### FILED JANUARY 31, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent, V. BRYANJACOB STORMS, Appellant. ) ) ) ) ) ) ) ) ) No. 32653-5-111

UNPUBLISHED OPINION
KORSMO, J. -Bryan Storms appeals his conviction for vehicularhomicide and four other crimes arising from an egregious motorvehicle collision. We affirm the convictions and the challengedbasis for the exceptional sentence, butremand for resentencing becausethe State failed to establish an exigency that excusedthe need for a searchwarrantbefore 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, ranthrough 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 sentthe truck into the airbefore it knocked down a telephonepole. Mr. Smithwas killed at the scene. Two ofthepassengers in the Hondawere 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 officerwho tookhim into custody noted that Storms was sweatingprofusely and constantly moving his limbs and body. Two other officers took custody ofStorms and conducted witness show ups. Meanwhile, emergencypersonnel had to take the two passengers out ofthe Honda for medical treatment. Many observers had to be cleared from the area and the accident scene secured. Ultimately, 23 officers tookpartin the crime scene investigation. A "baggie" ofwhitepowder, believed to be methamphetamine, was observedby
an officer. Medical personnel advised thatMr. Storms might needx-rays ofhis injuries. The sergeant in charge ofthe 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, butMr. Storms refused to submit to DREtesting. Ultimately, blood was drown overthe objection ofMr. Storms at 2:16 p.m. Subsequent analysis revealed the presence ofamphetamine 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

2

### 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 ofthe 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 ofthe implied consent statute, the State argued that exigent circumstances had existed. The trial court ultimately agreed, concluding that exigencies existed due to the length oftime needed to obtain a search warrant, the dissipation ofsubstances in the defendant's blood, and the fear that medical treatment would further delay seizure ofthe blood. The case proceededtojury trial one year after the incident. Ajury found Storms guilty as charged ofvehicularhomicide, two counts ofvehicular assault, and one count of felony hit and run (fatality). Jury interrogatories on the first three counts indicatedthe jury'sunanimous agreement that Storms had committed each crime by all methods alleged in the charging documents--by driving while underthe influence (DUI), while driving in a reckless manner, and while driving with disregard for the safety ofothers. Thejury also returned a special verdict on countthree finding that the injuries to victim

1The information subsequently was amended to add a count ofdriving while license suspended in the third degree. The defendant pleaded guilty to that countpriorto trial.



### 3No. 32653-5-III State v. Storms Lynn Blumer substantially exceeded the level ofbodily harm necessary to establish substantial bodily injury. The matter proceeded to sentencing. The court found thatboth charged aggravating factors existed and declared an exceptional sentence. The court imposed a total term of448 months by running the standard range sentences on the first three counts consecutively. Mr. Storms timely appealed to this court. Appropriate findings in support ofthe suppression ruling and the exceptional sentence were entered. Appointed counsel filed a briefsolely attacking the evidence supportingthe special verdict on countthree. Mr. Storms filed a statement ofadditional grounds (SAG) challenging the court's ruling on the suppression hearing. This court directed both counsel to briefthe exigent circumstances issue, and then to file supplemental briefs as additional opinions were released by the United States and Washington Supreme Courts. Ultimately, the matterproceededto argument before apanel ofthis court. ANALYSIS We consider first the issue initially presented by the SAG before turning to the sufficiency ofthe evidence to supportthe 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 tojustifythe blood draw on the basis 4No. 32653-5-III State v. Storms
ofa theory officers had not relied on during the arrest. We disagree thatthe State established an exigency excusing the need to obtain a search warrant for Mr. Storms' blood. As it existed at the time ofthe arrest in this case, Washington's implied consent statute provided: Except as provided in this section, the test administered shall be ofthe breath only. Ifan individual is unconscious or is under arrest for the crime offelony driving underthe influence ofintoxicating liquor or drugs under RCW 46.61.502(6), felony physical control ofa motorvehicle while under the influence ofintoxicating liquor or any drug underRCW 46.61.504(6), vehicularhomicide as provided in RCW 46.61.520, orvehicular assault as provided in RCW 46.61.522, or ifan individual is under arrest for the crime ofdriving while underthe influence ofintoxicating 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 anotherperson, a breath orblood test may be administered withoutthe consent ofthe individual so arrested. FormerRCW 46.20.308(3) (2012). As written, the statute removed the ability ofcertain 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 inMissouri v. McNeely, 569 U.S._, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013). There the court concluded thatthe natural dissipation ofalcohol in the bloodstream alone did notjustify a warrantless blood draw ofa DUI suspect. 185 L. Ed. 2d at 702. The courtrevisited its decision in Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), given the technological developments ofthe pasthalfcentury. Id. 5No. 32653-5-111 State v. Storms
The court also noted that, unlike Missouri, many states such as Washington had chosento limit the circumstances in which nonconsensual blood draws couldbetaken. 

