State v. Baird , 187 Wash. 2d 210 ( 2016 )

Madsen, C.J.

¶ 1 These consolidated cases require us to decide whether the State can offer a driver’s refusal to take a breath test under Washington’s implied consent statute, RCW 46.20.308,¹ as evidence of guilt at a criminal trial after the Supreme Court’s decision in Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013) (plurality opinion).

¶2 Washington’s implied consent statute facilitates law enforcement in obtaining evidence of blood alcohol content (BAC) for prosecution of driving under the influence (DUI) cases by authorizing an officer to request a breath sample from drivers arrested for DUI. See City of Seattle v. St. John, 166 Wn.2d 941, 947, 215 P.3d 194 (2009). Under the statute, a driver is given the choice to refuse or consent to a breath test. RCW 46.20.308(2). If the driver refuses to provide a breath sample, the driver’s refusal may be used as evidence of guilt at a subsequent criminal trial. State v. Long, 113 Wn.2d 266, 272-73, 778 P.2d 1027 (1989); RCW 46.20.308(2)(b). In the two cases here, an officer asked each defendant to submit to a breath test. Dominic Baird agreed to the test, and Collette Adams refused it. Baird’s test results showed a BAC above the legal limit.

¶3 Pretrial, both defendants moved to suppress the evidence, arguing the breath test was a request to consent to a warrantless search and they had a constitutional right to refuse consent. Consequently, the State could not use their refusal as evidence of guilt. Baird further argued that because the officer told him that his refusal could be used as evidence, the officer coerced his consent through an unlawful threat, thereby invalidating his consent. The State took the position that the defendants had no constitutional right to refuse because the exigent circumstances exception to the warrant requirement applies in all DUI cases. Due to the body’s natural elimination of alcohol from the bloodstream as time passes, the delay necessary to obtain a warrant is impractical since the delay will cause the destruction of DUI evidence.

¶4 Relying on McNeely and State v. Gauthier, 174 Wn. App. 257, 298 P.3d 126 (2013), the trial court in each case held the defendants had a constitutional right to refuse consent to the warrantless breath test. In McNeely, the United States Supreme Court held that alcohol dissipation in routine DUI cases does not create per se exigent circumstances and that the State failed to prove that any warrant exception applied to justify a search of the defendant’s blood for evidence of intoxication. In Gauthier, the Court of Appeals held that a defendant has a constitutional right to refuse consent to a warrantless search that did not fall under an exception to the warrant requirement and that refusal may not be admitted as evidence of guilt at a criminal trial. Reading these cases together, the Baird trial court reasoned that exigent circumstances did not justify a warrantless breath test and that Baird’s consent was coerced, and it suppressed the test results. Similarly, the Adams trial court reasoned that evidence of Adams’s refusal must be suppressed.

¶5 The State petitioned King County Superior Court for an interlocutory writ of review; review was granted and the cases consolidated. In the interests of justice, the superior court requested direct review from this court, finding that the district court rulings substantially altered the status quo regarding thousands of breath test and breath test refusal DUI cases.

¶6 We accepted review and now reverse. The district courts correctly rejected the State’s argument that alcohol dissipation constitutes exigency per se—exigency must be determined under the totality of circumstances, case by case. We hold that the implied consent statute does not authorize a warrantless search, and that a driver has no constitutional right to refuse a breath test because such a search falls under the search incident to arrest exception to the warrant requirement. Further, although the implied consent statute gives a driver a statutory right to refuse the test, by exercising the privilege to drive, a driver consents to admitting that refusal to take the breath test into evidence. Accordingly, we hold that a driver’s refusal is admissible as evidence of guilt under Washington’s implied consent law.

FACTS

State v. Baird

¶7 On November 12,2012, around 9:40 p.m., Washington State Patrol (WSP) Trooper Phil Riney was on patrol on State Route 167 in south King County when he saw a vehicle driven by Baird weaving between lanes. He watched as Baird’s vehicle drifted from one lane into another and then jerked back. Within one mile of travel, Baird repeated this behavior several times. He did, however, use his turn signal with each lane change. In addition to weaving, his speed fluctuated between 45 and 70 miles per hour on the roadway, which had a speed limit of 60 miles per hour. After observing Baird’s behavior, Trooper Riney initiated a traffic stop.

