No “Direct Nexus” Required: Washington Supreme Court Upholds BA/UA Monitoring of Valid Sobriety and Drug-Use Conditions Under Article I, § 7

Introduction

In State v. Nelson, No. 102942-0 (Wash. Mar. 27, 2025), the Washington Supreme Court addressed whether community-custody conditions authorizing breath analysis (BA) and urinalysis (UA) to monitor compliance with alcohol and nonprescribed drug prohibitions violate article I, section 7 of the Washington Constitution when alcohol and drugs were not related to the underlying offenses. The petitioner, Jasper Nelson, brought a preenforcement constitutional challenge to those monitoring conditions even though they had never been invoked against him and played no role in the revocation of his Special Sex Offender Sentencing Alternative (SSOSA).

The Court concluded the challenge was not ripe—because the testing conditions had not been enforced and Nelson remained in total confinement—but nevertheless reached the merits to resolve conflicting approaches among the divisions of the Court of Appeals. In doing so, the Court clarified State v. Olsen, 189 Wn.2d 118 (2017), and held that BA/UA testing used to monitor compliance with statutorily authorized sobriety and drug-use conditions is constitutionally permissible under article I, section 7 even when those prohibitions are not crime related. The Court emphasized narrow tailoring: the tests must be used to check compliance with the valid conditions and not as an evidentiary fishing expedition.

This opinion resolves a long-simmering intra-division split, confirms the Department of Corrections’ (DOC) authority to use testing as a compliance tool, and refines Washington’s ripeness doctrine as applied to preenforcement challenges to community-custody conditions.

Summary of the Opinion

Ripeness: Nelson’s preenforcement challenge to BA/UA monitoring conditions was not ripe because (a) the conditions had never been enforced, (b) they did not immediately restrict his conduct upon release, and (c) he is still in total confinement; further factual development is needed to assess any “unreasonable” enforcement.
Merits reached to resolve conflict: Despite lack of ripeness, the Court reached the merits to reconcile divergent Court of Appeals opinions on whether a “nexus” to the offenses is required for BA/UA monitoring.
Constitutional holding: Article I, section 7 is implicated by BA/UA testing, but the monitoring conditions at issue satisfy the “authority of law” prong because:
- The State has compelling interests in effective supervision (including rehabilitation and public protection); and
- The conditions are narrowly tailored when used to monitor compliance with validly imposed alcohol and drug-use prohibitions.
The Court rejected the view that a “direct nexus” to the underlying offenses is required or that reasonable suspicion is necessary before administering BA/UA for compliance monitoring.
Scope and caveat: The holding is limited to the conditions “as written”—which authorize testing to ensure compliance with the sobriety/drug-use conditions. An as-applied challenge remains available if enforcement later becomes “unreasonable” or degenerates into a fishing expedition.

Factual and Procedural Background

At age 19, Nelson pleaded guilty to three counts of third degree rape of a child involving a 12-year-old and additional counts including communication with a minor for immoral purposes and second degree child molestation involving an 11-year-old. The sentencing court imposed a SSOSA, suspended his 87-month sentence, and placed him on community custody with sex offender treatment and review hearings.

Appendix H to the judgment and sentence required Nelson to abstain from controlled substances without prescription, refrain from alcohol and unauthorized cannabis, and “submit to breathalyzer testing or any other testing to ensure no alcohol consumption” and “submit to urinalysis testing or other testing to ensure drug-free status.” Nelson did not object at sentencing and signed DOC paperwork acknowledging these conditions.

Nelson later violated unrelated SSOSA terms (e.g., internet/device restrictions, sexual content, undisclosed sexual relationships). He stipulated to six violations; his treatment provider reported a lack of candor; the court revoked the SSOSA. On appeal, Nelson challenged revocation, sentence length, and several community-custody conditions, including the BA/UA monitoring conditions. Division Three upheld the revocation, corrected some sentencing issues, and—relying on Olsen—upheld BA/UA monitoring as a lawful tool to enforce valid alcohol/drug-use prohibitions.

The Supreme Court granted review solely on the community-custody conditions question.

