FILED 

JANUARY 31, 2017 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

V. 

BRYAN JACOB STORMS, 

Appellant. 

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No. 32653-5-111 

UNPUBLISHED OPINION 

KORSMO, J. -Bryan Storms appeals his conviction for vehicular homicide and 

four other crimes arising from an egregious motor vehicle collision. We affirm the 

convictions and the challenged basis for the exceptional sentence, but remand for resentencing because the State failed to establish an exigency that excused the need for a 

search warrant before drawing blood. 

FACTS 

Mr. Storms, traveling at least 45 m.p.h. on a Spokane street in a Honda Civic 

while fleeing from a police officer, ran through a stop sign and smashed into a pickup 

truck driven by Kevin Smith at 12:25 p.m. on Sunday, February 10, 2013. The collision 

sent the truck into the air before it knocked down a telephone pole. Mr. Smith was killed 

at the scene. Two of the passengers in the Honda were injured. 
No. 32653-5-III 

State v. Storms 

Storms fled the scene on foot, but a witness was able to direct officers to him. The 

officer who took him into custody noted that Storms was sweating profusely and 

constantly moving his limbs and body. Two other officers took custody of Storms and 

conducted witness show ups. Meanwhile, emergency personnel had to take the two 

passengers out of the Honda for medical treatment. Many observers had to be cleared 

from the area and the accident scene secured. Ultimately, 23 officers took part in the 

crime scene investigation. 

A "baggie" of white powder, believed to be methamphetamine, was observed by 

an officer. Medical personnel advised that Mr. Storms might need x-rays of his injuries. 

The sergeant in charge of the scene directed two officers to take Storms to the hospital 

and obtain a blood draw. They arrived at the hospital at 1 :37 p.m. A drug recognition 

expert (DRE) drove in from Ritzville, but Mr. Storms refused to submit to DRE testing. 

Ultimately, blood was drown over the objection of Mr. Storms at 2:16 p.m. Subsequent 

analysis revealed the presence of amphetamine and methamphetamine in the blood. 

Three days after the accident, the prosecutor filed the four felony driving charges. 

In each instance, it was alleged that an aggravating factor was present due to the multiple 

current offenses and the defendant's high offender score. In addition, it was alleged that 

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No. 32653-5-111 

State v. Storms 

the victim in count three suffered injuries more substantial than required to establish the 

crime. 1 

The defense moved to suppress the results of the blood draw, arguing that a search 

warrant had been required to take the defendant's blood and that exigent circumstances 

did not exist to excuse the failure. Rather than defending on the basis of the implied 

consent statute, the State argued that exigent circumstances had existed. The trial court 

ultimately agreed, concluding that exigencies existed due to the length of time needed to 

obtain a search warrant, the dissipation of substances in the defendant's blood, and the 

fear that medical treatment would further delay seizure of the blood. 

The case proceeded to jury trial one year after the incident. A jury found Storms 

guilty as charged of vehicular homicide, two counts of vehicular assault, and one count of 

felony hit and run (fatality). Jury interrogatories on the first three counts indicated the 

jury's unanimous agreement that Storms had committed each crime by all methods 

alleged in the charging documents--by driving while under the influence (DUI), while 

driving in a reckless manner, and while driving with disregard for the safety of others. 

The jury also returned a special verdict on count three finding that the injuries to victim 

1 The information subsequently was amended to add a count of driving while license 

suspended in the third degree. The defendant pleaded guilty to that count prior to trial. 

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No. 32653-5-III 

State v. Storms 

Lynn Blumer substantially exceeded the level of bodily harm necessary to establish 

substantial bodily injury. 

The matter proceeded to sentencing. The court found that both charged 

aggravating factors existed and declared an exceptional sentence. The court imposed a 

total term of 448 months by running the standard range sentences on the first three counts 

consecutively. Mr. Storms timely appealed to this court. Appropriate findings in support 

of the suppression ruling and the exceptional sentence were entered. 