¶8 Baird rolled his window down, and Trooper Riney smelled “intoxicants” and green (unsmoked) marijuana. Clerk’s Papers (CP) at 142. Baird had watery and bloodshot eyes and denied that he had marijuana in the car or that he had been drinking.

¶9 Trooper Riney asked him to step out of the vehicle, and Baird admitted that he had consumed a drink over an hour before. Baird performed voluntary field sobriety tests, including the walk and turn test and the horizontal gaze nystagmus test. The results suggested that Baird was impaired, so Trooper Riney arrested him.

¶10 WSP Trooper Christopher Poague came to the scene and transported Baird to the city of Kent Police Department for DUI processing. Trooper Poague read the statutory implied consent warnings (ICWs), RCW 46.20.308(2), and requested that Baird consent to a breath test for the purpose of determining his BAC. The ICWs include the warning that if the person refuses to consent to a breath test, that person’s license will be revoked for at least one year and that the refusal may be used as evidence at a subsequent criminal trial. RCW 46.20.308(2)(a)-(b).

¶11 Baird agreed to take the breath test. He provided two breath samples, measuring 0.138 and 0.130, well above the legal breath alcohol concentration limit of 0.08. RCW 46.20.308(5).

¶12 The State charged Baird with one count of DUI in King County District Court. Baird moved to suppress the breath test results. He argued the breath test was a search and under the Fourth Amendment to the United States Constitution and article I, section 7 of Washington’s constitution, he had the right to refuse consent to the warrantless search because no warrant exceptions applied. And if he had the constitutional right to refuse consent, the State could not use his refusal as evidence of guilt at a criminal trial under Gauthier. Although he consented to the test, the warning in RCW 46.20.308(2)(b)—stating refusal evidence may be used against the driver—coerced his consent because it stated a threat that the State had no authority to carry out.

¶13 The State argued that Baird had no constitutional right to refuse because when an officer requests a breath test under the implied consent statute, exigent circumstances always exist due to the natural dissipation of alcohol from the body as time passes. Any time delay would lead to the further destruction of DUI evidence, making the delay necessary to obtain a warrant impractical.

¶14 The trial court granted Baird’s motion to suppress. Relying on McNeely, the court held that exigency is determined from the totality of circumstances. The court therefore rejected the State’s per se argument and also concluded that no other warrant exceptions applied. Although the court recognized actual consent as another exception to the warrant requirement, it accepted a concession made by the State during oral argument that the ICWs coerced Baird’s consent if Baird had a constitutional right to refuse the test.

State v. Adams

¶15 On April 6, 2013, around 2:00 a.m., WSP Trooper David Kiel was on patrol in downtown Bellevue. He saw Adams driving with her right headlight out and activated his emergency lights. Adams did not immediately pull over on the street, so Trooper Kiel used his car’s PA (public address) system and told Adams to stop, which she did about 75 feet into a parking garage.

¶16 Trooper Kiel noticed the smell of alcohol coming from Adams’s car, and he asked her to exit the vehicle. As Adams closed the door, she almost lost her balance. Trooper Kiel asked Adams if she had had anything to drink, and she said that she had consumed one drink about an hour earlier. He smelled alcohol on her breath and noted that she had slurred speech. He asked if she would perform some field sobriety tests. She declined and said that she would take a blood test. After Trooper Kiel said he would let her go if she passed the tests, she agreed to take a horizontal gaze nystagmus test and a walk and turn test. The results of the tests suggested Adams was intoxicated.

¶17 Trooper Kiel arrested Adams and transported her to the city of Clyde Hill Police Department. Without a warrant, he read her the statutory ICWs and requested that she consent to a breath test. Adams refused.

