Late DUI Charge and a Warrantless Blood Draw in Washington

Attorney Answer

You cannot get a pending charge "hidden" — but you may be able to get the blood evidence thrown out, and if the State filed too late the whole case can be dismissed as time-barred. Start by finding out when it was actually filed.

The filing deadline. Under RCW 9A.04.080(1)(k), no gross misdemeanor may be prosecuted more than two years after it was committed. Washington DUI under RCW 46.61.502 is a gross misdemeanor, so the State had two years from the date of the incident. The clock runs to the date the charge was filed, not to the date you found out about it. An eighteen-month gap between the incident and your learning of the case does not by itself mean the case is stale — the file stamp on the charging document is what decides it. Get that date before you assume anything either way.

The blood draw. The parental-consent argument is not the one to lead with. RCW 46.20.308, Washington's implied consent statute, deems a driver to have consented to a test of the breath, and sets out the warnings an officer must give. Blood is treated differently: subsection (4) allows an officer to obtain a blood sample only under a search warrant, a valid waiver of the warrant requirement, exigent circumstances, or another authority of law. The statute sets a 0.02 threshold for drivers under 21 rather than 0.08, but it contains no parental-consent provision and no separate procedure for minors. So "they never asked my parents" is not the defect. "They took blood without a warrant" may be.

What the courts have held. In Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160 (2016), the Supreme Court held that the Fourth Amendment permits a warrantless breath test incident to a lawful drunk-driving arrest but does not permit a warrantless blood test on that basis, because a blood draw is significantly more intrusive. Absent a warrant, free and voluntary consent, or another recognized exception, a warrantless blood draw in a DUI stop is unconstitutional. Birchfield did leave states free to impose civil and evidentiary consequences for refusing a test — it did not make refusal cost-free.

Washington's Court of Appeals applied the same principle in City of Seattle v. Pearson, 192 Wn. App. 802, 369 P.3d 194 (2016). The natural dissipation of an intoxicant from the bloodstream is a relevant consideration in the exigency analysis but is not a per se exigent circumstance excusing a warrant for a nonconsensual blood draw. Where the blood was drawn about two hours after the collision and there was testimony that a warrant could have been obtained by email in roughly an hour to an hour and a half, the City had not proved a warrant could not be obtained in a reasonable time; admitting the blood result was prejudicial error and the conviction was reversed.

What you can do 1. Call the court in the county where the incident happened and ask for the case number, the date the charge was filed, the next hearing date, and whether a bench warrant has been issued for missing a date you never knew about. 2. Find out about the warrant before it finds you. If a bench warrant is outstanding, a lawyer can usually arrange for you to appear and have it quashed rather than being arrested on a traffic stop. 3. Get a criminal defense lawyer and have them pull discovery — specifically, whether there was a search warrant for the blood, the warrant affidavit, any signed consent form, and the officer's account of why blood was taken instead of breath. 4. Have counsel evaluate two motions: a motion to suppress the blood result under the warrant rule, and a motion to dismiss under RCW 9A.04.080(1)(k) if the filing date falls outside two years from the incident. 5. Request your driving record from the Department of Licensing to see whether any license action was taken while you were unaware of the case. 6. On the employment problem — nothing can be removed or sealed while the case is open. What record relief becomes available depends entirely on how the case ends, so the outcome is what you should be working on right now.

⏱ Time limits apply. If the Department of Licensing ever issued a notice of suspension in this matter, the window to demand an administrative hearing is measured in days from the date of that notice, not from the criminal case — and it may well have run while you had no idea the case existed. Ask your lawyer immediately whether a late or reopened hearing is possible. Understand that these are two separate tracks: the license case and the criminal case use different standards of proof and can come out opposite ways on the same stop. Winning one does not dispose of the other. Separately, the State's own deadline to have filed the charge is set by RCW 9A.04.080(1)(k), and whether it was met turns on your specific dates.