Appointed counsel filed a brief solely attacking the evidence supporting the 

special verdict on count three. Mr. Storms filed a statement of additional grounds (SAG) 

challenging the court's ruling on the suppression hearing. This court directed both 

counsel to brief the exigent circumstances issue, and then to file supplemental briefs as 

additional opinions were released by the United States and Washington Supreme Courts. 

Ultimately, the matter proceeded to argument before a panel of this court. 

ANALYSIS 

We consider first the issue initially presented by the SAG before turning to the 

sufficiency of the evidence to support the special verdict. 

Exigent Circumstances 

This issue is complicated by the fact that the United States Supreme Court may, or 

may not, have changed the rules governing this situation after the arrest in this case. 

Believing that the rules had changed, the State tried to justify the blood draw on the basis 

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No. 32653-5-III 

State v. Storms 

of a theory officers had not relied on during the arrest. We disagree that the State 

established an exigency excusing the need to obtain a search warrant for Mr. Storms' 

blood. 

As it existed at the time of the arrest in this case, Washington's implied consent 

statute provided: 

Except as provided in this section, the test administered shall be of the 

breath only. If an individual is unconscious or is under arrest for the crime 

of felony driving under the influence of intoxicating liquor or drugs under 

RCW 46.61.502(6), felony physical control of a motor vehicle while under 

the influence of intoxicating liquor or any drug under RCW 46.61.504(6), 

vehicular homicide as provided in RCW 46.61.520, or vehicular assault as 

provided in RCW 46.61.522, or if an individual is under arrest for the crime 

of driving while under the influence of intoxicating liquor or drugs as 

provided in RCW 46.61.502, which arrest results from an accident in which 

there has been serious bodily injury to another person, a breath or blood test 

may be administered without the consent of the individual so arrested. 

Former RCW 46.20.308(3) (2012). As written, the statute removed the ability of certain 

defendants to revoke their consent to alcohol testing. State v. Judge, 100 Wn.2d 706, 

710-711, 675 P.2d 219 (1984). 

After charges were filed in this case, the United States Supreme Court issued its 

decision in Missouri v. McNeely, 569 U.S._, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). 

There the court concluded that the natural dissipation of alcohol in the bloodstream alone 

did not justify a warrantless blood draw of a DUI suspect. 185 L. Ed. 2d at 702. The 

court revisited its decision in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 

L. Ed. 2d 908 ( 1966), given the technological developments of the past half century. Id. 

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No. 32653-5-111 

State v. Storms 

The court also noted that, unlike Missouri, many states such as Washington had chosen to 

limit the circumstances in which nonconsensual blood draws could be taken. Id. at 713 

n.9. It ultimately held that the Fourth Amendment requires officers obtain a warrant 

where they can do so within a reasonable time, and where it will not "significantly" 

undermine "the efficacy of the search." Id. at 707. 

In response to McNeely, the Washington Legislature promptly amended the 

implied consent statute. The second sentence ofRCW 46.20.308(3) was changed to read 

the breath or blood test could be administered without consent "pursuant to a search 

warrant, a valid waiver of the warrant requirement, or when exigent circumstances exist." 

LAWS OF 2013, 2d Sp. Sess., ch. 35, § 36.2 This version of the statute was in effect at the 

time of the suppression hearing held in this case. 

Before turning to the exigency argument, it is important first to note what we are 

not deciding. The State has eschewed reliance on the former implied consent statute both 

in the trial court and in briefing to this court. Accordingly, the validity of the former 

implied consent statute's authorization of mandatory testing without consent is not before 

us. The State has chosen solely to rely on the exigency exception to the search warrant 

requirement. 

2 The legislature deleted existing RCW 46.20.308(3) and enacted a similar 

provision, RCW 46.20.308(4) in 2015. See LAWS OF 2015, 2d Sp. Sess. ch. 3, § 5. 

