Blomstrom v. Tripp, 402 P.3d 831 (Wash. 2017), involved a challenge of pretrial release conditions which included random urinalysis testing. Three defendants charged with driving under the influence were ordered by courts to submit to random urinalysis testing as a pretrial release condition, and each petitioned for a writ of review with the Spokane County Superior Court. Each petition was denied. The Washington Supreme Court reversed these denials and declared the pretrial urinalysis testing requirements to violate the right to privacy under the Washington State Constitution, which states, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const. art. 1, § 7.

The court focused on the invasive nature of urinalysis testing, which it found to be “an acute privacy invasion by the State.” Blomstrom, 402 P.3d at 844. In establishing that pretrial urinalysis testing was an illegitimate invasion of privacy, the court concluded that no legitimate “authority of law” was to be found in the present case. Id. The state argued that those “charged but presumed innocent . . . have a reduced privacy interest,” id. at 846, though the court clarified its position to be narrower—namely, that “an inmate’s expectation of privacy is necessarily lowered while in custody,” id. (citation omitted). Defendants in Bolstrom were released on their own recognizances.

To support this position, the court relied on Sandra G. Mayson’s forthcoming article in Volume 127 for the proposition that “the privacy interests of detainees and releasees appear to differ to the extent required by the adjudicative process.” Id. at 846-47. The court quotes Mayson: “[I]f you are arrested, you expect that officers will disarm you, booking personnel will extract identifying information, and jail personnel will inventory your belongings—because these intrusions are necessary for the system to work. But it is that necessity that justifies the intrusions, not your subjective expectations.” Id. at 847 (quoting Sandra G. Mayson, Bail Reform and Restraint for Dangerousness: Are Defendants a Special Case?, 127 Yale L.J. (forthcoming Jan. 2018)).

Mayson argues in her forthcoming article that there is no clear constitutional, moral, or practical basis on which courts can treat defendants accused of crimes differently than non-defendants who are equally likely to commit future crimes.