IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 47025-0-II

Respondent,

v.

DYLAN JAMES WOMER, UNPUBLISHED OPINION

Appellant.

LEE, J. — Dylan James Womer was convicted of vehicular homicide for driving while 

intoxicated, recklessly, and with disregard for the safety of others. Womer appeals his conviction 

and sentence, arguing that (1) the superior court erred by admitting the results of his blood test 

because (a) the superior court’s CrR 3.6 findings of fact are not supported by substantial evidence 

and (b) exigent circumstances did not exist under Missouri v. McNeely1; (2) he received ineffective 

assistance of counsel when (a) counsel failed to move to suppress crime scene and autopsy 

photographs of the victim, and (b) when counsel failed to move to suppress the results of his blood 

alcohol test on the basis of State v. Figeroa Martines2; and (3) the trial court erred by imposing 

legal financial obligations without inquiring into his current or future ability to pay. We disagree 

and affirm. 

 

1

133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013).

2

182 Wn. App. 519, 331 P.3d 105 (2014), rev’d, 184 Wn.2d 83, 355 P.3d 1111 (2015).

Filed

Washington State

Court of Appeals

Division Two

March 15, 2016
No. 47025-0-II

2

FACTS

On April 25, 2013, around 12:30 a.m., Dylan Womer was driving in Thurston County, 

Washington, with his friend riding in the front passenger seat. The vehicle crashed, striking a tree 

on the passenger side. The vehicle was “nearly ripped in half.” 2 Verbatim Report of Proceedings 

(VRP) at 205. The passenger died at the scene, his right arm amputated and his right leg partially 

amputated. Womer was transported to the hospital. 

Washington State Trooper Daniel Walwark was dispatched to the scene of the collision 

and arrived at 12:48 a.m. Washington State Patrol Sergeant Jason Greer was also dispatched to 

the scene shortly after 1:00 a.m. While travelling from Tacoma to the scene, Sgt. Greer 

communicated with Trooper Walwark, and after getting Trooper Walwark’s initial observations 

about the scene, instructed Trooper Walwark to go to the hospital to make contact with Womer 

and “keep an eye on” him. VRP (Dec. 9, 2013) at 12. 

Trooper Walwark left the scene at between approximately 1:30 and 2:00 a.m. to make 

contact with Womer at the hospital. When Trooper Walwark got to the hospital, Womer’s hospital 

room smelled like alcohol, Womer’s eyes were “very bloodshot and watery,” and Womer’s speech 

was “repetitive, fast, fast rate of speech, and fairly slurred.” 2 VRP at 212. Womer told Trooper 

Walwark that he had drunk “four to five shots of alcohol,” and smoked methamphetamine and 

marijuana. 2 VRP at 214.

Sgt. Greer arrived at the scene of the collision at about 2:00 a.m. He observed “an alcohol

bottle” and determined that the position of the deceased body indicated that the deceased person 

was the passenger in the car. VRP (Dec. 9, 2013) at 25. Sgt. Greer communicated his observations 

to Trooper Walwark between 2:00 and 2:30 a.m. After talking with Sgt. Greer, Trooper Walwark 
No. 47025-0-II

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instructed hospital staff to draw a blood sample from Womer for testing and placed Womer under 

arrest. 

The State charged Womer with vehicular homicide by operating a motor vehicle: (a) while 

intoxicated, (b) in a reckless manner, or (c) with disregard for the safety of others. RCW 

46.61.520(1)(a), (b), and (c). Womer pleaded not guilty. 

A. PRETRIAL

1. Womer’s First CrR 3.6 Motion to Suppress

Womer moved to suppress the results of the blood test, arguing that the results were 

inadmissible because officers had not obtained a warrant. Womer argued that under Missouri v. 

McNeely, a suspect’s dissipating blood alcohol concentration does not constitute a per se exigent 

circumstance that justifies a warrantless search. The State argued that the totality of the 

circumstances, including Womer’s dissipating blood alcohol concentration, constituted exigent 

circumstances. 

At the suppression hearing, Sgt. Greer testified to the following events. Just after 1:00 

a.m., Sgt. Greer was called to investigate a collision and was advised by his dispatcher that Trooper 

Walwark was at the scene. Sgt. Greer then called Trooper Walwark “to get some information prior 

to responding,” but Trooper Walwark did not answer. VRP (Dec. 9, 2013) at 10. Trooper Walwark 

called Sgt. Greer back “about 10 or 15” minutes after 1:00 a.m. VRP (Dec. 9, 2013) at 10. Trooper 

Walwark told Sgt. Greer the collision involved a car hitting a tree and “[t]he car was kind of split 

in half,” there was a deceased passenger, and that someone associated with the collision, a 

“possible driver,” was being transported to a nearby hospital. VRP (Dec. 9, 2013) at 10, 14. 
No. 47025-0-II

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While driving to the scene of the collision, based on the information provided by his 

dispatcher, Sgt. Greer had the impression that the driver of the car was impaired and that Womer 

was the driver. However, before conducting his own investigation of the collision, Sgt. Greer did 

not believe he had enough evidence to apply for a warrant. 