¶18 The State charged Adams with one count of DUI and the sentencing enhancement for refusing the breath test. Adams moved to suppress evidence of her refusal, arguing that she had a constitutional right to refuse and, consequently, her refusal could not be used as evidence at a criminal trial. The State argued that she had no constitutional right to refuse the test because the exigent circumstances exception always applies when an officer requests a breath test under the implied consent statute due to the natural dissipation of alcohol. The district court rejected the State’s argument and granted the motion to suppress. The court concluded that no warrant exceptions applied; Adams had a constitutional right to refuse consent; and, accordingly, the State could not use her refusal as substantive evidence of guilt under Gauthier.

Statutory Writ of Review

¶19 The State petitioned King County Superior Court for an interlocutory writ of review under RCW 7.16.040 and City of Seattle v. Holifield, 170 Wn.2d 230, 244-45, 240 P.3d 1162 (2010). The superior court consolidated Baird and Adams and granted the State’s petition. The court noted that McNeely, the case relied on by the defendants, seemed to approve of implied consent breath testing and the penalties for refusing the test. It concluded that “McNeely arguably does not alter application of the exigent circumstances exception to a breath test administered pursuant to an implied consent law.” CP at 82. Furthermore, it recognized that the district courts’ holding that a person has a constitutional right to refuse consent to a breath test conflicted with numerous holdings by Washington appellate courts.

¶20 The superior court requested that we accept direct review, which we granted.

ANALYSIS

¶21 We review a trial court’s legal conclusions on a motion to suppress de novo. State v. Roden, 179 Wn.2d 893, 898, 321 P.3d 1183 (2014).

¶22 A breath test is a search under the Fourth Amendment and under article I, section 7. State v. Garcia-Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (2010). We presume that a warrantless search violates these constitutional provisions, and the State bears the burden to prove that one of the narrowly drawn exceptions to the warrant requirement applies. State v. Kirwin, 165 Wn.2d 818, 824, 203 P.3d 1044 (2009). We have recognized that exigent circumstances may excuse the need for a warrant when the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence. State v. Tibbles, 169 Wn.2d 364, 370, 236 P.3d 885 (2010).

¶23 The State argues that when an officer requests a breath test under the implied consent statute, exigent circumstances exist per se because of the ongoing destruction of DUI evidence. After drinking stops, the body naturally metabolizes alcohol from the bloodstream, thereby making the delay necessary to obtain a warrant impracticable.

¶24 We recognize that our precedent supports the State’s argument. For example, in State v. Judge, we interpreted a 1975 amendment to the implied consent statute to mean that suspects in alcohol related fatalities had no right to refuse either a breath test or a blood test. 100 Wn.2d 706, 710-11, 675 P.2d 219 (1984). Therefore, according to the statute, officers could obtain a blood alcohol test without the suspect’s consent. Id. The defendant in that case challenged a blood draw—a search and seizure—taken without asking her consent as unreasonable under the Fourth Amendment and article I, section 7. Id. at 709. We held that the search was reasonable and that the taking of the blood sample did not require a warrant. Id. at 712. For support, we quoted the Supreme Court’s decision in Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), which held the emergency exception in a DUI case applied to a nonconsensual blood draw because the ongoing dissipation of alcohol—evidence of DUI—made the delay necessary to obtain a warrant impracticable under the circumstances. Judge, 100 Wn.2d at 712; see also Garcia-Salgado, 170 Wn.2d at 185 (concluding warrant not required in DUI cases because exigency exists due to evidence of alcohol constantly being eliminated from the body).

¶25 The State contends that McNeely does not control in implied consent statute cases involving breath tests. In McNeely, the Supreme Court considered and rejected the State’s per se exigency argument as applied to noncon-sensual blood draws. 569 U.S. at 145.² The Court framed the question presented as “whether the natural metaboli-zation of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Id. The Court made clear that under the Fourth Amendment, courts must evaluate the totality of the circumstances “[t]o determine whether a law enforcement officer faced an emergency that justified acting without a warrant.” Id. at 149.

¶26 The Court also reexamined Schmerber, which we relied on in Judge, and concluded that Schmerber did not hold that alcohol dissipation alone presents an exigency that excuses the warrant requirement. Id. at 150. Rather, it applied a totality of the circumstances analysis. Id. In addition to the natural dissipation of alcohol, the Court in Schmerber noted that time was lost taking the defendant to the hospital for treatment and investigating the accident scene. 384 U.S. at 770-71. Evaluating all of these circumstances together, the Court concluded the emergency exception applied in that particular case. McNeely, 569 U.S. at 151.

