With evidence tossed out, Bellevue man gets 2 years in fatal Highway 529 crash

Published 4:10 pm Tuesday, June 16, 2015

EVERETT — A Bellevue man was sentenced Tuesday to a little over two years in prison for a fatal crash that killed his friend’s son.

A judge’s ruling in April tossed out blood tests showing that Shawn Wilburn was under the influence of alcohol and drugs at the time of the June 2013 crash. Kyle Finch, 26, was ejected when Wilburn’s vehicle rolled over on Highway 529. Wilburn, 55, faced a much lengthier sentence — up to a decade — if the test results had been allowed.

Veteran defense attorney Mark Mestel moved to have the blood evidence suppressed. He argued that the test results weren’t admissable because Everett police failed to obtain a search warrant before Wilburn’s blood was taken.

An Everett police detective testified that the blood draw was done without a warrant because he believed it would take too long to get a judge’s permission. He had consulted with Snohomish County deputy prosecutor Tobin Darrow before ordering the blood draw.

Darrow was concerned that the passage of time would destroy evidence that Wilburn was under the influence.

Snohomish County Superior Court Judge Anita Farris, however, cited a 2013 U.S. Supreme Court decision limiting when police are able to take a defendant’s blood without a warrant.

The higher court’s ruling conflicted with state statute that generally allowed cops to have blood drawn without warrants to protect evidence in vehicular homicides and vehicular assaults cases.

In her ruling, Farris noted that police could have taken steps to obtain a warrant in the 2½ hours between when the crash was reported and when Wilburn’s blood was drawn at the hospital. Farris concluded that a warrant could have been authorized by a judge over the phone within an hour or less.

“The state failed to carry its burden to prove an emergency really made it necessary to obtain evidence without a warrant,” Farris wrote.

Since the 2013 U.S. Supreme Court decision more officers are getting court authorization before requesting blood draws for people suspected of being under the influence of drugs and alcohol, Darrow said.

“There is conflicting opinions from the bench so instead of guessing, law enforcement is getting warrants in most cases,” Darrow said.

In this case, without the test results, Darrow was forced to amend the charge against Wilburn.

The defendant pleaded guilty to vehicular homicide, admitting that he was reckless, not intoxicated or high, when he lost control of his vehicle. That spared him years in prison.

Court records say that Wilburn had shared heroin with Finch the day of the crash. Both showed signs of overdosing. Wilburn said he was driving Finch to the hospital when he lost control and crashed. Finch died at the scene when he was thrown from the rolling Ford Explorer.

Paramedics on scene gave Wilburn Narcan, a drug to counter the effects of an opiate overdose.

Wilburn is close friends with Finch’s father, who recommended that the defendant receive community service and drug treatment instead of a prison sentence.

Meanwhile Finch’s uncle called the defendant’s sentence a travesty.

Diana Hefley: 425-339-3463, hefley@heraldnet.com. Twitter: @dianahefley