holding thát an instruction on reckless driving was inappropriate as a. lesser included offense of vehicular homicide because the offense could be committed by the alternative means of driving with disregard for the safety of others
How later courts described this case
- holding thát an instruction on reckless driving was inappropriate as a. lesser included offense of vehicular homicide because the offense could be committed by the alternative means of driving with disregard for the safety of others
- holding amendment to RCW 9.94A.400(1)(a) applied at time of sentence, retroactively to defendant’s crimes
- holding amendment to RCW 9.94A.400(1)(a) applied at time of sentence, *741 retroactively to defendant’s crimes
- abrogated on other grounds by State v. Berlin, 133 Wash.2d 541, 548, 947 P.2d 700 (1997)
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by State v. Berlin, 133 Wash. 2d 541 (1997)
116 Wn.2d 174 , 804 P.2d 558 (1991), abrogated in part on other grounds by State v. Berlin, 133 Wn.2d 541 , 947 P.2d 700
The opinion
Utter, J.
(concurring)—I agree with the majority's resolution of the claims presented here. I write separately because I do not agree with the analysis of the state constitutional law claims. The majority fails to adequately discuss the claims raised under article 1, section 9 and equates article 1, section 7 with the fourth amendment to the United States Constitution.
*188 I
State v. Moore, 79 Wn.2d 51 , 483 P.2d 630 (1971) and State v. Franco, 96 Wn.2d 816, 829 , 639 P.2d 1320 (1982) settle Curran's claim that a compelled blood test violates article 1, section 9's limits on self-incrimination. Curran argues that the self-incrimination privilege should not be limited to items of a testimonial nature, relying principally on the language of article 1, section 9, which states that "No person shall be compelled in any criminal case to give evidence against himself". (Italics mine.) This language contrasts sharply with the Fifth Amendment, which only prohibits compelling a person "to be a witness against himself". (Italics mine.)
While Curran's arguments might be persuasive as an original matter, precedent compels their rejection. Justice Rosellini raised most of Curran's specific arguments under article 1, section 9 in his Moore dissent, but the majority rejected them. See Moore, 79 Wn.2d at 58-68 (Rosellini, J., dissenting). Moreover, Justice Rosellini's dissent in Moore discussed most of the factors later identified as crucial to state constitutional analysis in State v. Gunwall, 106 Wn.2d 54 , 720 P.2d 808 , 76 A.L.R.4th 517 (1986).
II
I agree that article 1, section 7 does not protect Curran from a blood search in the context of a homicide. We have held, however, that article 1, section 7 protects privacy rights more broadly than the Fifth Amendment. See, e.g., State v. Boland, 115 Wn.2d 571 , 800 P.2d 1112 (1990); State v. Gunwall, supra.
The United States Supreme Court employs a balancing test to determine whether the invasion of a defendant's body is unreasonable under the Fourth Amendment. See Winston v. Lee, 470 U.S. 753 , 84 L. Ed. 2d 662 , 105 S. Ct. 1611 (1985) (court-ordered surgery to remove bullet sought as evidence held unconstitutional). The Court balances "the individual's interests in privacy and security . . . against society's interests in conducting the procedure." Winston, *189 470 U.S. at 760 . Because the societal interest in preventing homicides is so great, article 1, section 7 allows a blood test when a person is killed, if authorized by legislation. Because of the special solicitude of article 1, section 7 for the privacy rights of individuals, I doubt very much whether such an invasion of the body would be permissible in less severe circumstances. See generally Comment, The Origin and Development of Washington's Independent Exclusionary Rule: Constitutional Right and Constitutionally Compelled Remedy, 61 Wash. L. Rev. 459 (1986); Boyd v. United States, 116 U.S. 616 , 29 L. Ed. 746 , 6 S. Ct. 524 (1886) (holding that production of a defendant's private papers violated the Fifth Amendment just prior to the adoption of the Washington State Constitution); State v. Gibbons, 118 Wash. 171 , 203 P. 390 (1922) (following Boyd); Const. art. 1, § 32 ("A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government"); Laws of 1965, 1st Ex. Sess., ch. 155, § 60 (expressing Legislature's former belief that nonconsensual blood tests for DWI suspects would be unconstitutional).
Smith, J., concurs with Utter, J.
Reconsideration denied May 16, 1991.