Analysis

Precedents Cited and Their Influence

State v. Olsen, 189 Wn.2d 118 (2017): The anchor case. Olsen upheld random UA testing of probationers for compliance with valid no-drugs/no-alcohol conditions under article I, § 7. Key points:
- Probationers (and, by analogy, those on community custody) have a reduced expectation of privacy.
- The State’s compelling interests include rehabilitation, public safety, and effective supervision.
- Random UAs can be narrowly tailored when limited to checking compliance and not used for general evidence gathering.
Nelson clarifies that Olsen’s reasoning is not confined to DUI or crime-related conditions; the “direct nexus” language is supportive but not dispositive.
In re Juveniles A, B, C, D, E, 121 Wn.2d 80 (1993): Upheld mandatory HIV testing of sexual offenders. The Court emphasized reduced privacy expectations of convicted persons and compelling public health and supervision interests, with narrow tailoring through targeted testing and limited disclosure. Nelson draws on this to underscore that narrowly tailored testing may be constitutional without a crime-specific nexus.
State v. Cates, 183 Wn.2d 531 (2015), and State v. Sanchez Valencia, 169 Wn.2d 782 (2010): Ripeness framework. A preenforcement challenge is ripe when the issue is primarily legal, requires no further factual development, the action is final, and there is sufficient hardship if review is withheld. Nelson applies this to find his challenge unripe (no enforcement; no immediate restriction; facts undeveloped).
State v. Bahl, 164 Wn.2d 739 (2008): Exception to ripeness under vagueness challenges when purely legal, raised at sentencing, and immediate hardship exists. Nelson distinguishes Bahl: BA/UA monitoring conditions were clear on their face, not vague, and no hardship existed at this stage.
State v. Cornwell, 190 Wn.2d 296 (2018): Warrantless search of a probationer’s car without a nexus to the violation was unconstitutional. The Court distinguishes open-ended property searches from narrow BA/UA compliance testing, reaffirming that Cornwell does not undermine Olsen.
State v. Riles, 135 Wn.2d 326 (1998) (abrogated on other grounds): Endorsed supervision tools (e.g., polygraphs) to monitor compliance with valid conditions. Cited in Olsen and echoed in Nelson.
State v. Jones, 118 Wn. App. 199 (2003): Supports courts’ authority to impose alcohol and drug-use prohibitions under RCW 9.94A.703 even when not crime related. Nelson relies on this statutory backdrop.
State v. Petterson, 190 Wn.2d 92 (2018): SSOSA courts have continuing authority to modify discretionary conditions at annual review and termination hearings (RCW 9.94A.670(7)-(9)). Nelson invokes this to show the availability of relief if hardship actually arises.
Court of Appeals decisions reflecting the split the Supreme Court resolves:
- Division Two and Three: State v. Gililung (2024) (Div. II) and In re PRP of Alaniz (2024) (Div. III) read Olsen to permit BA/UA monitoring to enforce valid sobriety/drug-use conditions regardless of crime-relatedness.
- Division One: Stark (2018), Greer (2019), Monroy (2020), and Ibarra (2024) read Olsen to require a “reasonable relationship” or offense-specific nexus and to limit suspicionless testing where the condition is not crime related. Martinez Platero (2021) accepted a concession to strike the monitoring condition as not crime related.
Nelson rejects Division One’s “direct nexus” gloss on Olsen.

Legal Reasoning

A. Ripeness

The Court applied the established ripeness framework and held the challenge unripe:

The monitoring conditions were final but had never been enforced; Nelson was still in total confinement.
Because the conditions do not, on their face, require immediate action or restrict Nelson’s conduct upon release, further factual development is necessary to determine whether any future enforcement would be “unreasonable.”
This case is unlike Bahl’s vagueness context; the BA/UA conditions are clear and impose no immediate hardship.
SSOSA review mechanisms exist to seek modification if hardship arises.

Nonetheless, the Court exercised its discretion to reach the merits to resolve the split among the divisions concerning Olsen’s scope.

B. Article I, § 7: Private Affairs and Authority of Law

Article I, section 7 asks two questions: (1) whether private affairs are disturbed; and (2) if so, whether the disturbance is justified by “authority of law.”

Private affairs: BA/UA testing implicates bodily integrity and thus disturbs private affairs—even for supervisees—although those on community custody have reduced privacy expectations.
Authority of law: Under Washington’s more protective model, suspicionless intrusions must serve a compelling state interest through narrowly tailored means.
- Compelling interests: Effective supervision of convicted persons (rehabilitation, compliance assurance), public safety, and probation/community custody management.
- Narrow tailoring: BA/UA testing is permissible if used to monitor compliance with validly imposed no-alcohol/no-nonprescribed-drugs conditions and not as a pretext to gather evidence of unrelated criminality. Randomness can be a narrow tailoring feature because it prevents evasion and may be less intrusive than continual behavioral surveillance to develop reasonable suspicion.

Crucially, the Court rejected the argument that a “direct nexus” to the underlying offense is necessary. The “nexus” discussions in Olsen and Juveniles were context-specific, supportive points—not constitutional prerequisites. The State’s compelling interests in supervision and public safety do not depend on whether alcohol or drugs caused the underlying crime; they arise from the lawful imposition of sobriety/drug-use conditions themselves.