### Id. at 713 n.9. 

### It ultimately heldthat the Fourth Amendmentrequires officers obtain a warrant where they can do so within a reasonable time, and where it will not "significantly" undermine "the efficacy ofthe search." Id. at 707. In response to McNeely, the Washington Legislature promptly amendedthe implied consent statute. The second sentence ofRCW46.20.308(3) was changed to read the breath or blood test could be administered without consent "pursuantto a search warrant, a valid waiver ofthe warrantrequirement, orwhen exigent circumstances exist." LAWS OF 2013, 2d Sp. Sess., ch. 35, § 36.2 This version ofthe statute was in effect atthe time ofthe suppression hearing held in this case. Before turning to the exigency argument, it is important first to note whatwe are not deciding. The State has eschewedreliance onthe former implied consent statute both in the trial court and in briefing to this court. Accordingly, the validity ofthe former implied consent statute's authorization ofmandatory testing without consent is notbefore
us. The State has chosen solely to rely on the exigency exception to the searchwarrant requirement.

2 The legislature deleted existing RCW46.20.308(3) and enacted a similar provision, RCW46.20.308(4) in 2015. See LAWS OF 2015, 2d Sp. Sess. ch. 3, 

### § 5.

6No. 32653-5-111 

### State v. Storms Exigent circumstances excuse the need for a warrant where it is notpractical for the State to obtain a warrant because the inherent delay would "compromise officer safety, facilitate escape or permitthe destruction ofevidence." 

### State v. Smith, 165 Wn.2d 511,517, 199 P.3d 386 (2009) (internal quotation marks omitted). In certain circumstances, the mobility or destruction ofevidence 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 ofexigent circumstances. 

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

### Id. The State bears the burden ofestablishingthe exigency. 

### State v. Tibbles, 169 Wn.2d 364, 369, 236 P.3d 885 (2010). 3 The trial court found that the exigent circumstancesjustifyingthe warrantless blood draw in this case were the length oftime to obtain a warrant and the potential delay resulting from expected medical treatment. Neither factor establishes why a warrant was not apractical answer in this case.

3 The State also bears the burden ofestablishingprobable cause to believe evidence ofthe 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 ofthe accident. His prose arguments to the contrary are meritless and will not be further discussed in light ofour ultimate conclusion.

7No. 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 ofsearch warrant authority "by any reliable means." CrR2.3(c). There is no indicationthat an officer could not have contacted ajudgeby telephone, fax machine, or e-mail in an effortto promptly obtainjudicial authorization for a search. There also is no indication that 1ofthe 23 officers could not have begun work on seeking
a warrant shortly after the defendant's arrest. Ifall were needed to perform emergency services at the scene such as tending to victims, assisting aid personnel, or directing traffic, evidence ofthat fact couldhave 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 nottake much time nor require treating the defendantpriorto the examination. Ifparticularly involved procedures were anticipated, evidence ofthat fact could have been presented. Indeed, with the benefit ofhindsight, evidence establishing what procedures the defendant did undergo and how those would have delayedblood testing might have established this factor. If, for instance, the defendant was expected to undergo a lengthy surgery, or had 8