After arriving at the scene close to 2:00 a.m. and conducting his own investigation, Sgt. 

Greer believed he had sufficient probable cause to believe that Womer was the driver and that 

alcohol contributed to the collision. He found alcohol at the scene and the position of the body 

indicated that the deceased person was the passenger. Based on his own investigation, Sgt. Greer 

determined that probable cause existed for a warrant to take a blood sample from Womer. 

However, in Sgt. Greer’s experience, “it would take the trooper maybe an hour or so to write the 

warrant. Depending on the judge’s availability and what numbers are called, that could take 

another hour or so,” sometimes taking “many hours” to reach a judge. VRP (Dec. 9, 2013) at 17-

18. Sgt. Greer called Trooper Walwark between 2:00 and 2:30 a.m. to instruct him to obtain a 

blood sample from Womer without a warrant. 

Trooper Walwark testified that he was first dispatched to the collision at 12:47 a.m., and 

he spoke with Sgt. Greer “about a half an hour after [he] arrived” at the scene of the collision. 

VRP (Dec. 9, 2013) at 40. When they spoke, Trooper Walwark reported to Sgt. Greer that he was 

at the scene of the collision, “it was a car versus tree collision; that there was one confirmed 

deceased individual on the scene, and there was another individual associated with the scene”

being transported to a nearby hospital. VRP (Dec. 9, 2013) at 40. 

Trooper Walwark was the only officer at the hospital. When Trooper Walwark made 

contact with Womer, he noticed the smell of alcohol in Womer’s hospital room. Hospital staff 
No. 47025-0-II

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told Trooper Walwark that Womer suffered minimal injuries and was cleared to be discharged. 

Trooper Walwark spoke with Sgt. Greer, who was still at the scene of the collision, just before 

2:30 a.m. Sgt. Greer told Trooper Walwark that he had established probable cause that Womer 

was the driver and instructed him to obtain a blood sample from Womer. Trooper Walwark then 

ordered the blood draw. To obtain a search warrant, Trooper Walwark would have gone to his 

patrol car, parked in the rear parking lot of the hospital, leaving Womer ready for discharge and 

without an officer present. 

The trial court denied Womer’s motion to suppress the results of the blood draw. The court 

found that 

[E]xigent circumstances did exist . . . to justify the warrantless blood draw based 

on the following facts: the time of day that the crash occurred; the time that had 

already elapsed [following] the fatal collision; the anticipated delay of

approximately two hours before a search warrant could be obtained; the possibility 

that the defendant would have been discharged from the hospital if Trooper 

Walwark went to his patrol vehicle to prepare the search warrant affidavit.

Clerk’s Papers (CP) at 266. 

2. The Blood Tests

On April 30, 2013, the Washington State Patrol Toxicology Laboratory tested Womer’s 

blood sample. The test results revealed blood alcohol concentration of 0.08 and a 

methamphetamine level of 0.23. 

On August 14, in light of Division One’s July 21, 2014 decision in State v. Figeroa 

Martines, 182 Wn. App. 519, 331 P.3d 105 (2014), rev’d, 184 Wn.2d 83, 355 P.3d 1111 (2015), 

the State moved, under CrR 4.7(b)(2)(viii), for an order authorizing the State to test Womer’s 

“blood samples previously seized pursuant to exigent circumstances.” Suppl. CP at 281. A 
No. 47025-0-II

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different Thurston County Superior Court judge granted the State’s motion and authorized the retest of Womer’s blood. Womer’s blood was re-tested, revealing a blood alcohol concentration of 

0.071 and methamphetamine levels of 0.21. 

3. Womer’s Second Motion to Suppress

In September 2014, Womer moved to suppress all evidence resulting from the blood draw 

in April 2013, including the April 2013 test and the September 2014 re-test pursuant to Martines. 

Womer argued that he was not read the “Implied Consent Warnings” that are statutorily required,

and therefore, the evidence was inadmissible. CP at 124. The trial court denied Womer’s motion 

to suppress. The parties agreed that the jury would not be informed that Womer’s blood was tested 

twice. 