¶27 While the natural dissipation of alcohol may support a finding of exigency in a given case, ultimately, courts must determine exigency under the totality of the circumstances, case by case. Id. at 149. When officers can obtain a warrant in DUI investigations before taking a blood sample “without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. at 152. We believe that this same logic applies to breath tests in regard to the exigency exception to the warrant requirement.

¶28 The State attempts to distinguish McNeely, arguing it requires a totality of the circumstances analysis to determine exigency only for highly invasive blood draws; because breath tests are minimally invasive, the State contends, the reasoning in McNeely does not apply here. Essentially, the State argues for an inverse rule where courts would conclude that the less invasive the search, the more exigent the circumstances for conducting the search. We decline to adopt this approach. Whether the emergency exception applies in a given case does not depend on the invasiveness of the search.³ Rather, the exception requires a compelling need for officer action and circumstances that make the time necessary to secure a warrant impractical. Id. at 149-50; see also Birchfield v. North Dakota, _ U.S. _, 136 S. Ct. 2160, 2174, 195 L. Ed. 2d 560 (2016). Here, the State argues the same compelling need as was presented in McNeely: dissipation of alcohol in the blood makes the delay in obtaining a warrant per se impractical in DUI cases. The Supreme Court rejected this argument. Consequently, we also reject it. Exigency is determined under the totality of the circumstances, case by case. In the cases before us, the State did not present evidence of exigency to justify a warrantless search. Therefore, we agree with the district courts that the State did not establish this exception applied in either case.

¶29 Our conclusion that exigent circumstances did not justify the searches here does not, however, resolve whether the test result was admissible in Baird or whether evidence of refusal was admissible in Adams. The defendants argue that if the State cannot establish a valid warrant exception for the warrantless breath test, then they had a constitutional right to refuse consent and that under the Fourth Amendment and article I, section 7, the State cannot use their refusal as evidence of guilt at a criminal trial. Similarly, they recognize that if the State can establish a valid exception to the warrant requirement, they have no constitutional right to refuse the test. Br. of Resp’t Adams at 24. The Supreme Court of the United States has recently decided this question for us: breath tests conducted subsequent to an arrest for DUI fall under the search incident to arrest exception to the warrant requirement. Birchfield, 136 S. Ct. at 2185. Because the search falls under an exception, as the defendants themselves acknowledge, there is no constitutional right to refuse the breath test.

¶30 In Birchfield, the Supreme Court considered whether criminal penalties for refusing to take a breath test under Minnesota’s and North Dakota’s implied consent laws were constitutional. The Court held that because the “impact of breath tests on privacy is slight, and the need for BAC testing is great,” the Fourth Amendment permits breath tests as a search incident to arrest for drunk driving. Id. at 2184. Because a breath test is a permissible search incident to arrest, “the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and [petitioner] had no right to refuse it.” Id. at 2186. A driver thus has no constitutional right to refuse a breath test because the breath tests fall under the search incident to arrest exception to the warrant requirement. If the driver has no constitutional right to refuse, admitting evidence of that refusal is not a comment on the driver’s exercise of a constitutional right because no constitutional right exists. As discussed below, the right to refuse exists solely as a matter of legislative grace from the implied consent statute.

¶31 That breath tests fall under the search incident to arrest exception to the warrant requirement is what makes this case distinct from Gauthier, the primary case relied on by the defendants. 174 Wn. App. at 261-62, 264-65 (holding prosecutor violated defendant’s constitutional right to refuse by arguing at trial that defendant’s refusal to submit to a warrantless DNA (deoxyribonucleic acid) swab showed his guilt regarding the charged rape). In that case, the court analyzed the refusal to submit to a warrantless search that did not fall under an exception to the warrant requirement. Here, the search falls under such an exception; therefore, the principle from Gauthier, while still generally meritorious, does not apply to this case.

