### FILED DEC.3, 2015 In the Office ofthe ClerkofCourt W A StateCourtofAppeals, Division III

IN THE COURT OFAPPEALS OF THE STATE OFWASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 33088-5-111 Respondent, ) ) 

### v. ) ) GISELA M. SEDANO, ) ) UNPUBLISHED OPINION Appellant. ) 

# 1 1 BROWN, 

### J.

- Gisela M. Sedano appeals hervehicular assault-underthe influence conviction, arguing the trial court erred in denying her pre-trial suppression motion. Wedisagree, and affirm. FACTS Washington StateTrooperAnthony Witneywasfollowing a vehiclefrom a distance on a rural road when the vehicle suddenly swerved to avoid an oncoming vehicle. The driverdid not swerve fast enough and the vehicles collided, causing injuriesto both drivers. OfficerWitney approached the driverofthe oncoming vehicle and observed an unconscious Ms. Sedano in the driverseat. TrooperWitney could smell intoxicants in hervehicle.

### No. 33088-5-111 State v. Sedano Trooper Christopher Kottong, a trooper with specialized training in impaired driving, met Ms. Sedano atthe hospital. He also smelled intoxicants on her breath. Trooper Kottong contacted his off-duty sergeantto discuss logistics ofgetting a blood draw on Ms. Sedano. Hospital staffthen notified the trooperthey would be airlifting Ms. Sedanoto another hospital soon and if he wanted a blood draw he had a limited window ofavailability. Trooper Kottong knew the process ofgetting a search warrantwould take 40 minutes to an hour. This process included time to prepare the warrant using a computer in his car, contacting ajudge by telephone, obtaining thejudge's permission to sign the warrant, and then returning to the hospital for a licensed professional to perform the blood draw. Trooper Kottong decided he did not have enough time to obtain a search warrant and arranged to have Ms. Sedano's blood drawn before she leftthe hospital. Her blood alcohol level was .13, which is over Washington's legal limitfor operating a motor vehicle. The State charged Ms. Sedano with vehicular assault
- under the Influence. She unsuccessfully requested to suppress the results ofthe blood test, arguing the absence ofexigent circumstances made the warrantless seizure of her blood illegal. The court found the fact Ms. Sedano was aboutto be transported beyond the trooper's ability to obtain a blood sample "formed an exigency sufficientto excuse the warrantless blood draw." CP at 79. A jury found Ms. Sedano guilty as charged. She appeals.



### 2No. 33088-5-111 State v. Sedano

ANALYSIS The issue is whetherthe trial court erred in denying Ms. Sedano's suppression motion forthe warrantless blood draw. Mr. Sedano contends a warrant was required underthe Supreme Court's holding in Missouri v. McNeelydeciding "the natural dissipation ofalcohol in the blood" is not a per se exigencyjustifying a warrantless blood draw. Missouri v. McNeely, _U.S._, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696 (2013).In reviewing the denial ofa suppression motion, we "determine []whether substantial evidence supports the challenged findings offact and whetherthe findings support the conclusions oflaw." State v. GaNin, 166Wn.2d 242,249,207 P.3d 1266 (2009). Substantial evidence exists when it is enough "to persuade a fair-minded person ofthe truth ofthe stated premise." Id. (citation omitted). Conclusions of law from an order on a suppression motion are reviewed de novo. Id. U[T]he taking ofblood 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). U[A] warrantless search ofthe person is reasonable only if itfalls within a recognized exception," such as consent or exigent circumstances. McNeely, 133 S. Ct. at 1558, 1566. State v. Komoto, 40 Wn. App. 200, 697 P.2d 1025 (1985) is instructive. There, the State argued awarrantless entry ofa hit and run suspect's residence wasjustified to conduct a blood draw. Division One ofthis court held, "the need forthe immediate



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# ] I No. 33088-5-111 State v. Sedano 

# I taking ofa blood sample underthe circumstances ofthis case was a sufficient exigency to justify proceeding without a warrant, orwithout attempting to obtain a telephonically authorized warrant." Id. at 214. In contrast, in State 

### v. Hinshaw, 149Wn. App. 747, 756, 205 P.3d 178 (2009), this court reversed convictions for driving while underthe influence, first degree negligent driving, and hit and run, holding a warrantless entry into the defendant's home to conduct a blood drawwas unconstitutional. There, however, there was no evidence of "some real immediate and serious consequence resulting from a delay in obtaining a warrant." Id. at 755. Here, two officers smelled intoxicants on Ms. Sedano's breath, she had just caused a head-on collision, and she admitted to drinking priorto driving. The accident occurred in a rural area. She was taken by ambulance to a local hospital, but dueto her injuries she needed to be airlifted to a larger hospital. Trooper Kottong only had a limited window before Ms. Sedano would be transported. Because alcohol dissipates in the blood stream overtime, Trooper Kottong could not get an accurate reading ifthe blood was not tested before she left the area and she would become unavailablefor a blood draw afterthe airlift. "Exigent circumstances" are an exception to the search warrant requirement. An exigent circumstance exists where "obtaining a warrant is not practical becausethe delay inherent in securing a warrantwould

... permitthe destruction ofevidence." State v. Smith, 165Wn.2d 511, 517, 199 P.3d 386 (2009). The McNeeleycourt held 

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# I i l 1No. 33088-5-111 State v. Sedano exigency is determined case-by-case. based on the totality ofthe circumstances. 

### 133 S. Ct. at 

### 1559. While the dissipation ofalcohol in the blood is not a perse exigency, it is still an exigency when coupled with other extenuating circumstances. Here, Trooper Kottong
wastold Ms. Sedanowas being transported in the very nearfuture to another hospital. The opportunity to do a blood drawwould be lost. Given the totality ofthe circumstances, Ms. Sedano's imminent transport "formed an exigency sufficientto
excuse the warrantless blood draw." CP at 79. The findings offact supportthe trial court's conclusion. Thus, the trial court did not err in denying Ms. Sedano's suppression motion. Affirmed. A majority ofthe 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. Brown, A.C.J. 

# q WE CONCUR:

# ~ 

# , (j.

# Fearin~ Lawrence-Berrey, J.



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