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No. 32653-5-111 

State v. Storms 

Exigent circumstances excuse the need for a warrant where it is not practical for 

the State to obtain a warrant because the inherent delay would "compromise officer 

safety, facilitate escape or permit the destruction of evidence." State v. Smith, 165 Wn.2d 

511,517, 199 P.3d 386 (2009) (internal quotation marks omitted). In certain 

circumstances, the mobility or destruction of evidence can be considered an exigent 

circumstance. State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983); State v. Komoto, 

40 Wn. App. 200, 207-208, 697 P.2d 1025 (1985). Specifically, the need for naturally 

dissipating evidence in the body, such as blood alcohol, can support a finding of exigent 

circumstances. McNeely, 185 L. Ed. 2d at 709. However, the court must look at the 

totality of the circumstances. Id. The State bears the burden of establishing the exigency. 

State v. Tibbles, 169 Wn.2d 364, 369, 236 P.3d 885 (2010). 3 

The trial court found that the exigent circumstances justifying the warrantless 

blood draw in this case were the length of time to obtain a warrant and the potential delay 

resulting from expected medical treatment. Neither factor establishes why a warrant was 

not a practical answer in this case. 

3 The State also bears the burden of establishing probable cause to believe evidence 

of the crime will be found. Komoto, 40 Wn. App. at 206. The record overwhelmingly 

established probable cause to believe that Mr. Storms was under the influence at the time 

of the accident. His prose arguments to the contrary are meritless and will not be further 

discussed in light of our ultimate conclusion. 

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No. 32653-5-III 

State v. Storms 

Although the State presented testimony that it could have taken as much as four 

hours to write, obtain, and execute the warrant on a Sunday afternoon, it failed to address 

other, more practical approaches to obtaining a warrant. For instance, Washington 

permits communication of search warrant authority "by any reliable means." CrR 2.3( c ). 

There is no indication that an officer could not have contacted a judge by telephone, fax 

machine, or e-mail in an effort to promptly obtain judicial authorization for a search. 

There also is no indication that 1 of the 23 officers could not have begun work on seeking 

a warrant shortly after the defendant's arrest. If all were needed to perform emergency 

services at the scene such as tending to victims, assisting aid personnel, or directing 

traffic, evidence of that fact could have been presented at the suppression hearing. There 

was no such evidence. In short, there needed to be some evidence explaining why other 

alternatives would not have worked, in addition to explaining why the officers did what 

they did. 

Similarly, the fact that officers reasonably expected the defendant to undergo xrays is not a particularly compelling fact. X-rays typically do not take much time nor 

require treating the defendant prior to the examination. If particularly involved 

procedures were anticipated, evidence of that fact could have been presented. Indeed, 

with the benefit of hindsight, evidence establishing what procedures the defendant did 

undergo and how those would have delayed blood testing might have established this 

factor. If, for instance, the defendant was expected to undergo a lengthy surgery, or had 

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No. 32653-5-111 

State v. Storms 

actually done so, that evidence might well have justified reliance on pending medical 

treatment as an exigency. However, in this record there is no indication the defendant 

underwent any treatment, let alone significantly lengthy treatment. 

In sum, the evidence does not support the trial court's conclusion that a 

warrantless blood draw was the only practical method of proceeding on this occasion.4 

The State has not satisfied its burden that an exigent circumstance exists. It presented no 

evidence that a telephonic warrant was unavailable, nor did it explain why one officer 

could not seek a warrant while another officer transported Mr. Storms. Both the holding 

and reasoning of McNeely weigh against finding an exigent circumstance on this record. 

A warrantless blood draw might have been justified here, but this record simply does not 

support that conclusion. 

Accordingly, the trial court erred when it denied the motion to suppress the blood 

draw. We also conclude that the error was not harmless with respect to the under the 

influence prong of the vehicular homicide and vehicular assault convictions. While there 

was ample evidence suggesting impairment from the testimony of responding officers, 

the strongest and most objective evidence of impairment came from the blood test results. 

4 Another factor on which evidence was lacking concerned the dissipation rate of 

controlled substances. Here, the authorities reasonably suspected use of methamphetamine, 

but presented no evidence whether that substance or other street drugs were subject to rapid 

dissipation. 