¶32 As this court has recognized before, and as the Birchfield decision further supports, we do not address the warning requirement on a constitutional basis, but as a right granted through the statutory process. Thus, while an arrestee has no constitutional right to refuse the breath test, he or she does have a statutory right under the implied consent law to refuse the test. As we observed in State v. Whitman County District Court, “The courts of this state have not addressed the warning requirements of the implied consent law on a constitutional basis, but rather as rights granted through the statutory process.” 105 Wn.2d 278, 281, 714 P.2d 1183 (1986); see also State v. Morales, 173 Wn.2d 560, 567, 269 P.3d 263 (2012); Gonzales v. Dep’t of Licensing, 112 Wn.2d 890, 896,774 P.2d 1187 (1989). As this court has stated,

“It is not our purpose to declare these statutory provisions unconstitutional. But in order for us to avoid holding them invalid, it is necessary to reconcile them with each other and to give effect to all. If the person under arrest is to be held to have refused to submit to [a breath test], he must have refused knowingly and intelligently, after being advised of his right to have a physician, etc., of his own choosing administer an additional test or tests.”

Connolly v. Dep’t of Motor Vehicles, 79 Wn.2d 500, 504, 487 P.2d 1050 (1971) (quoting Couch v. Rice, 23 Ohio App. 2d 160, 161, 261 N.E.2d 187 (1970)). This court has further held that the warning that “ ‘refusal to take the test may be used in a criminal trial’ ” did not deprive drivers who refused the test of the opportunity to make a knowing and intelligent decision whether to take the test, since the warning was sufficient to alert drivers that their refusal could be used at any phase of a criminal trial. State v. Bostrom, 127 Wn.2d 580, 586, 902 P.2d 157 (1995) (quoting former RCW 46.20.308(2) (1995)).

¶33 We review the implied consent warning not on a constitutional basis, but rather as a right granted as a matter of grace through the statutory process. Morales, 173 Wn.2d at 567 (citing Gonzales, 112 Wn.2d at 896; Whitman County, 105 Wn.2d at 281). We have never held that refusal to consent to a BAC test cannot be introduced as evidence of guilt, especially when the defendant agreed to this result in exchange for the privilege to drive. See, e.g., Long, 113 Wn.2d at 272 (“Since the right to refuse to submit to a breath test is a matter of legislative grace, the Legislature may condition that right by providing that a refusal may be used as evidence in a criminal proceeding.”); see also State v. Zwicker, 105 Wn.2d 228, 242, 713 P.2d 1101 (1986) (“Attaching penalties to the exercise of the statutory right of refusal is not inherently coercive where the Legislature could withdraw this privilege altogether.”).

¶34 Washington’s implied consent statute does not authorize a search; instead, it authorizes a choice between two options, to consent or refuse, with penalties attached for refusal. See Long, 113 Wn.2d at 272; Zwicker, 105 Wn.2d at 242; accord State v. Padley, 2014 WI App 65, 354 Wis. 2d 545, 564-76, 849 N.W.2d 867; see also McNeely, 569 U.S. at 161 (noting that “all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested” or incur penalties for refusal); Birchfield, 136 S. Ct. at 2185 (“Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.”). “The choice to submit to or refuse the test is not a constitutional right, but rather a matter of legislative grace.” Bostrom, 127 Wn.2d at 590 (citing Zwicker, 105 Wn.2d at 242).

¶35 Washington’s implied consent statute, RCW 46.20-.308, says that drivers consent to a breath test by driving in Washington State:

(1) Any person who operates a motor vehicle within this state is deemed to have given consent . . .to a test or tests of his or her breath for the purpose of determining the alcohol concentration ... if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503.

(Emphasis added.) But the statute does not allow an officer to conduct a breath test unless the driver is arrested and actually consents to the test after being read statutory warnings.

(4) If, following his or her arrest and receipt of warnings under subsection (2) of this section, the person arrested refuses upon the request of a law enforcement officer to submit to a test or tests of his or her breath, no test shall be given except as authorized by a search warrant.

Id. (emphasis added).