### No. 32653-5-111 State v. Storms actually done so, that evidence might well havejustifiedreliance onpending 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 supportthe trial court's conclusion that a warrantless blood draw was the only practical method ofproceeding on this occasion.4 The State has not satisfied its burdenthat an exigent circumstance exists. Itpresented no evidence that a telephonic warrant was unavailable, nor did it explain why one officer could not seek a warrant while another officertransported Mr. Storms. Boththe holding and reasoning ofMcNeely weigh against finding an exigent circumstance on this record. A warrantless blood draw mighthave beenjustifiedhere, butthis record simply does not supportthat 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 underthe influence prong ofthe vehicular homicide and vehicular assault convictions. While there
was ample evidence suggesting impairment from the testimony ofresponding officers, the strongest and most objective evidence ofimpairment came from the blood testresults.

4 Another factor on which evidence was lacking concerned the dissipation rate of controlled substances. Here, the authorities reasonably suspected use ofmethamphetamine, butpresented no evidence whether that substance or other street drugs were subjectto rapid dissipation.

9

### No. 32653-5-111 State v. Storms Accordingly, we cannot conclude thatthe blood test evidence did not affectthe verdict on the underthe influence prong ofthe three offenses. However, that evidence did not affect the verdict onthe reckless manner and disregard for the safety ofothers prongs. Thejury
was told to considerthe offenses separately and the impairment evidence had no particularrelevance to the othertwo prongs. Moreover, the details ofthe collision (speed, ignoring a stop sign) were not in dispute; boththe State and defense experts concurred on the facts ofthe incident.5 The evidence overwhelmingly backed the reckless manner and disregard ofsafety ofothers prongs ofthe three charges. We conclude that error inthe admission ofthe bloodtest results was harmless beyond a reasonable doubt as to the otherprongs ofthe offenses. The special interrogatory
answers were nottainted by the blood examinationresults. Theremaining question is the remedy. The State would be entitledtoretry the charges onthe under the influence theory because ample evidence still exists to support a juryverdict. 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 ofthe three offenses.

5 The defense closing argument noted thatthe experts agreed and was focused nearly entirely on disputing whetherthe State had established the impairmentprong of the charges. 10No. 32653-5-III State v. Storms AggravatingFactors The remaining issue for consideration is the defense claim that the evidence did not support thejury's special verdict that the injuries suffered by Ms. Blumerwere substantially greater than necessary to establish substantial bodily injury. 6 The evidence supports thejury'sverdict. Whether the evidence supports ajury'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 thejury 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 exceededthe level ofbodily harm necessary to satisfy the elements ofthe 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, orwhich causes
atemporary but substantial loss or impairment ofthe function ofany bodily part or organ,
orwhich causes a fracture ofany 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).
11

### No. 32653-5-111 State v. Storms
marks omitted). The harm to the victim does not need to reach the next statutory category ofharm to satisfy the "substantially exceed" test. State v. Pappas, 176 Wn.2d 188,192,289P.3d 634 (2012). The evidence supports thejury'sverdict. 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. "Greatbodily harm" is satisfied where the victim suffers an injury that causes "permanent loss or impairment
... ofany bodily part or organ." RCW 9A.04.110(4)(c). Because ofher long-term cognitive dysfunction, Ms. Blumer's injuries almostreach "greatbodily harm." This fact indicates they substantially exceed substantial bodily harm. See Pappas, 176 Wn.2d at 192 ("While thejump between statutory categories of harm necessarily meets the 'substantially exceed' test, injuries can 'substantially exceed'
one category ofharm without reaching the severity ofthe next category."). The evidence allowed thejury to find that Ms. Blumer suffered injuries that significantly exceeded the level ofbodily harm necessary to establish the offense. The evidence thus was sufficient to support thejury's special verdict. The convictions are affirmed, but the threejury interrogatories that concluded the crimes were committed while under the influence are reversed. The aggravating factors found by thejury and the court are affirmed. The case is remanded for resentencing.

12No. 32653-5-111 State v. Storms
A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR: 

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

# ~
Pennell, J.

13