The Court also explained why a reasonable-suspicion requirement is not constitutionally mandated here:

Random monitoring can be more effective and less intrusive overall than constant observation to build suspicion, particularly where impairment is not readily observable.
Cornwell is inapposite: open-ended property searches without a violation nexus differ from narrow toxicological testing limited to compliance monitoring.

The Court grounded statutory authority in RCW 9.94A.703(2)(c) and (3)(e) (authorizing no-drugs/no-alcohol conditions without requiring crime-relatedness) and in DOC’s authority to require “affirmative acts necessary to monitor compliance with the order of a court” (RCW 9.94A.030(10)). The “authority of law” prong was satisfied by the original judgment and sentence imposing those valid prohibitions, coupled with the narrow monitoring function of BA/UA testing.

Finally, the Court kept the door open: if the State later enforces the testing in an “unreasonable manner” or as a fishing expedition, an as-applied constitutional challenge will be available.

Impact

Resolution of intra-division split: The Supreme Court’s clarification harmonizes the law statewide. Division One’s “nexus-required” approach is no longer viable; courts and practitioners should follow Nelson’s reading of Olsen.
Drafting and administration of conditions:
- Sentencing courts may impose BA/UA monitoring to enforce valid no-alcohol/no-nonprescribed-drugs conditions even when unrelated to the offense.
- Conditions should expressly tether testing to compliance monitoring and avoid general investigative language.
- DOC should maintain protocols limiting use and disclosure of results to compliance purposes and avoid leveraging testing as a conduit for broader searches.
Litigation posture and timing: Preenforcement challenges will often be unripe unless the condition is facially vague, immediately burdensome, or already enforced. Defendants should preserve objections at sentencing or during SSOSA annual reviews and document enforcement conduct to support as-applied challenges.
Reasonable suspicion not required: Courts and DOC can use random monitoring where appropriate, provided the scope is limited to alcohol and nonprescribed drugs and the testing is not used to discover unrelated crimes.
Boundaries remain: The opinion does not bless open-ended search conditions or broader intrusions untethered to compliance with valid prohibitions. Cornwell still constrains property and digital searches lacking a nexus.
Future questions: The phrase “or other testing” in many judgments may spur litigation about more intrusive modalities (e.g., blood draws, hair testing). Nelson suggests the touchstone will be narrow tailoring and limited informational yield tied to compliance (and not general evidence-gathering).

Complex Concepts Simplified

Article I, section 7 (“private affairs”): Washington’s constitution protects personal privacy more robustly than the federal Fourth Amendment. When the State disturbs “private affairs,” it must show “authority of law,” which often means a compelling interest served by narrowly tailored means.
Community custody vs. probation: Different labels, similar function: supervised release after conviction. Supervisees have reduced—but not extinguished—privacy rights.
SSOSA: A sentencing alternative for certain sex offenses that suspends a prison term conditioned on treatment and strict community-custody requirements. Courts review and can modify conditions annually.
“Crime-related” conditions: Some discretionary conditions must relate to the offense conduct. But the statute specifically allows no-alcohol and no-nonprescribed-drugs conditions even when not crime related (RCW 9.94A.703(2)(c), (3)(e)).
Preenforcement “ripeness”: Courts generally wait for conditions to be enforced before deciding constitutional challenges unless the issue is purely legal (e.g., vagueness) and imposes immediate hardship.
Narrow tailoring in this context: Testing must be used to check compliance with the valid sobriety/drug-use conditions and not to search for unrelated criminal evidence. Randomness can be a narrow and effective tool because it minimizes evasion and may reduce the need for intrusive surveillance to build suspicion.

Conclusion

State v. Nelson delivers two important clarifications. First, preenforcement attacks on supervision conditions are often unripe when the State has not attempted enforcement and the condition does not immediately restrict conduct, though the Court may reach the merits to resolve entrenched appellate conflicts. Second—and most significantly for day-to-day supervision—the Court holds that BA/UA testing used to monitor compliance with statutorily authorized no-alcohol and no-nonprescribed-drug conditions is constitutionally permissible under article I, section 7 even when those prohibitions are not crime related. The Court rejects a categorical “direct nexus” requirement and confirms that random testing can be a narrowly tailored compliance tool so long as it is not used as a fishing expedition.

Going forward, sentencing courts and DOC may rely on BA/UA monitoring to enforce valid sobriety/drug-use conditions across offense types, provided testing remains confined to compliance purposes. Defendants remain free to raise as-applied challenges if enforcement strays into unreasonableness. Nelson thus harmonizes Washington law with Olsen, regularizes supervision practices statewide, and preserves robust—yet realistic—privacy protections for persons under community custody.