4. Crime Scene and Autopsy Photographs

The State sought to admit digital photographs of the victim at the crime scene and during 

the autopsy. Womer and the State agreed on the photos to be shown at trial. Womer stated: 

The photos at the scene where the victim was found, they are not terribly shocking, 

although they might shock some people. Some of the autopsy show the immediate 

cause of death was traumatic head injury . . . I don’t have an objection to the State 

showing photos of the actual skull fracture, and, unfortunately, you cannot really 

see the skull fracture from the outside.

. . . It seems to me that the State is probably within its right, given its burden 

of proof, to show at least those photos because, like I said, it’s difficult [to see].” 

1 VRP (Dec. 8, 2014) at 12-13. The trial court asked Womer and the State whether there would 

be an issue of “shock of jurors.” 1 VRP (Dec. 8, 2014) at 13. Womer responded: “that’s what 

voir dire is about.” 1 VRP (Dec. 9, 2014) at 14. 
No. 47025-0-II

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B. TRIAL

The deputy coroner, testified that the victim’s right arm was amputated, his sweat pants 

were ripped off, and his lower right leg was partially amputated. The forensic pathologist, testified 

that the victim’s death was caused by blunt force trauma, using the various crime scene and autopsy 

photographs to explain her testimony. 

Washington State Patrol Sgt. Michael Bassett testified about his investigation into the 

collision, including the collision reconstruction. Sgt. Bassett testified that based on the 

investigation and collision reconstruction, it is likely that Womer was driving “faster than . . . 61 

to 77 miles [per] hour on the night of the collision.” 3 VRP at 446. 

Andrew Gingras, a forensic scientist at the Washington State Patrol Toxicology 

Laboratory, testified regarding the blood test.3 Gingras testified that Womer’s blood alcohol 

concentration was 0.071 plus or minus 0.0058. Gingras also testified to the effects of alcohol on 

the body, like affecting fine motor movement, gross motor skills, concentration, speech, and 

vision. Gingras further testified that based on Womer’s blood levels of 0.21 milligrams per liter 

of methamphetamine, it is possible that Womer had recently consumed methamphetamine. 

Gingras described the effects of methamphetamine and that it often results in jerky motor control, 

restlessness, and affects reaction times and decision-making. 

Womer testified that he was driving approximately 60 miles per hour and that he knew the 

posted speed limit varied between 35 and 40 miles per hour. Womer also testified that he and the 

victim smoked a small bowl of methamphetamine and drank about four to five shots of rum. 

 

3 There was no mention of two blood tests; the testimony was based on the second, September 

2014 blood test. 
No. 47025-0-II

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The jury was instructed on three alternative methods of committing vehicular homicide—

for operating a motor vehicle while intoxicated, in a reckless manner, or with disregard for the 

safety of others. The jury returned a special verdict finding Womer guilty under all three 

alternatives. The trial court sentenced Womer to 124 months of confinement and imposed 

mandatory legal financial obligations (LFOs). Womer appeals.

ANALYSIS

A. THE BLOOD SAMPLE

Womer argues that (1) the trial court’s findings of fact are unsupported by substantial 

evidence, and (2) the trial court erred by denying his motion to suppress the results of the blood 

test because exigent circumstances did not exist to justify taking a blood sample without a warrant

under Missouri v. McNeely, 133 S. Ct. 1552. We disagree. 

1. CR 3.6 Hearing—Findings of Fact and Conclusions of Law

Womer argues that the trial court’s findings of fact numbers 9, 13, 14, 20, and 21 are 

unsupported by substantial evidence.4 We disagree. 

We review a trial court’s ruling on a motion to suppress evidence to determine whether 

substantial evidence supports the trial court’s findings of fact and whether those findings, in turn, 

support the trial court’s conclusions of law which we review de novo. State v. Russell, 180 Wn.2d 

860, 866, 330 P.3d 151 (2014). Substantial evidence is evidence sufficient to persuade a fairminded person of the finding’s truth. Russell, 180 Wn.2d at 866. We treat unchallenged findings 

 

4 Womer challenges finding of fact number 16, but fails to offer any argument regarding his 

challenge. Therefore, we do not consider Womer’s challenge to finding of fact 16. RAP 

10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
No. 47025-0-II

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of fact as verities on appeal. State v. Pierce, 169 Wn. App. 533, 544, 280 P.3d 1158, review denied,

175 Wn.2d 1025 (2012). On issues of credibility, we defer to the trier of fact. State v. Homan,

181 Wn.2d 102, 106, 330 P.3d 182 (2014).

a. Finding of Fact 9 

Finding of Fact 9 reads: “At some point between 1:15 to 2:15 A.M., Trooper Walwark

returned Sgt. Greer’s telephone call and advised Sgt. Greer of his initial findings.” CP at 264. 

