City of Kent v. Beigh

• Decision Date: 11 October 2001
• Docket Number: No. 70264-1.,70264-1.
• Citation: 32 P.3d 258,145 Wash.2d 33,145 Wn.2d 33
• Court: Washington Supreme Court
• Parties: CITY OF KENT, Petitioner, v. Richard BEIGH, Respondent.

32 P.3d 258

145 Wn.2d 33

145 Wash.2d 33

CITY OF KENT, Petitioner, v. Richard BEIGH, Respondent.

No. 70264-1.

Supreme Court of Washington, En Banc.

Argued May 15, 2001.

Decided October 11, 2001.

Christine Gregoire, Attorney General, Jerald R. Anderson, Asst., Carol Smith-Merkulov, Asst., Olympia, Amicus Curiae on Behalf of Department of Licensing.

Russell Hauge, Kitsap County Prosecutor, Randall Avery Sutton, Asst., Port Orchard, Amicus Curiae on Behalf of Washington Association of Prosecuting Attorneys.

Roger Alan Lubovich, Derek Michael Smith, Asst. Kent City Attorneys, Kent, for Petitioner.

David Richard Kirshenbaum, Kent, for Respondent.

SANDERS, J.

Division One of the Court of Appeals affirmed a ruling that suppressed the results of an alcohol blood test in a driving under the influence case. We affirm the result reached by Division One but for different reasons.

The first question is whether RCW 46.20.308(3) provides the sole authority for an officer to request a motorist to submit to a blood test. A plain reading of the implied consent statute reveals that it does not.

The second question is whether a motorist whose breath twice registers an "interference detected" during a breath alcohol test is deemed to have a physical injury, incapacity, or limitation which prevents him from providing a breath sample. We think not.

FACTS

Officer Dexheimer of the Kent City Police Department arrested Richard Beigh for driving under the influence. Mr. Beigh was advised of his Miranda warnings,¹ transported to the Kent jail, and given the implied consent warnings for a breath test. Beigh agreed to submit to the breath test.

Officer Dexheimer, who had six years of operational experience with the BAC machine and was trained as an instructor in the machine's use, administered the test. The officer attempted to get a BAC reading on Beigh's breath three times. The first attempt failed: the machine indicated there was an "interference detected." Officer Dexheimer testified this was the result of a built-in safety feature of the machine which is designed to protect people who have an alcohol-like substance on their breath from registering an erroneous BAC level. The officer indicated acetone on a diabetic's breath could cause the machine to display the "interference detected" message. During the course of the next 30 minutes Officer Dexheimer, on two separate occasions, attempted to get a reading on Beigh's breath. Each time he got the same result: the machine posted the message "interference detected."

Officer Dexheimer determined Beigh was physically unable to give a breath sample because of the interfering substance on his breath and consequently he advised Mr. Beigh of his implied consent warning for a blood test. Mr. Beigh agreed to the blood test and he was transported to Auburn Hospital where the sample was drawn by a qualified individual.

The trial court judge granted Beigh's motion to suppress the results of the blood test. The City of Kent challenged the ruling by writ of review to King County Superior Court. The superior court denied the writ, remanding to municipal court. The City of Kent then appealed to the Court of Appeals.

Division One, in a published opinion, affirmed. City of Kent v. Beigh, 102 Wash. App. 269, 6 P.3d 1211 (2000). The appellate court held Officer Dexheimer did not have the authority to ask Beigh to submit to a blood test since Mr. Beigh did not satisfy any of the exceptions enumerated in RCW 46.20.308(2). The court opined, "RCW 46.20.308(3) provides the only exceptions where a blood test should be used instead of a breath test." Id. at 274, 6 P.3d 1211. The City of Kent then sought review in this court, which we granted.

The city presents two issues on review: (1) whether RCW 46.20.308(3) provides the exclusive authority for administering a blood test rather than a breath test on an individual arrested for driving while intoxicated; and (2) whether a person who is incapable of providing a valid breath sample under WAC 448-13-055 is physically incapable of a breath sample under RCW 46.20.308(2).

Issue I

Every person who operates a motor vehicle within the State of Washington is deemed to have given his consent to submit to a test or tests of his breath or blood in the event he is arrested for suspicion of driving while intoxicated. RCW 46.20.308(1). RCW 46.20.308(3) states:

Except as provided in this section, the test administered shall be of the breath only. If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which there has been serious bodily injury to another person, a breath or blood test may be administered without the consent of the individual so arrested.