¶36 Functionally, the “implied consent” in the statute does not mean that police may require drivers to consent to the breath test simply because they drove. Rather, it means that in situations that the legislature has specified,⁴ if a driver chooses not to consent, the driver agrees that he or she will incur the consequences of that decision:

(2) . . . The officer shall warn the driver, in substantially the following language, that:

(a) If the driver refuses to take the test, the driver’s license, permit, or privilege to drive will be revoked or denied for at least one year; and

(b) If the driver refuses to take the test, the driver’s refusal to take the test may be used in a criminal trial.

Id.

¶37 While the defendants have a statutory right to refuse consent, permitting the State to use their refusal as evidence of guilt, under the implied consent statute, does not violate that right. Indeed, the Court of Appeals in Gauthier noted that courts exclude refusal evidence, in part, because its use would be unfair to suggest that refusal is an indication of guilt. 174 Wn. App. at 263-66. The court observed that although a person may refuse a warrantless search because he or she has incriminating evidence to hide, a person may also refuse because of distrust of law enforcement or for many other reasons. Id. at 265. Because refusal is ambiguous, courts have found it unfair to allow a jury to infer guilt from refusal, particularly when such refusal involves the exercise of a constitutional right. See id. at 264-65.

¶38 In other words, courts have created a prophylactic rule, shielding defendants from the adverse use of refusal evidence, grounded in considerations of fairness. See id.; see also Long, 113 Wn.2d at 272-73; ER 403. But for a breath test to determine alcohol consumption under Washington’s implied consent statute, for which a defendant has no constitutional right to refuse like in Gauthier, we do not have the same concerns regarding fairness.

¶39 In exchange for the privilege of driving on Washington’s roadways, drivers agree and have notice that their refusal to consent to a statutorily requested breath test may be used as evidence of guilt at a criminal trial. See Long, 113 Wn.2d at 272-73; RCW 46.20.308. They impliedly consent to this result by driving on the roadway and by driving under circumstances that amount to probable cause to believe they are intoxicated, and ultimately, they actually agree to this result when they refuse the breath test. See RCW 46.20.308(1)-(2)(b). Under our Rules of Evidence, parties may waive the opportunity to object to the admissibility of evidence. See ER 103. In essence, drivers waive the right to shield their refusal from use as evidence when they take advantage of the privilege to drive in exchange for their waiver.⁵ More importantly, the statute exists to protect the public from drunk drivers and reasonably relates to the public safety of the very roadways that the defendant was privileged to use. See State v. Moore, 79 Wn.2d 51, 57-58, 483 P.2d 630 (1971) (upholding implied consent statute as a reasonable exercise of the State’s police power, “having as its purpose the reduction of traffic carnage occasioned by the inebriated driver”). Obtaining a breath test—to verify intoxication and thereby help ensure that an intoxicated driver does not remain on the roadway—relates to the safety of all motorists. See id. In this context, allowing a defendant’s refusal to be admissible as evidence of guilt furthers the government’s legitimate public safety goals. See id.

¶40 The United States Supreme Court also implicitly approved of this result under the Fourth Amendment, suggesting that implied consent statutes, with their attendant penalties for refusal, remain viable.⁶ McNeely, 569 U.S. at 161.

[A]ll 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested .... Such laws impose significant consequences when a motorist withdraws consent; typically the motorist’s driver’s license is immediately suspended or revoked, and most States allow the motorist’s refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution.

Id.⁷ A majority of the Court recently reiterated this approval of implied consent statutes in Birchfield, 136 S. Ct. at 2185. The Birchfield Court further stated, “Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evi-dentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.” Id. (citations omitted).

¶41 Because we determine that, even after McNeely and particularly after Birchfield, a driver’s refusal is admissible as evidence of guilt under the implied consent statute, we reverse the district courts’ suppression of the evidence in both cases.

¶42 On remand in Adams, Adams’s refusal is admissible in her criminal trial.

¶43 In Baird’s case, he argues that his consent was coerced and therefore invalid because the statutory warning stating his refusal could be used against him was a threat the State had no authority to carry out.⁸ Because we conclude the State can use a driver’s refusal in a criminal trial, we reject this argument. On remand, Baird’s breath test results are admissible.