Womer does not articulate the specific basis of his challenge to this finding; instead, Womer 

generally argues that “substantial evidence does not support the court’s finding that this event 

occurred at 2:15 am.” Br. of Appellant at 27-28.

Sgt. Greer called Trooper Walwark shortly after being dispatched to the scene at 1:00 a.m. 

Trooper Walwark did not answer, but he called Sgt. Greer back about 10 to 15 minutes after 1:00 

a.m. Both Sgt. Greer and Trooper Walwark testified that during that call, Trooper Walwark told 

Sgt. Greer about his initial findings at the scene. Trooper Walwark testified that he left the scene 

between approximately 1:30 and 2:00 a.m. to make contact with Womer at the hospital, which was 

before Sgt. Greer arrived at the scene at about 2:00 a.m. Based on the officers’ testimony, the 

evidence is sufficient to persuade a fair-minded person of the truth of the finding. Thus, the trial 

court’s finding of fact 9 that Trooper Walwark advised Sgt. Greer of his initial findings between 

1:15 and 2:15 a.m. is supported by substantial evidence.

b. Finding of fact 13 and 14

Womer’s challenge to the findings is primarily focused on finding of fact 13 and 14. 

Finding of fact 13 reads:
No. 47025-0-II

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At approximately 2:15 A.M., Sgt. Greer, while still at the scene of the collision, 

contacted Trooper Walwark and advised Trooper Walwark that after his [Sgt. 

Greer] investigation, he believed that he had probable cause to believe that the 

individual at the hospital was the driver of the vehicle. 

CP at 264. Finding of fact 14 reads: 

The court finds, based on the testimony presented, that probable cause was not 

developed until a few minutes prior to Sgt. Greer contacting Trooper Walwark at 

approximately 2:15 A.M.

CP at 264.

Womer claims that substantial evidence does not support the court’s finding that Sgt. Greer 

and Trooper Walwark “spoke on the phone and determined to take blood” from Womer at 

approximately 2:15 a.m. and that officers did not establish probable cause to arrest until 2:15 a.m. 

Womer argues that the finding is unsupported because Sgt. Greer testified that “they had the 

‘impression’ that [Womer] was the driver” and “impaired” by about 1:05 a.m. Br. of Appellant at 

26, 28 (quoting VRP (Dec. 9, 2013) at 24). 

Womer is correct that Sgt. Greer testified that officers suspected that Womer was the driver 

by 1:05 a.m. But, Sgt. Greer also testified that he did not believe he had enough evidence to apply 

for a warrant because the only information he had was from his dispatcher, and he had not arrived 

at the scene yet or conducted his own investigation. Sgt. Greer’s impression that Womer was the 

driver at 1:05 a.m. is not the equivalent of Sgt. Greer establishing probable cause for a warrant at 

1:05 a.m.5 See State v. Ruem, 179 Wn.2d 195, 202, 313 P.3d 1156 (2013) (“Probable cause 

requires more than suspicion or conjecture.”).

 

5 To the extent that Womer is arguing that the officers should have applied for a warrant based on 

their impression that Womer was the driver, he fails to provide supporting authority and his claim 

fails. RAP 10.3(a)(6); Cowiche Canyon, 118 Wn.2d at 809.
No. 47025-0-II

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Sgt. Greer testified that he did not believe he had enough evidence to apply for a warrant 

until he arrived at the scene and conducted his own investigation at about 2:00 a.m. After he was 

able to conduct his own investigation of the scene, Sgt. Greer believed that Womer was the driver 

and that alcohol may have contributed to the collision. Sgt. Greer then called Trooper Walwark. 

Trooper Walwark testified that when Sgt. Greer called him just prior to 2:30 a.m., he was told that 

they had probable cause to believe that Mr. Womer was the driver and to take a blood sample from 

Womer. Thus, substantial evidence supports the trial court’s finding that the officers established 

probable cause a few minutes prior to Sgt. Greer contacting Trooper Walwark at approximately

2:15 a.m. and that Sgt. Greer told Trooper Walwark at approximately 2:15 a.m. that he had 

probable cause to believe Womer was the driver of the vehicle.

Womer points to Sgt. Greer’s testimony that he had decided to draw blood by “2:05” a.m. 

to demonstrate that the finding lacks substantial evidence. Br. of Appellant at 27 (quoting VRP 

(Dec. 9, 2013) at 26). To the extent that Womer is arguing that a discrepancy of 10 to 15 minutes 

does not fall within the time frame of “approximately 2:15 a.m.,” his argument is unsupported by 

authority and fails. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 

(1992); see DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).

c. Finding of Fact 20

Finding of fact 20 reads: 

In Sgt. Greer’s experience, it takes approximately two hours from the time the State 

Patrol begins its process to put together an affidavit to the time that the search 

warrant is granted. Additionally, Trooper Walwark would have to physically leave 

the defendant unattended to go out to his patrol vehicle to access his computer to 

prepare the search warrant affidavit.

