In 2016, the Washington Supreme Court ruled 7 to 1 in the Baird decision that Washington’s “implied consent statute does not authorize a warrantless search, and a driver has no constitutional right to refuse a breath test because such a search falls under the search incident to arrest exception to the warrant requirement.”

The Court went on to say that “although the implied consent statute gives a driver a statutory right to refuse the test, by exercising the privilege to drive, a driver consents to admitting that refusal to take the breath test into evidence. Accordingly, we hold that a driver’s refusal is admissible as evidence of guilt under Washington’s implied consent law.”

Perhaps the most significant portion of this decision is the Court’s conclusion that search incident to arrest justifies the testing of an arrestee’s blood alcohol content via a breathalyzer.  

Previously, the understood justification for this warrantless search was the exigent circumstances exception to a warrant.  Basically, the rationale was that because the evidence of intoxication is evaporating in front of the officer, there may not be sufficient time to secure a warrant before the evidence of impairment is lost.   That logic, which controlled for decades, was turned on its head by the United States Supreme Court in Missouri v. McNeely.  The issue in McNeely was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.  The Court held that it does not and that under the Fourth Amendment, exigency must be determined case by case based on the totality of the circumstances.

While McNeely had no impact on license suspensions in Washington State for refusal to blow into a breathalyzer, challenge to the admissibility of refusal evidence in subsequent criminal prosecution gained momentum in King County District Court, leading to review by the Washington Supreme Court.

However, before the Washington Supreme Court could review the challenge, the US Supreme Court issued a ruling in Birchfield v. North Dakota.  Birchfield held that “The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests.”  It further went on to explain that this was justified per the search-incident-to arrest exception to the warrant requirement.

Search-Incident-to-Arrest has been an understood exception to a warrant requirement for decades, justified “for the twin purposes of finding weapons the arrestee might use or evidence the arrestee might destroy.”  Chimel v. California.  In Washington, a warrantless search of a person’s person is considered a reasonable search as part of the arrest because such a search presumes exigencies and is justified as part of the arrest – therefore dispensing with any need to determine whether there were reasonable concerns for officer safety or evidence preservation concerns.  See State v MacDicken (2014).

However, in Washington State, which guarantees greater privacy rights to its residents than the Fourth Amendment provides, it had been understood that the search of a person’s person was limited to inanimate things.  Writing as the sole dissent in Baird, Justice Gordon McCloud wrote that:

A search incident to arrest is one of those “`carefully drawn and jealously guarded exceptions.'” Id. (quoting Bravo Ortega, 177 Wn.2d at 122). It certainly extends to a person and his or effects. Id.  But we have never applied it to bodily contents, that is, to something inside the person, like breath or blood. Instead, we have applied this exception to things— like a purse(Byrd), a jacket (State v. Parker, 139 Wn.2d 486, 987 P.2d 73 (1999)), or a car (State v. Ringer, 100 Wn.2d 686, 697, 674 P.2d 1240 (1983), overruled by State v. Stroud,106 Wn.2d 144, 151-52, 720 P.2d 436 (1986)).  Bodily constituents like the breath at issue in these cases are different. They are certainly shielded by the state constitutional right to privacy. In Garcia-Salgado, for example, we held that taking a cheek swab from an arrestee constitutes a search and that it cannot be accomplished without appropriate authority of law. 170 Wn.2d at 184. To be sure, we did not address the search incident to arrest exception there. But we made clear that we accord great respect to one’s bodily integrity. Id. at 186-88. In fact, we held that where law enforcement intrusion into “`bodily integrity'” (as opposed to inanimate things) was concerned, we required a higher showing to justify the intrusion than is ordinarily required. Id. at 184 (quoting Schmerber, 384 U.S. at 617). 

It’s unclear exactly how far into a person’s person police can now search without a warrant.  Birchfield made clear that  warrantless blood draws are not constitutional, but breath tests are.  Would X-rays be permissible?  What about thermometers?  What about a cheek swab, is that now permissible under search incident to arrest?  Most importantly – because the Washington Supreme Court failed in Baird to adopt search-incident-to-arrest as the justification for a warrantless search of an arrestee’s breath expressly as a permissible exception under Article 1, Section 7, of the Washington State Constitution – is the ultimate issue really even decided in Washington State?