Bell v. Department of Motor Vehicles, 343--II

• Decision Date: 21 April 1972
• Docket Number: No. 343--II,343--II
• Citation: 496 P.2d 545,6 Wn.App. 736
• Parties: James F. BELL, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, State of Washington, Respondent.
• Court: Washington Court of Appeals

Page 736

6 Wn.App. 736

496 P.2d 545

James F. BELL, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, State of Washington, Respondent.

No. 343--II.

Court of Appeals of Washington, Division 2.

April 21, 1972.

Donald H. McGavick, Tacoma, for appellant.

Slade Gorton, Atty. Gen., John H. Keith, Asst. Atty. Gen., Olympia, for respondent.

PETRIE, Chief Judge.

Appellant, James F. Bell, filed this appeal from a superior court judgment sustaining an order of the Director of the Department of Motor Vehicles, which had suspended his driver's license for six months because of his refusal to submit to a chemical test of his breath as required by RCW 46.20.308 (Initiative 242).

The trial court's uncontroverted findings of fact establish that on December 15, 1968, Trooper Gary Silverthorn of the Washington State Patrol had reason to believe that Mr. Bell had been driving a motor vehicle on the public highways of this state while under the influence of intoxicating liquor, and he did thereupon place the appellant under arrest. Trooper Silverthorn advised Mr. Bell of (1) the consequences of refusing to take the chemical test of his breath and (2) his rights under RCW 46.20.308. The trooper did thereupon request appellant to submit to a chemical test of his breath. The trial court also found, and Mr. Bell assigns error to the court's finding, that he 'refused to submit to a chemical test of his breath.'

After having been transported to a local office of the Washington State Patrol, where a breathalyzer instrument was located, Mr. Bell indicated that he would not submit to the test. The trooper's explanation of Mr. Bell's 'refusal' was, 'He stated I was not a physician and therefore not privileged to give him the test.' The trooper also testified that appellant 'repeatedly stated this wasn't a refusal, but he wouldn't taken that kind of a test.' Mr. Bell's own explanation was:

The law was new, ¹ and everything, and it was fresh in my mind, and I thought I had to have an attorney present, or that if I took the test that it would be a legitimate test, and I thought I was guilty, you know, right then.

In his brief, the appellant asserts that he was confused by the trooper's explanation of his rights under the newly effective law, but that he did not refuse the test. The explanation necessarily included the statement, 'You further have the right to take Additional tests administered by any qualified person of your choosing and at your expense.' (Italics ours.) Connolly v. Dept. of Motor Vehicles, 79 Wash.2d 500, 487 P.2d 1050 (1971). The confusion, if any, in the appellant's mind would appear to stem from his conception that he could have a test administered by his physician in lieu of the test by the trooper. He did not have that right. There is ample evidence in the record to sustain the court's finding that Mr. Bell did, in fact, refuse to submit to the test.

Mr. Bell next contends that the trial court erred in failing to find that Trooper Silverthorn was not qualified to request the appellant to take the breathalyzer test. Using the requirement of RCW 46.61.506(3) ² that, in order for a chemical analysis of a person's breath to be considered valid, it must have been performed by an individual possessing a valid permit, appellant contends Trooper Silverthorn did not have a valid permit and therefore did not have the right to request him to submit to the breathalyzer test. Appellant argues that the revocation of his license cannot be sustained when the statutory requirement for performance of the test had not been met; to wit, the requirement that the breathalyzer operator possess a valid permit.

In meeting appellant's argument we do not deem it necessary to examine the trooper's qualifications as a breathalyzer operator. His qualifications are not relevant to an inquiry into whether appellant's license was lawfully revoked by the Department of Motor Vehicles. A license revocation proceeding under our implied consent provisions is civil in nature. It is entirely separate and distinct from proceedings on the criminal charge for which the driver was arrested. Fritts v. Dept. of Motor Vehicles, 6 Wash.App. 233, 492 P.2d 558 (1971). We stated in Fritts at 235, 492 P.2d at 559:

(RCW 46.20.308) . . . mandates the Department of Motor Vehicles to revoke or deny the privilege to drive upon the happening of a series of events: (1) arrest for any offense; (2) existence of reasonable grounds by the arresting officer to believe that the arrested person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor; (3) request by a law enforcement officer to the person arrested to submit to a chemical test of his breath; (4) informing the person arrested of his right to refuse the test and of his right to have other tests administered by any qualified person of his choosing, but warning that his refusal to submit to chemical testing will result in revocation or denial of his privilege to drive even though no test be given; (5) receipt by the department of the statutorily necessary sworn report of the law enforcement officer.

The scope of inquiry in a license revocation proceeding under RCW 46.20.308 is limited to the above issues. The requirement of RCW 46.61.506(3), that the breathalyzer test be performed by a person possessing a valid permit, was intended as one of the safeguards surrounding the admission into evidence of breathalyzer test results obtained through the implied consent provisions of Initiative 242. State v. Felix, 78 Wash.2d 771, 479 P.2d 87 (1971). A person's qualifications to administer the test bears on his competency to testify as to...