CP at 265. 
No. 47025-0-II

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Womer argues that substantial evidence does not support the trial court’s finding that in 

Sgt. Greer’s opinion it takes two hours to prepare an affidavit and get a search warrant. Br. of 

Appellant at 26, 28. We disagree.

Sgt. Greer testified that in his experience, “it would take the trooper maybe an hour or so 

to write the warrant. Depending on the judge’s availability and what numbers are called, that could 

take another hour or so.” VRP (Dec. 9, 2013) at 17. Sgt. Greer also testified that, in his experience, 

it has taken “many hours” to reach a judge.6 VRP (Dec. 9, 2013) at 18. 

Thus, based on the testimony presented at the CrR 3.6 hearing, the trial court’s finding of 

fact 20 is supported by substantial evidence. We hold that Womer’s challenge to this finding fails.

d. Finding of fact 21

Finding of fact 21 reads: 

Prior to speaking with Sgt. Greer at approximately 2:15 A.M., Trooper Walwark 

had received indication from the hospital that the defendant was ready to be 

discharged. Therefore, had Trooper Walwark went [sic] outside to his patrol car to 

prepare the search warrant affidavit, there was no assurance that the defendant 

would have stayed inside the hospital.

CP at 265. 

Womer argues that substantial evidence does not support the trial court’s finding that 

Womer would have been free to leave while Trooper Walwark was preparing the affidavit in 

support of the warrant. We disagree.

 

6 Also, Trooper Walwark testified that to obtain a search warrant, he would have gone to his patrol 

car, parked in the rear parking lot of the hospital. Trooper Walwark further testified that if he had 

gone to his patrol car to prepare the affidavit, there were no other officers present or available to 

observe Womer. 
No. 47025-0-II

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Trooper Walwark testified that “the hospital staff informed [him] that [Womer] was 

medically cleared to be discharged . . . due to minimal injuries.” VRP (Dec. 9, 2013) at 42. 

Trooper Walwark also testified that there was no other law enforcement available to observe 

Womer, and that if he had gone to his patrol car, Womer could have been discharged and left the 

hospital without his knowledge.

Thus, substantial evidence supports the trial court’s finding that had Trooper Walwark gone 

outside to his patrol car to prepare the search warrant affidavit, there was no assurance that Womer 

would have stayed inside the hospital. Accordingly, we hold that Womer’s challenge to finding 

of fact 21 fails.

2. Exigent Circumstances

Womer contends that exigent circumstances did not exist to justify the warrantless blood 

draw. We disagree. 

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the 

Washington State Constitution prohibit warrantless searches or seizures unless one of the 

exceptions to the warrant requirement applies. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 

1266 (2009). “[T]he taking of blood samples constitutes a ‘search and seizure’ within the meaning 

of U.S. Const. amend. 4 and Const. art. 1, § 7.” State v. Judge, 100 Wn.2d 706, 711, 675 P.2d 219 

(1984); State v. Curran, 116 Wn.2d 174, 184, 804 P.2d 558 (1991) (holding nonconsensual blood 

test for suspected commission of vehicular homicide is a search), overruled on other grounds by 

State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997). 

The State bears the burden of demonstrating that a warrantless search or seizure falls within 

an exception to the warrant requirement. State v. Hendrickson, 129 Wn.2d 61, 71, 917 P.2d 563 
No. 47025-0-II

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(1996). One recognized exception allows a warrantless search and seizure if exigent circumstances 

exist. McNeely, 133 S. Ct. at 1558. “[W]hile the natural dissipation of alcohol in the blood may 

support a finding of exigency in a specific case, as it did in Schmerber, it does not do so 

categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be 

determined case by case based on the totality of the circumstances.”

7

 Id. at 1563; see State v. 

Smith, 165 Wn.2d 511, 518, 199 P.3d 386 (2009). 

