Fritts v. Department of Motor Vehicles, 432--II

• Decision Date: 29 December 1971
• Docket Number: No. 432--II,432--II
• Citation: 6 Wn.App. 233,492 P.2d 558
• Court: Washington Court of Appeals
• Parties: Maurice FRITTS, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Office of Driver Services, State of Washington, Respondent.

Page 233

6 Wn.App. 233

492 P.2d 558

Maurice FRITTS, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Office of Driver Services State of Washington, Respondent.

No. 432--II.

Court of Appeals of Washington, Division 2.

Dec. 29, 1971.

Robert W. Garver, of Garver & Garver, Camas, for appellant.

Slade Gorton, Atty. Gen., John H. Keith, David R. Minikel, Asst. Attys. Gen., Olympia, for respondent.

PETRIE, Chief Judge.

Appellant was charged with driving while under the influence of intoxicating liquor. He was found not guilty b a jury, but, because he had refused to submit to a breathalyzer test at the time of his arrest, the Department of Motor Vehicles revoked his driver's license. After a formal administrative hearing the department sustained the revocation which has been stayed pending the resolution of this appeal. After filing a petition in superior court to review the department's final order, the trial judge affirmed the administrative determination in a de novo hearing. This appeal followed therefrom.

The overall issue presented by this appeal is whether or not the Department of Motor Vehicles properly revoked appellant's driver's license. Such action is governed by RCW 46.20.308, which provides in part:

(1) Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of RCW 46.61.506, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood If arrested for any offense where, at the time of the arrest, The arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor. . . . Such officer shall inform the person of his right to refuse the test, and of his right to have additional tests administered by any qualified person of his choosing as provided in RCW 46.61.506. The officer shall warn the driver that his privilege to drive will be revoked or denied if he refuses to submit to the test. Unless the person to be tested is unconscious, the chemical test administered shall be of his breath only.

(3) If, following his arrest, the person arrested refuses upon the request of a law enforcement officer to submit to a chemical test of his breath, after being informed that his refusal will result in the revocation or denial of his privilege to drive, no test shall be given. The Department of motor vehicles, upon the receipt of a sworn report of the law enforcement officer that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor and that the person had refused to submit to the test upon the request of the law enforcement officer after being informed that such refusal would result in the revocation or denial of his privilege to drive, Shall revoke his license or permit to drive or any nonresident operating privilege.

(Emphasis added.)

This statute 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.

In support of his petition to superior court to review the department's final order of revocation, and in support of his appeal to this court, the appellant raises three arguable issues in an attempt to substantiate his contention that his license should not be revoked: (1) his arrest was unlawful, invalidating the arresting officer's right to request him to take the test; (2) there was not sufficient evidence to conclude that, at the time of his arrest, the arresting officer had reasonable grounds to believe he had been driving or was in actual physical control of a motor vehicle under the influence of intoxicating liquor; and (3) his acquittal on the charge of driving while intoxicated prevents the department from revoking his driver's license for his refusal to take a breathalyzer test.

The record discloses that on the night he was arrested appellant was traveling north on 15th Street in Washougal and turned east onto 'B' Street. Officer Phillips, an off-duty police officer of the Washougal Police Department, had stopped his car at the intersection. As appellant's car made the turn and passed by him, Phillips recognized the appellant as the driver and noticed that he 'was slumped over the wheel of his vehicle.' Phillips then motioned to an approaching patrol car driven by Officer Hammock. He told Hammock he suspected the driver of the vehicle which had just passed him of being intoxicated and thought he should be checked out. Officer Hammock testified that after receiving Phillips' tip:

I looked down the street, see the car pulled over to the curb, came on down the street pulled over to the curb, actually about 18th and 'B'. By this time I had started this way. I saw a subject get out of the car, and just as he got out I pulled in behind him.

Appellant then walked across the street to the liquor store, the engine of his vehicle still running. The store was closed. After trying the knob on the door he turned to leave and was met by Officer Hammock. Hammock stated he noticed a strong odor of alcohol about him and described his walk across the street as 'staggering.' Upon producing his driver's license he was asked to perform three sobriety tests, none of which were performed satisfactorily. Believing appellant to be under the influence of alcohol, Officer Hammock told him he was under arrest and read to him his Miranda rights. The officer then requested him to take a breathalyzer test. Though he was twice informed of his rights under the Implied Consent Law and the consequences of refusal, once in the patrol car at the scene of the arrest and again in front of the breathalyzer machine at the sheriff's office, appellant refused to submit to the test. Upon receipt of Officer Hammock's sworn statement complying with RCW 46.20.308, the Department of Motor Vehicles revoked appellant's driver's license.

Appellant's first contention is that his arrest was unlawful. There is no affirmative declaration in the statute that the arrest be lawful; the statute declaring simply 'if arrested for any offense.' However, we most emphatically agree with appellant, and the department acknowledges, that inherently in the statute is the requirement that the arrest be lawful. To hold otherwise would not only be inconsistent with the legislative purpose of the statute, but would also be unconscionable.

The appellant contends, initially, that the necessary standards to effect his arrest for a misdemeanor did not exist. In order to make an arrest for a misdemeanor without a warrant, the arresting officer must have probable cause to believe that an offense is being committed in his presence. Tacoma v. Harris, 73 Wash.2d 123, 436 P.2d 770 (1968). In Harris, the court reaffirmed the standard for probable cause previously asserted in Sennett v. Zimmerman, 50 Wash.2d 649, 651, 314 P.2d 414, 416 (1957):

'The probable cause which will justify arrest for a misdemeanor without a warrant must be a judgment based on personal knowledge acquired at the time through the senses, or inferences properly to be drawn from the testimony of the senses.'

In analyzing this contention by the appellant, we must first note the distinction between the requirement that the driver be arrested and the requirement that the arresting officer have reasonable grounds to believe the driver had been operating a motor vehicle while intoxicated in order that the breathalyzer test may be requested. RCW 46.20.308 provides a person operating a motor vehicle on the public highways of this state is deemed to have consented to a chemical test of his breath 'if Arrested for Any offense where, at the time of the arrest, The arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle .. .' while intoxicated. A determination that the officer had 'reasonable grounds to believe' the person had been driving while intoxicated is not dependent on the arrest. While there may be certain observations an officer might make in determining whether he has...