Only one person reported smelling alcohol coming from Michelle Nichols immediately following the 2015 car crash that left a Freeland man dead, and the police officer at the scene spent time speaking to a news reporter.
That means the state not only didn’t have sufficient probable cause to take Nichols’ blood without a warrant, but that police likely had time to secure one, attorney David Carman argued during a lengthy evidentiary hearing in Island County Superior Court Friday.
Carman represents Nichols, a South Whidbey woman charged with one count of vehicular homicide. She’s accused of driving drunk and causing the Valentine’s Day collision that claimed the life of 61-year-old Tim Keil.
The purpose of the hearing was to determine whether police had sufficient cause to take Nichols’ blood without a warrant. A judge’s ruling will dictate whether Nichols’ test results, which revealed a blood alcohol content of .11 — the state limit is .08 — are admissible in court.
A verdict will have to wait, however, as the hearing was continued until Wednesday, May 4.
Friday’s hearing revolved entirely around testimony by Trooper Nick Hagg, the responding and lead officer in accident. He took the stand shortly after court began and, aside from a short break, remained there for about two and a half hours. Most of the time was spent answering questions about what happened that night, from how the accident occurred to the step-by-step actions of police and their decision to have Nichols blood drawn while she was unconscious in a Seattle hospital under what’s known as “exigent circumstances.”
An exception to the general requirements under the Fourth Amendment, exigent circumstances allow officers to perform a search without a warrant in emergency situations where probable cause exists. It’s used to prevent personal injury, property damage, forestall the escape of a suspect, or in this case stop the destruction of evidence.
Nichols’ blood was taken at 12:35 a.m., about four hours after the accident occurred and after she’d received two bags of blood. Police did not attempt to secure a warrant largely because cell phone service at the crash site would have made it nearly “impossible” to conduct the required “telephonic” process with a judge, Hagg testified.
According to Hagg’s testimony, he was the only Whidbey state trooper on duty at the time and had to race from Oak Harbor to the scene just past Coles Road on Highway 525. Upon arrival, he spoke with sheriff’s deputies and several first responders. Though a registered nurse said Nichols admitted to drinking earlier, none initially reported smelling alcohol on Nichols breath, including Hagg.
“I could not locate an odor,” he said.
One fire district official later approached the officer and said he could smell intoxicants; he was positioned closest to Nichols’ face in the ambulance. Another reported seeing her drinking earlier at a bar in Freeland, but that she didn’t actually smell booze.
Carman argued that police simply lacked the probable cause needed to justify taking Nichols’ blood under exigent circumstances. Playing the officer’s dash-cam recording on a courtroom monitor, he also said that state police’s claims of being strapped for manpower don’t add up.
“You testified there was a lack of resources and that you were asked to do a lot at that scene, but it appears you had enough time to stand around and talk with a reporter for about 10 minutes,” said Carman, pausing the video on a scene where Hagg spoke to a reporter from The Record.
Island County Chief Criminal Prosecutor Eric Ohme objected on the basis of relevance, but Judge Vickie Churchill allowed it.
During Ohme’s questioning, however, Hagg testified that he believed police did have probable cause based on what he described as the “totality of the circumstances” — the road was dry, the section of highway was straight, Nichols admitted to having been drinking and the paramedic closest to her face said he could smell intoxicants.
The state patrol also learned that Nichols was charged with DUI in the past, which contributed to the decision. Carman pointed out that the 2002 charge was later reduced to a misdemeanor.
Hagg also said this wasn’t a decision he made on his own. He consulted with a superior and another Washington State Patrol investigation specialist over the course of several hours before the decision was made to withdraw Nichols’ blood. As a final check, they got an OK from the Island County Prosecutor’s Office by phoning the department’s after-hours hotline.
“She also agreed we should go exigent circumstances,” Hagg said.
The trooper said a warrant was considered, but because he was tied to the scene the telephonic process for securing one was nearly “impossible.” It involves calling the agency’s district office and setting up a recorded call to a judge, where an affidavit of probable cause is read out loud and a warrant approved or denied.
“Under good conditions, it [the process] would be over an hour,” Hagg said.
He added that his consultation with other officers resulted in repeated dropped calls due to poor cellular service.
After Hagg was dismissed, attorneys briefly debated whether a toxicologist should be allowed to testify. Carman said his expertise might be relevant at a trial, but not concerning whether or not police had probable cause to take blood without a warrant. Tamara Fundrella, a deputy prosecutor, argued the evidence under discussion was being destroyed “drip by drip” as Nichols was getting bags of blood for her injuries. An expert’s testimony is not immaterial, she said.
“It’s not only relevant, it’s necessary,” Fundrella said.
Churchill did not agree, and sustained Carman’s objection.