Here, the totality of the circumstances justified a warrantless blood draw. The fatal crash 

occurred in the early morning hours in an area understaffed by police. Womer was transported to 

the hospital, and Trooper Walwark went to the hospital to make contact with him there. When

Sgt. Greer arrived at the scene of the collision at about 2:00 a.m., almost an hour and a half after 

the collision, he began his investigation and determined that probable cause existed to believe 

Womer was the driver and that alcohol may be involved. Sgt. Greer testified that, in his 

experience, it could take over two hours to obtain a search warrant. Thus, by the time that police 

established probable cause, about one-and-a-half to two hours had passed since the collision

occurred. And, around the same time that police established probable cause, hospital staff advised 

Trooper Walwark that Womer was ready to be discharged from the hospital. Trooper Walwark 

testified that he would have to go to his patrol car to write out an affidavit for a search warrant, 

 

7

In Schmerber, the United States Supreme Court recognized that exigent circumstances justify a 

warrantless blood draw where the accused was transported to the hospital and the police had 

remained at the scene to investigate. Schmerber v. California, 384 U.S. 757, 771, 86 S. Ct. 1826, 

16 L. Ed. 2d 908 (1966). According to the Court, the evidence could have been lost because “the 

percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body 

functions to eliminate it from the system.” Schmerber, 384 U.S. at 770; see McNeely, 133 S. Ct. 

at 1558, 1560. The Court noted that “there was no time to seek out a magistrate and secure a 

warrant.” Schmerber, 384 U.S. at 771; see McNeely, 133 S. Ct. at 1563.
No. 47025-0-II

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leaving Womer unattended by any law enforcement officer. The potential of Womer being 

discharged from the hospital and leaving, coupled with the anticipated delay in obtaining a warrant,

threatened the officer’s opportunity to obtain an adequate blood sample via a search warrant. The 

circumstances here did not allow police to obtain a warrant for a blood draw without “undermining 

the efficacy of the search.” McNeely, 133 S. Ct. at 1561. We conclude that exigent circumstances 

existed that justified a warrantless search. 

However, even if the trial court erred by admitting the results of the blood test, any error 

was harmless. “We apply a harmless error analysis when the trial court admits evidence that is a 

product of a warrantless search.” State v. Smith, 165 Wn. App. 296, 316, 266 P.3d 250 (2011), 

aff’d on other grounds by 177 Wn.2d 533 (2013). “A constitutional error is harmless if the 

appellate court is convinced beyond a reasonable doubt that any reasonable jury would have 

reached the same result in the absence of the error.” State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 

1182 (1985), cert. denied, 475 U.S. 1020 (1986).

Womer was charged with causing the death of another while operating a motor vehicle: (a) 

while intoxicated, (b) in a reckless manner, or (c) with disregard for the safety of others. RCW 

46.61.520(1)(a), (b), and (c). The jury was instructed on all three alternatives. 

The jury could have found beyond a reasonable doubt that the evidence independent of the 

blood test results showed that Womer was intoxicated while operating a motor vehicle. Trooper 

Walwark testified that he was trained to detect alcohol and drug impairment. Trooper Walwark 

further testified that he observed that Womer’s hospital room smelled like alcohol, Womer’s eyes 

were “very bloodshot and watery,” and Womer’s speech was “repetitive, fast, fast rate of speech, 

and fairly slurred.” 2 VRP (Dec. 9, 2014) at 212. Trooper Walwark testified that his observations 
No. 47025-0-II

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“are pretty indicative of using alcohol” and some suggest drug usage. 2 VRP (Dec. 9, 2014) at 

212. Trooper Walwark also testified that Womer told Trooper Walwark that he had drunk “four 

to five shots of alcohol,” and smoked methamphetamine and marijuana. 2 VRP (Dec. 9, 2014) at 

214. Further, Gingras testified about the effects of alcohol and methamphetamines. 

Therefore, even without the results of the blood test, the jury could have found Womer 

guilty beyond a reasonable doubt of operating a motor vehicle while intoxicated. Accordingly, 

Womer’s challenge to the warrantless blood draw fails. 

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Womer argues that he received ineffective assistance of counsel because trial counsel failed 

to object to (1) the State’s offer of crime scene and autopsy photographs and (2) the State’s offer 

of the blood test results. We disagree. 

1. Legal Principles

We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d 

870, 883, 204 P.3d 916 (2009). A defendant claiming ineffective assistance of counsel has the 

burden to establish that (1) counsel’s performance was deficient and (2) the deficient performance 

prejudiced the defendant’s case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984). Failure to establish either prong is fatal to an ineffective assistance of 

counsel claim. Strickland, 466 U.S. at 700.

Counsel’s performance is deficient if it falls below an objective standard of reasonableness. 

State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). Our scrutiny of counsel’s performance 

is highly deferential; we strongly presume reasonableness. Id. To rebut this presumption, a 

defendant bears the burden of establishing the absence of any legitimate trial tactic explaining 
No. 47025-0-II

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counsel’s performance. Id. If trial counsel’s conduct can be characterized as legitimate trial 

strategy or tactics, it cannot serve as a basis for a claim that the defendant received ineffective 

assistance of counsel. Id.

