orders. CP at 98, 102, 106. The court declined to comment on the legality or constitutionality of the district court's release conditions, concluding instead that a statutory writ was inappropriate because another, adequate remedy was available: "[T]he challenge can only be undertaken by a [Rules for Appeal of Decisions from Courts of Limited Jurisdiction (RALJ)] appeal if [the petitioners] are convicted or plead guilty to the charges." Id. at 101.

         The petitioners jointly filed a motion for discretionary review of the superior court's decision to this court. Mot. for Discr. Review at 1. The petitioners claimed that the superior court erred in two respects: (1) in finding that the petitioners possessed an adequate remedy in the form of a RALJ appeal and (2) in failing to find that the pretrial release conditions were unconstitutional under state and federal law. Id. at 1-2. The petitioners did not challenge the district court's compliance with CrRLJ 3.2 or the validity of any statute that might authorize the imposition of the urinalysis testing conditions. Id.; see also Pet'rs' Reply Br. (Reply Br.) at 5 ("The petitioners never directly challenged the constitutionality of any statute or court rule, only the district court's orders."). We granted review of the motion without exception.


         We review de novo a superior court's decision whether to grant a statutory writ of review. City of Seattle v. Holifield, 170 Wn.2d 230, 240, 240 P.3d 1162 (2010). Constitutional issues are questions of law that we also review de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012).


         The parties dispute whether the petitioners are entitled to statutory writs of review. A writ shall issue if (1) "an inferior tribunal. . . has exceeded [its] jurisdiction" or otherwise acted "illegally" and (2) "there is no appeal, nor. . . any plain, speedy and adequate remedy at law." RCW 7.16.040. "Unless both elements are present, the superior court has no jurisdiction for review." Commanda v. Cary, 143 Wn.2d 651, 655, 23 P.3d 1086 (2001). We recently clarified that a tribunal acts "illegally" when it

(1) has committed an obvious error that would render further proceedings useless; (2) has committed probable error and the decision substantially alters the status quo or substantially limits the freedom of a party to act; or (3) has so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of revisory jurisdiction by an appellate court.

Holifield, 170 Wn.2d at 244-45.

         Whether RCW 7.16.040 provides for a statutory writ in a given circumstance is a question of statutory interpretation. Id. Our goal in interpreting a statute is to carry out the legislature's intent. Burns v. City of Seattle, 161 Wn.2d 129, 140, 164 P.3d 475 (2007); see also Hama Hama Co. v. Shorelines Hr'gs Bd., 85 Wn.2d 441, 445, 536 P.2d 157 (1975). We begin with the plain meaning of the statute. See Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). In doing so, we consider the text of the provision, the context of the statute in which the provision is found, related provisions, amendments to the provision, and the statutory scheme as a whole. Id. at 10-11. If the meaning of the statute is plain on its face, then we must give effect to that meaning as an expression of legislative intent. Id. If, after this inquiry, the statute remains ambiguous or unclear, it is appropriate to resort to canons of construction and legislative history. Id. at 12.

         Here, the petitioners assert that they lack an adequate remedy at law and that the district court committed probable error by requiring urinalysis testing and IID installation, which they claim violated article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. Pet'r's Opening Br. (Blomstrom Br.) at 13. The parties do not dispute that the district court's orders substantially limited the freedom of the petitioners to act. Id. (claiming that the freedom of the parties to act was substantially limited); see also Br. of Resp'ts at 26 (State Br.) (declining to address the issue).

         Before addressing the substance of the petitioners' claims, we must first dispose of two threshold concerns: first, whether any party has standing to challenge searches by means of IIDs, as opposed to searches by means of urinalysis testing, and second, whether the petitioners' constitutional challenges were adequately preserved by objection in the district court.

         I. The Petitioners Lack Standing To Challenge IIP Requirements

         Generally, "[a] person has standing to raise constitutional questions when his interest is a 'personal stake in the outcome of the controversy.'" Marchioro v. Chaney, 90 Wn.2d 298, 303, 582 P.2d 487 (1978) (internal quotation marks omitted) (quoting DeFunis v. Odegaard, 82 Wn.2d 11, 24, 507 P.2d 1169 (1973). That is, a person challenging a government action must be adversely affected by that action. See Citizens Council Against Crime v. Bjork, 84 Wn.2d 891, 893, 529 P.2d 1072 (1975). Thus, in order to challenge an IID search as unconstitutional, at least one of the petitioners in this case must be personally affected by such a search.