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No. 32653-5-111 

State v. Storms 

Accordingly, we cannot conclude that the blood test evidence did not affect the verdict on 

the under the influence prong of the three offenses. However, that evidence did not affect 

the verdict on the reckless manner and disregard for the safety of others prongs. The jury 

was told to consider the offenses separately and the impairment evidence had no 

particular relevance to the other two prongs. Moreover, the details of the collision 

(speed, ignoring a stop sign) were not in dispute; both the State and defense experts 

concurred on the facts of the incident. 5 The evidence overwhelmingly backed the 

reckless manner and disregard of safety of others prongs of the three charges. We 

conclude that error in the admission of the blood test results was harmless beyond a 

reasonable doubt as to the other prongs of the offenses. The special interrogatory 

answers were not tainted by the blood examination results. 

The remaining question is the remedy. The State would be entitled to retry the 

charges on the under the influence theory because ample evidence still exists to support a 

jury verdict. However, the prosecutor at oral argument elected to have the case resentenced rather than retried in the event that the blood test was suppressed. Since the 

State is waiving its opportunity to retry the case, we remand for resentencing on the other 

prongs of the three offenses. 

5 The defense closing argument noted that the experts agreed and was focused 

nearly entirely on disputing whether the State had established the impairment prong of 

the charges. 

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No. 32653-5-III 

State v. Storms 

Aggravating Factors 

The remaining issue for consideration is the defense claim that the evidence did 

not support the jury's special verdict that the injuries suffered by Ms. Blumer were 

substantially greater than necessary to establish substantial bodily injury. 6 The evidence 

supports the jury's verdict. 

Whether the evidence supports a jury's special verdict is reviewed for substantial 

evidence. State v. DeLeon, 185 Wn. App. 171, 212, 341 P.3d 315 (2014). Evidence is 

sufficient where the jury could find each element proved beyond a reasonable doubt. Id. 

This court reviews the evidence in the light most favorable to the State. State v. 

Hacheney, 160 Wn.2d 503,512, 158 P.3d 1152 (2007). 

RCW 9.94A.535(3)(y) provides that it is an aggravating factor that a "victim's 

injuries substantially exceeded the level of bodily harm necessary to satisfy the elements 

of the offense." To establish vehicular assault, the State was required to prove 

"substantial bodily harm to another." RCW 46.61.522. "Substantial bodily harm means 

bodily injury which involves a temporary but substantial disfigurement, or which causes 

a temporary but substantial loss or impairment of the function of any bodily part or organ, 

or which causes a fracture of any bodily part." RCW 9A.04.110( 4 )(b) (internal quotation 

6 The defense does not challenge the trial court's finding that the "free crimes" 

aggravator was present on all four felony offenses. RCW 9.94A.535(2)(c). 

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No. 32653-5-111 

State v. Storms 

marks omitted). The harm to the victim does not need to reach the next statutory 

category of harm to satisfy the "substantially exceed" test. State v. Pappas, 176 Wn.2d 

188,192,289 P.3d 634 (2012). 

The evidence supports the jury's verdict. Ms. Blumer suffered a traumatic brain 

injury that was still symptomatic a year after the crash. A doctor also testified that the 

impaired cognitive function from these injuries usually last a year but can be permanent. 

"Great bodily harm" is satisfied where the victim suffers an injury that causes 

"permanent loss or impairment ... of any bodily part or organ." RCW 9A.04.110(4)(c). 

Because of her long-term cognitive dysfunction, Ms. Blumer's injuries almost reach 

"great bodily harm." This fact indicates they substantially exceed substantial bodily 

harm. See Pappas, 176 Wn.2d at 192 ("While the jump between statutory categories of 

harm necessarily meets the 'substantially exceed' test, injuries can 'substantially exceed' 

one category of harm without reaching the severity of the next category."). 

The evidence allowed the jury to find that Ms. Blumer suffered injuries that 

significantly exceeded the level of bodily harm necessary to establish the offense. The 

evidence thus was sufficient to support the jury's special verdict. 

The convictions are affirmed, but the three jury interrogatories that concluded the 

crimes were committed while under the influence are reversed. The aggravating factors 

found by the jury and the court are affirmed. The case is remanded for resentencing. 

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No. 32653-5-111 

State v. Storms 

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 

5)i:ilt;cu Siddoway, J. ~ , ~ 

Pennell, J. 

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