CONCLUSION

¶44 We reverse the district courts’ suppression rulings in both cases. Under the implied consent statute, a driver’s refusal to consent to a breath test is admissible as evidence of guilt in a criminal trial. Such refusal is not a comment on the exercise of a person’s constitutional rights because once an exception to the warrant requirement is found to apply, no constitutional right to refuse exists. Any right to refuse exists only as a statutory right by virtue of the implied consent statute. We remand for further proceedings consistent with this opinion.

Johnson, Owens, and Wiggins, JJ., concur.

1 The implied consent statute has been amended since the defendants in this case were arrested in 2012 and 2013. Laws of 2013, 2d Spec. Sess., ch. 35, § 36; Laws of 2013, ch. 3, § 31; Laws of 2012, ch. 80, § 12; Laws of 2015, 2d Spec. Sess., ch. 3, § 5. However, the parties cite to the Laws of 2013, 2d Spec. Sess., ch. 35, § 36 version of the statute rather than the version in effect at the time of arrest, apparently because they conclude the amendments had no substantive effect on their arguments. We also discern no substantive difference. To avoid confusion and citations to multiple versions of the implied consent statute, our citations to RCW 46.20.308 refer to the version in effect from January 1, 2014 to September 25, 2015, Laws of 2013, 2d Spec. Sess., ch. 35, § 36.

2 The Supreme Court recently reaffirmed this holding in Birchfield v. North Dakota, _ U.S. _, 136 S. Ct. 2160, 2174, 195 L. Ed. 2d 560 (2016).

3 The State conflates two requirements for conducting a search that intrudes into the body. When a search intrudes into the body, the search must meet three showings in addition to meeting the warrant requirement or meeting an exception. Garcia-Salgado, 170 Wn.2d at 185-86. First, there must be a “ ‘clear indication’ ” that the evidence will be found; second, the search method must be reasonable; and third, the search must be performed in a reasonable manner. Id. at 185 (quoting Schmerber, 384 U.S. at 770). The State suggests that a warrantless breath test in a DUI case is constitutional if it meets these three showings. Br. of Pet’r at 15 (citing State v. Curran, 116 Wn.2d 174, 184-85, 804 P.2d 558 (1991)). We disagree. The State must make these showings and satisfy the warrant requirement or establish that an exception applied. Garcia-Salgado, 170 Wn.2d at 185-86.

4 The provisions of the implied consent statute apply when a driver is

arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503.

RCW 46.20.308(1).

5 The Ninth Circuit has held that the Fourth Amendment gives a suspect the right to refuse consent to a warrantless search and that, generally, a person’s refusal cannot be used as evidence of guilt. United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978). Flowever, the Ninth Circuit also recognized that a defendant can waive his or her objection to the use of refusal evidence. Id. at 1352.

6 Justice Kennedy did not join Part III, where the lead opinion approved of implied consent statutes. McNeely, 569 U.S. at 165 (Kennedy, J., concurring in part). He did, however, explain his criticism of this section. Id. at 165-66 (Kennedy, J., concurring in part). In that criticism, he did not comment on the lead opinion’s discussion of implied consent statutes. See id. (Kennedy, J., concurring in part).

7 “We recognize, of course, that the choice to submit or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to make. But the criminal process often requires suspects and defendants to make difficult choices.’’ South Dakota v. Neville, 459 U.S. 553, 564, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983).

8 Baird also argues that the implied consent statute violates the doctrine of unconstitutional conditions, see, e.g., United States v. Scott, 450 F.3d 863 (9th Cir. 2006), premised on the assumption that the statute acts as valid consent for a search because it requires a broad waiver of Fourth Amendment protection in exchange for the “ ‘privilege’ ’’ to drive. Br. of Resp’t Baird at 27-28. We reject this argument because we have already rejected its premise: the “implied consent’’ in the statute does not act as valid consent for a search. See RCW 46.20.308(4). Rather, absent a warrant or an exception, an officer must obtain actual consent for a breath test. Further, because such an exception to the warrant requirement exists in this case, the breath test falls outside of Fourth Amendment protection. Thus, the implied consent statute cannot be a waiver of that nonexistent Fourth Amendment protection.