         The State asserts that "none of the [petitioners] were subject to an ignition interlock requirement."[9] State Br. at 9. This is not strictly accurate. One petitioner, Button, was briefly subject to an IID requirement. This order applied between the time of her arrest over the weekend and the time of her first appearance on Monday; at Button's first appearance, the trial court removed the IID. See RP Button at 2 (failing to identify who imposed the initial order); see also id. at 6 ("I'm not going to order the ignition interlock device at this time . . . ."). While Button was not the subject of an IID search before the requirement was removed, the petitioners claim that this weekend order constitutes grounds for challenging the IID requirement. Reply Br. at 6-7. There are three main problems with this argument.

         First, when Button filed her application for a writ of review, no IID requirement existed.[10] See CP at 61. Judge Tripp had already withdrawn the condition at Button's first appearance. RP Button at 6. Button thus purports to challenge an order already revoked before her complaint was lodged.[11]

         Second, Button's application for a writ of review did not mention an IID requirement. CP at 61. We note that Button's memorandum in support of the writ application ambiguously challenged "the release conditions imposed upon the defendant to subject himself [sic] to an ignition interlock device and/or alcohol monitoring." Id. at 62. However, this memorandum itself seemed to be premised on the impression that an IID requirement was ongoing.[12] To the extent that Button's memorandum challenged an IID requirement, it incorrectly purported to challenge an active order; Button did not appear to challenge an order already revoked.

         Third, while we can infer the existence of Button's order imposing an IID from the fact that the IID requirement was removed, no order imposing an IID is in the record-making it difficult to review any associated reasoning or to conclude that the petitioners were even challenging that order. In this context, it is not clear how a reviewing court could "'provide effective relief.'" In re Marriage of Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004) (quoting Orwickv. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984)). The claim is thus moot.

         The petitioners ask that we nonetheless review the case under a mootness exception: in their response to the amicus State of Washington, the petitioners assert that Button's claim is "'not rendered moot and [is] nonetheless justiciable at this point because it is a recurring issue of public importance.'" Pet'r's Ans. to Br. of Amicus Curiae State at 15 (quoting CP at 64). The petitioners explain that "'[a]ll of the district court judges are issuing these orders in many if not most DUI cases.'" Id. (quoting CP at 63-64). The petitioners offer no authority for either assertion.

         While we occasionally consider issues that become moot during the pendency of a case, "the moot cases which this court has reviewed in the past have been cases which became moot only after a hearing on the merits of the claim." Orwick, 103 Wn.2d at 253 (finding that the appellants' claim was moot and emphasizing that no court had yet held a hearing on the merits of the claim). Because Button's claim was moot before any objection was filed, let alone a hearing on her complaint, her claim appears to fall outside the scope of our mootness exceptions.

         In sum, although Button was briefly subject to an IID requirement, this requirement was revoked by the time the application for a writ was filed, was not raised in her application for a writ of review, and was not the subject of any order in the record. To the extent that an IID was ordered, it was a mistake withdrawn at Button's first hearing. Because the parties agree that the other petitioners were not subject to IID requirements, the petitioners collectively do not have standing to challenge the use of I IDs as pretrial release conditions. We therefore confine our analysis to the imposition of urinalysis testing as a condition of pretrial release.

         II. The Petitioners Preserved Their Constitutional Challenge to Urinalysis Testing

         The petitioners claim that urinalysis testing violates their right to privacy under article I, section 7 of the Washington Constitution. The State argues that this claim was not preserved because it "was never raised, argued, briefed, or addressed in the trial court." State 7. However, at a first appearance before the district court, one of the petitioners cited to a case discussing the constitutionality of urinalysis testing as a condition of pretrial release. We must now decide whether this citation was sufficient to preserve the constitutional issue for review.

         "[T]he purpose of requiring an objection in general is to apprise the trial court of the claimed error at a time when the court has an opportunity to correct the error." State v. Moen, 129 Wn.2d 535, 547, 919 P.2d 69 (1996). A party's objection may preserve an issue if the "ground for objection is readily apparent from the circumstances." State v. Black, 109 Wn.2d 336, 340, 745 P.2d 12 (1987) (finding that counsel's general objection to an expert's testimony preserved the issue of evidentiary reliability for appeal because the basis for the objection was evident in context); see also State v. Powell, 166 Wn.2d 73, 85, 90, 206 P.3d 321 (2009) (plurality opinion) (five justices agreeing that defendant's objection to the mention of drugs before the jury raised, in context, a challenge to the evidence's prejudicial value). In a joint appeal, an error preserved by one party is preserved for all. See RAP 2.5(a) ("A party may raise a claim of error which was not raised by the party in the trial court if another party on the same side of the case has raised the claim of error in the trial court.").

         Here, Cooper stated the basis for his objection by citing to Rose,146 Wn.App. 439: "we object on State v. Rose grounds, your Honor." RP Cooper at 3. The petitioners urge that, in context, this reference was sufficient to invoke the petitioners' constitutional objection.[13] We have not previously weighed the import of citing a case as the basis for an objection. Because the implications of Cooper's ...

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