With some recent changes in both the DUI laws and law enforcement policies, Washington has seen a large increase in the number of search warrants for blood draws. Typically these warrants are sought from judges during DUI investigations, when defendants refuse a request for a breath test, or when the investigating officer suspects drug use.
Because these warrant applications are often made in the middle of the night, the officers routinely use email or telephone calls to provide a sworn affidavit to a judge when requesting a blood draw. And while the advent of modern communication tools has led to changes in the court rules associated with the affidavit process, a few basic requirements must still be followed by officers.
An officer can apply for a search warrant by contacting an assigned judge via a telephone hotline. After being sworn in and providing their basis for the warrant over the phone or by email, the judge considers whether to grant the request.
A judge's approval of the warrant can be transmitted through "reliable means" but after this authorization is the "issuance" of the warrant. A judge's approval by phone is often is accompanied with instructions to the officer to "affix" the judge's signature on the warrant itself. This presumes the existence of a written document. So while even though we are in an age of digital and cellular communications, a suspect in Washington still retains a constitutionally protected right to receive a written warrant.
Both CrR 2.3 (Superior Court rule) and CrRLJ 2.3 (Rule for a Court of Limited Jurisdiction) require a preservation of a recording of the application process (normally via transcript) and the creation of a written and signed warrant. Also, the peace officer taking property under the warrant is required to give a copy of the written warrant to the person from whom or from whose premises the property is taken, along with a receipt for the property taken.
In a recent win for Robertson Law, we were pleased to receive a suppression order from a judge in a pending case of DUI. At the time of a blood draw, the officer read aloud the warrant to our client. She then provided him a receipt for the blood drawn at the hospital. The judge agreed with our argument that the officer's failure to provide our client with a copy of the written warrant was a violation of both the mandatory court rule and our client's rights per the State Constitution. Because of the nature of this violation, he agreed we were not required to demonstrate specific prejudice to our client's case. He suppressed the results of the search warrant (the blood draw), which is the appropriate remedy for a violation of this nature.
If you or someone you care about is facing criminal charges, please don't hesitate to give us a call to discuss your case.