A woman who drove drunk and killed South Whidbey resident Timothy Keil in 2015 is once again appealing her conviction.
An attorney representing Michelle D. Nichols filed a personal restraint petition in the state Court of Appeals, arguing that her constitutional rights were violated because the attorney in her prior appeal provided ineffective assistance by failing to make an argument related to the quality of a blood draw.
In addition, Nichols repeats her earlier argument that exigent circumstances did not allow a blood draw without a warrant.
Island County Chief Criminal Prosecutor Eric Ohme said he expects the Court of Appeals to dismiss the personal restraint petition after he responds.
The legal case has taken a circuitous route due to questions about the admissibility of a warrantless blood draw.
On the night of Feb. 14, 2015, Nichols was driving on State Highway 525 when her car ricocheted off a guardrail and veered head-on into an oncoming car driven by Keil, who was killed. Nichols was seriously injured; her femur was fractured and the bone was sticking four inches out of her skin, according to court documents. She was airlifted to Harborview Medical Center in Seattle.
A trooper with the Washington State Patrol traveled to Harborview, but arrived to find that Nichols was unconscious, intubated and had been given blood transfusions.
Since Nichols was about to go into surgery, a decision was made to draw her blood without a warrant before the chance was lost.
Tests later showed that three hours and 51 minutes after the collision, her blood-alcohol level was 0.11 percent, more than the 0.08 percent state limit.
Ohme and defense attorney David Carman agreed on a plea bargain under which the basic facts of the case were agreed upon and a judge weighed the evidence against Nichols in a bench trial.
Both sides understood that the case pivoted on the admissibility of the warrantless blood test, and that the outcome would be in the hands of the state Court of Appeals.
Island County Superior Court Judge Vickie Churchill found Nichols guilty of the DUI “prong” of the vehicular homicide statute and sentenced her to 126 months in prison.
The sentence was stayed until the Appeals Court concluded that there was probable cause and exigent circumstances to support the blood draw.
The sentence was finally imposed in August 2018.
In the new appeal, Nichols argues that her constitutional rights were violated by the ineffective assistance of counsel in the first appeal.
The attorney, she contends, failed to argue that the prosecution failed to show that the blood sample — obtained after a transfusion — was free from adulteration.
“Indeed, facing similar sets of facts,” the petition states, “courts across the country have recognized that blood obtained from a potential defendant after a transfusion was, or would be, unusable.”
