The Washington State Legislature passed Substitute House Bill 6279 on March 5, 2014, and it was signed by the Governor on March 27, 2014. This new law, which becomes effective on June 12, 2014, allows a district or municipal court judge in which an offense is alleged to have occurred, to authorize a search warrant for persons or evidence located anywhere in the state. This is a big departure from the previous law, which only allowed municipal and district court judges to authorize a warrant located in the county in which the judge served.
Additionally, applications for warrants can now be made by electronic devices, including email, using electronic or digital signatures. In fact, if the request comes from a law enforcement agency-issued cell phone, the officer need only include a name and badge number without any signature or other authentication. Previously, officers could only get warrants via telephone and had to have actual signatures, so it also required a fax.
Similarly, judges can authorize warrants simply by email or other electronic response. This law seemingly provides for more immediate access to judges for cops seeking warrants, but one has to wonder whether veracity loses out to convenience in this deal. This law dispenses with a lot of the traditional trappings of trustworthiness solemnity and formality underlying judicial authority to restrict civil liberties. Only time will tell if the “electronic substitutes” are an adequate replacement.
Sometimes I wonder if the theory of “separation of powers” actually means anything. In practice, it seems more like linguistic calisthenics than anything else – if we call it by a fancy term, people will think it’s okay.
Last year, the Washington State Supreme Court issued its decision in the case of State vs. Ortega, 177 Wash.2d 116 (2013), which clarified that police officers do not have statutory arrest authority for misdemeanor crimes (as opposed to felonies) that were not witnessed by them. In other words, for most misdemeanor offenses the officer who makes the arrest must have some personal knowledge of the criminal activity and cannot rely solely on the observations of other officers. Civil liberties groups were thrilled that the Court issued a decision protecting individual privacy rights. Or did it?
Well, apparently our Legislature has an easy fix when the Judiciary points out a problem. Substitute House Bill 2057, which becomes effective on June 12, 2014, allows warrantless arrests for misdemeanors committed “in the presence of an officer” (vs. “the” officer). This gives much broader statutory authority to law enforcement, and in essence “undoes” the Ortega ruling.
This is partly a fight between branches of government for control, but also somewhat of an end-around that troublesome separation of powers doctrine. Here, the Supreme Court spelled out for the Legislature what the problem was and how to fix it, and the Legislature duly followed the Court’s directions. The end result is that the courts are not “checking and balancing” the power of congress, but rather assisting legislators in how to best draft their laws to achieve the result they want.
Washington’s DUI laws were recently amended to include a “per se” marijuana offense, meaning that if a person drives with a THC concentration of 5.0 or higher that person can be convicted of DUI, and/or suffer administrative license consequences. Although prior to 2013 a driver could be cited for driving under the influence of drugs other than alcohol, there was never a particular level set by the legislature that on its own would require a license suspension through DOL. Now, if a blood test reflects 5.0 or more, no other evidence of intoxication is required, and the DOL can initiate a license suspension proceeding.
There are several interesting twists to the application of the new law. One is that the laws related to licensing consequences for commercial driving – that is driving IN A COMMERCIAL VEHICLE – were not similarly amended. Under RCW 46.25.120 and RCW 46.25.090, a license disqualification is based on either 1) refusing the test or 2) an alcohol concentration over .04. The legislature did not add any provisions permitting administrative disqualifications for tests with positive drug levels. Although an officer suspecting drugs is authorized to request a blood test under these statutes, there is no mandatory administrative license disqualification unless the person refuses the test or the alcohol concentration is over .04 (.02 for those under 21).
While this is probably a legislative oversight more than anything else, it creates a strange dichotomy in the law whereby there are potentially greater penalties for driving personal vehicles than for driving commercial vehicles. This remains something to watch for in the future.
Officers who have special training to detect whether a DUI driver is impaired by drugs are known as “Drug Recognition Experts” or “DREs.” Washington State has a growing number of officers who have received this training and DUI officers in Seattle and King County are emphasizing the detection and arrest of drivers who are suspected of being DUI because of drugs. This is especially true since the passage of I-502, the marijuana legalization law.