To establish prejudice, a defendant must show a reasonable probability that but for 

counsel’s performance, the result would have been different. Id. at 34. When an appellant’s claim 

for ineffective assistance of counsel is based on counsel’s failure to make a motion to suppress

evidence, the appellant “must show that the trial court likely would have granted the motion if 

made.” State v. McFarland, 127 Wn.2d 322, 334, 337 n.4, 899 P.2d 1251 (1995); accord State v. 

Gerdts, 136 Wn. App. 720, 727, 150 P.3d 627 (2007).

2. Photographs

Womer argues that he received the ineffective assistance of counsel when his trial counsel 

failed to move to suppress the crime scene and autopsy photographs. We disagree. 

Here, the State sought to admit digital photographs of the victim at the crime scene and 

during the autopsy. Trial counsel and the State agreed on the photos to be admitted. Trial counsel 

stated that he did not object to the photographs because of the State’s burden of proof. 

Womer argues that the photographs should not have been admitted because they were not 

relevant and were only used to prove “the fact at issue that the defense did not even dispute.” Br. 

of Appellant at 41. This argument fails. 

Womer pleaded not guilty and asserted a general denial defense. Therefore, the State had 

a burden to prove all of the elements of the charged crime, including those that Womer did not 

dispute. See State v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002) (holding the State must prove 

each essential element of the crime beyond a reasonable doubt). To hold that evidence going to 
No. 47025-0-II

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an element of the crime is irrelevant because it is undisputed would imply that the defendant must 

dispute each element in order to put the State to its proof. This is contrary to basic principles of 

criminal law. See State v. Thorgerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011) (holding the State 

has the burden of proof, and the defendant has no duty to present evidence).

Womer also argues that there was no “possible tactical reason” for trial counsel to fail to 

move to suppress the admission of any of the photographs. Br. of Appellant at 41. However, the 

record demonstrates that the State had several photographs it wanted admitted. Trial counsel 

considered all of the evidence, successfully objected to some of the photographs, and based on the 

State’s burden, determined that the State was within its right to present a limited number of agreed 

upon photographs. Therefore, the record demonstrates that trial counsel made a legitimate tactical 

decision not to move to suppress the admission of all the photographs. 

Further, Womer has not demonstrated that the trial court would have excluded photographs 

if trial counsel had made a motion to suppress. See McFarland, 127 Wn.2d at 334. The State “is 

entitled to prove its case by evidence of its own choice.” Old Chief v. United States, 519 U.S. 172, 

186-87, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997); State v. Finch, 137 Wn.2d 792, 811, 975 P.2d 

967, cert. denied, 528 U.S. 922 (1999). And while both the State and trial counsel acknowledged 

that the photographs were gruesome, Womer has not offered authority that gruesome, or shocking, 

or emotional photographs are inherently unfairly prejudicial. 

As much as courts should and do keep a trial clear of potentially prejudicial matter, 

this obligation, within our concept of a fair trial for an accused, must be applied 

with the realities of the facts which the state is required to prove. A bloody, brutal 

crime cannot be explained to a jury in a lily-white manner to save the members of 

the jury the discomforture of hearing and seeing the results of such criminal 

activity. Each slide shown had considerable probative value to prove relevant and 

material issues in the case.
No. 47025-0-II

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State v. Adams, 76 Wn.2d 650, 656, 458 P.2d 558 (1969), rev’d on other grounds, 403 U.S. 947 

(1971).

Womer has not argued or demonstrated that a motion to suppress the photographs would 

have likely been successful because the photographs were relevant to the cause of death and the 

State has a right to present evidence to fulfil its burden of proof. Because Womer has not 

demonstrated that trial counsel’s performance was deficient or prejudicial, his claim of ineffective 

assistance of counsel fails.8

3. Motion to Suppress based on State v. Figeroa Martines

Womer argues that he received ineffective assistance of counsel because trial counsel failed 

to move to suppress the results of the blood test because police did not obtain a separate warrant 

to test the blood, rendering the results inadmissible under Figeroa Martines.

9

 We disagree. 

In August 2014, the State moved for a court order under CrR 4.7(b)(2)(viii) to have 

Womer’s blood tested, approximately three weeks after State v. Figeroa Martines was published 

 

8 Womer asserts in the last paragraph of his argument, without authority or further argument, that 

trial counsel was ineffective for failing to move for a mistrial after juror 8 fainted. We do not 

address this assertion because Womer does not assign error to the failure to make a motion for a 

mistrial, and fails to provide authority or adequate argument. RAP 10.3(a)(6). 

Also, after Juror 8 fainted, at trial counsel’s request, the trial court excused juror 8 and brought in 

an alternate juror. Therefore, Womer is unable to show prejudice. 