RCW 46.20.308(3). None of these exceptions applies here. Mr. Beigh was not unconscious when he was arrested. Nor was his arrest the result of a vehicular homicide, a vehicular assault, or an accident resulting in the serious bodily injury of another. Beigh, 102 Wash.App. at 273, 6 P.3d 1211. Notwithstanding, the Court of Appeals erred when it determined a blood test may be administered only under the circumstances enumerated in RCW 46.20.308(3).

"If a statute is plain and unambiguous, its meaning must be primarily derived from the language itself." Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 807, 16 P.3d 583 (2001). The plain language of the statute reads, "Except as provided in this section, the test administered shall be of the breath only." RCW 46.20.308(3) (emphasis added). It was error for Division One to conclude RCW 46.20.308(3) is the exclusive source of exceptions to the breath test rule. RCW 46.20.308(3) is not a section at all; rather it is a subsection of RCW 46.20.308.

"The number of each section of [the RCW] is made up of three parts, in sequence as follows: Number of title; number of chapter within the title; number of section within the chapter. Thus RCW 1.04.020 is Title 1, chapter 4, section 20." Preface to Revised Code of Washington at iii (2000). Similarly, RCW 46.20.308 is title 46, chapter 20, section 308. RCW 46.20.308(3) is a subsection of RCW 46.20.308. Therefore the language "[e]xcept as provided in this section" found in RCW 46.20.308(3) encompasses ALL of section 308 and its 11 subsections.

"The word `section' is ordinarily used to denote a separately numbered part of a statute, including all subdivisions or paragraphs...." Groves v. Meyers, 35 Wash.2d 403, 406, 213 P.2d 483 (1950). However there are exceptions. We ultimately determined in Groves the term "section" was not used in its ordinary sense, thus giving "effect to the rule that a statute should, if possible, be so construed that no clause, sentence or word shall be superfluous, void, or insignificant." Id. at 407, 213 P.2d 483.

But here there is no need to interpret the term "section" in its nonordinary sense— quite the contrary, to do so would render portions of RCW 46.20.308(2) superfluous, void, or insignificant. RCW 46.20.308(2) provides a breath test shall be administered at the direction of a law enforcement officer in certain situations. RCW 46.20.308(2). The subsection goes on to state:

However, in those instances where the person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample or where the person is being treated in a hospital, clinic, doctor's office, emergency medical vehicle, ambulance, or other similar facility in which a breath testing instrument is not present or where the officer has reasonable grounds to believe that the person is under the influence of a drug, a blood test shall be administered by a qualified person as provided in RCW 46.61.506(4). ...

Id. (emphasis added). If we were to hold that a blood test may not be administered except as provided in RCW 46.20.308(3), we would effectively render much of RCW 46.20.308(2) a nullity. This is inconsistent with "the rule that a statute should, if possible, be so construed that no clause, sentence or word shall be superfluous, void, or insignificant."

Groves, 35 Wash.2d at 407,213 P.2d 483; see also DGHI Enters. v. Pac. Cities, Inc., 137 Wash.2d 933, 941, 977 P.2d 1231 (1999)

("`A statute should be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'" (quoting Martin v. Dep't of Soc. Sec., 12 Wash.2d 329, 332, 121 P.2d 394 (1942))).

Moreover the rule enunciated in Beigh that blood tests may be administered only under RCW 46.20.308(3) is inconsistent with other decisions from this Court and from the various divisions of the Court of Appeals interpreting RCW 46.20.308.

Division One has on at least two prior occasions decided cases where the authority for administering a blood test did not come from RCW 46.20.308(3). The authority in O'Neill v. Department of Licensing, 62 Wash.App. 112, 813 P.2d 166 (1991) came from RCW 46.20.308(2). O'Neill was arrested for driving while intoxicated (DWI) after a single vehicle collision in which his passenger was injured. O'Neill, 62 Wash.App. at 114-15, 813 P.2d 166. He was transported to the hospital where the arresting officer read O'Neill his implied consent warnings and asked him to submit to a blood test. Id. Division One reviewed the language of RCW 46.20.308(2) and observed:

Although the statute allows an arresting officer to request both breath and blood tests, it does not leave the choice between the two to the arresting officer's discretion. Instead, it states specific conditions which must be met before a blood test may be administered in lieu of a less intrusive breath test.

O'Neill, 62 Wash.App. at 120, 813 P.2d 166. "[W]here there is an issue of fact on the presence...