9 Womer also argues that “trial counsel’s failure to get the results of the blood test suppressed 

undermines confidence in the outcome of the trial, particularly on the first alternative method of 

committing the offense.” Br. of Appellant at 47. Counsel would not be ineffective for being 

unsuccessful in his motions practice. The question here is whether counsel’s failure to make a 

motion to suppress on the basis of Figeroa Martines was deficient. 
No. 47025-0-II

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in July 2014.10 In Figeroa Martines, Division One of this court held that the “State may not 

conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes

testing and specifies the types of evidence for which the sample may be tested.”

11 182 Wn. App. 

522. Martines does not involve a court order or speak to the validity of a court order under CrR 

4.7(b)(2)(viii) instead of a warrant under CrR 2.3. 

Here, trial counsel was not deficient for not moving to suppress the results of the test that 

was performed without a warrant because the test was performed with a court order under CrR 

4.7(b)(2)(viii).

12

 Therefore, the error that Womer alleges does not exist in the record. Furthermore, 

if trial counsel had objected, it is not likely that the objection would have been upheld because the 

blood was tested pursuant to court order and, therefore, not in violation of Martines. 

Womer cannot demonstrate deficient performance or prejudice. Therefore, his claim of 

ineffective assistance fails.13

 

10 Womer does not address the existence of or challenge the validity of the court order. “Normally, 

a warrant in Washington State is issued under CrR 2.3, but neither the state constitution nor federal 

constitution limits warrants to only those issued under CrR 2.3. “A court order may function as a 

warrant as long as it meets constitutional requirements.” State v. Garcia-Salgado, 170 Wn.2d 176, 

186, 240 P.3d 153 (2010). There is no indication that the court order here failed to meet those 

constitutional requirements. 

11 The Supreme Court reversed, holding that “a warrant authorizing extraction of a blood sample 

necessarily authorizes testing of that sample for evidence of the suspected crime” and the search 

“did not exceed the bounds of the search warrant when a sample of Martines’s blood was extracted 

and tested for intoxicants.” Figeroa Martines, 184 Wn.2d at 94.

12 Womer also argues that trial counsel was probably unaware of the Figeroa Martines decision. 

Br. of Appellant at 46. But trial counsel referenced Figeroa Martines in the second motion to 

suppress, which demonstrates that trial counsel was aware that it existed. 

13 Moreover, even if the trial court had ruled the results inadmissible, Womer has not demonstrated 

that but for trial counsel’s failure to object, the outcome of the proceeding would have been 
No. 47025-0-II

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D. LEGAL FINANCIAL OBLIGATIONS

Womer argues that the trial court erred by imposing LFOs and restitution without 

considering Womer’s current or future ability to pay. Womer’s challenge fails. 

First, Womer affirmatively waived any objection to the imposition of restitution and 

standard LFOs. Therefore, we need not consider Womer’s challenge.

Second, Womer does not distinguish between mandatory LFOs, for which the trial court 

need not consider the defendant’s ability to pay, and discretionary LFOs, which are subject to the 

requirements of RCW 10.01.160(3); see State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 

(2013). Here, the trial court imposed restitution, a crime victim assessment, a filing fee, and a 

deoxyribonucleic acid (DNA) collection fee. Restitution is mandatory pursuant to RCW 

9.94A.753(5). Lundy, 176 Wn. App. at 102. The crime victim assessment is mandatory under 

RCW 7.68.035. Lundy, 176 Wn. App. at 102. The filing fee is mandatory pursuant to RCW 

36.18.020(2)(a) and (h). Lundy, 176 Wn. App. at 102. And, the DNA collection fee is mandatory 

under RCW 43.43.7541. Lundy, 176 Wn. App. at 102. Thus, the court imposed no discretionary 

LFOs. “Because the legislature has mandated imposition of these legal financial obligations, the 

trial court’s ‘finding’ of a defendant’s current or likely future ability to pay them is surplusage.” 

Lundy, 176 Wn. App. at 103. Thus, Womer’s challenge fails.

We affirm. 

 

different. Womer was charged with causing the death of another while operating a motor vehicle: 

(a) while intoxicated, (b) in a reckless manner, or (c) with disregard for the safety of others. RCW 

46.61.520(1)(a), (b), and (c). The jury was instructed on all three alternatives. The jury returned 

a special verdict finding Womer guilty under all three alternatives. Therefore, even without the 

results of the blood test, the jury could have found Womer guilty based on RCW 46.61.520(1)(b) 

or (c). 
No. 47025-0-II

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A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

Lee, J.

We concur:

Worswick, J.

Johanson, C.J.