Gonzales v. State Dept. of Licensing

• Decision Date: 29 June 1989
• Docket Number: Nos. 55740-3,55741-1,s. 55740-3
• Citation: 112 Wn.2d 890,774 P.2d 1187
• Parties: Michael GONZALES, Appellant, v. STATE of Washington DEPARTMENT OF LICENSING, Respondent. Lisa Jo TOMKINS, Appellant, v. STATE of Washington DEPARTMENT OF LICENSING, Respondent.
• Court: Washington Supreme Court

Page 890

112 Wn.2d 890

774 P.2d 1187

Michael GONZALES, Appellant, v. STATE of Washington DEPARTMENT OF LICENSING, Respondent.

Lisa Jo TOMKINS, Appellant, v. STATE of Washington DEPARTMENT OF LICENSING, Respondent.

Nos. 55740-3, 55741-1.

Supreme Court of Washington,

En Banc.

June 29, 1989.

Revelle, Ries & Hawkins, P.S. by David M. Shank, Bellevue, for appellant Gonzales

Cowan, Hayne & Fox by Douglas L. Cowan, Bellevue, for appellant Tomkins.

Kenneth O. Eikenberry, Atty. Gen., Jeffrey O.C. Lane, Sr. Asst. Atty. Gen., James R. Silva, Asst. Atty. Gen., Olympia, for respondent.

ANDERSEN, Justice.

FACTS OF CASES

In these consolidated cases, the State of Washington Department of Licensing revoked the driver's licenses of Michael Gonzales and Lisa Jo Tomkins for refusing to submit to a Breathalyzer test after being arrested for driving while intoxicated. Mr. Gonzales and Ms. Tomkins challenge their respective license revocations, claiming that they were not properly advised of their implied consent rights concerning the taking of this test. We affirm.

The case of State v. Bartels, 112 Wash.2d 882, 774 P.2d 1183 (1989), referred to herein, is a companion to the two cases here before us in the sense that Bartels was argued before this court at the same time.

GONZALES CASE

On June 17, 1984, King County Police Officer Carolyn Dopps arrested Mr. Gonzales for driving while under the influence of intoxicating liquor. After taking him to the police station, the officer advised him of his rights concerning the taking of a Breathalyzer test. She informed him:

You are under arrest for driving a motor vehicle while under the influence of intoxicating liquor. Further, you are now being asked to submit to a chemical test of your breath to determine the alcoholic content of your blood. You are now advised that you have the right to refuse this breath test; that if you refuse, your privilege to drive (Italics ours.) This case primarily concerns the effect of the emphasized language on the adequacy of these warnings.

will be revoked or denied by the department of licensing and that you have the right to additional tests administered by a qualified person of your own choosing and at your own expense and that your refusal to take the test shall be used against you in a subsequent criminal trial.

After the officer read these warnings, Mr. Gonzales inquired about the effect of taking or not taking the Breathalyzer test on the status of his driver's license. The officer explained to him that if he refused to take the test, his license would be revoked for a year, and that if he was convicted of driving while intoxicated, he would lose his license for 90 days. The officer asked him to take the Breathalyzer test three separate times, each request being made approximately a minute after the previous request. Mr. Gonzales did not verbalize his refusal but nevertheless firmly declined to take the test. The Department revoked Mr. Gonzales' driver's license for 1 year for refusing to take the test, following which he appealed to the Superior Court for King County, which sustained the Department's decision.

TOMKINS CASE

On January 22, 1985, Officer Randal Houser of the Medina/Clyde Hill Police Department arrested Ms. Tomkins for driving while under the influence of intoxicating liquor. The officer read Ms. Tomkins a form of implied consent warnings which included the following language:

You further have the right to take additional tests administered by a physician, or a qualified technician, chemist, registered nurse, or other qualified person of your own choosing and at your own expense.

(Italics ours.) This case also concerns the effect of this emphasized language on the adequacy of the warnings given.

Ms. Tomkins also refused to take the Breathalyzer test and the Department of Licensing revoked her driver's These consolidated cases present two major issues, the first of which is common to both.

                license.   The Superior Court sustained the Department's decision in her case as well
                

ISSUES

ISSUE ONE. Can the Department of Licensing revoke a driver's license for refusal to take a Breathalyzer test if the implied consent warnings given to the driver include the language that additional tests may be obtained "at your own expense"?

ISSUE TWO. Can the Department of Licensing revoke a driver's license for refusal to take a Breathalyzer test if the implied consent warnings given to the driver state that a refusal to take the test "shall be used against you in a subsequent criminal trial"?

DECISION

ISSUE ONE.

CONCLUSION. A driver must be afforded an opportunity to make a knowing and intelligent decision whether to take the Breathalyzer test. The statement that additional tests may be obtained "at your own expense" is inaccurate as to indigent drivers, and its inclusion in an implied consent warning could, therefore, deny an indigent driver the opportunity to make a knowing and intelligent decision. Mr. Gonzales and Ms. Tomkins, however, make no claim of indigency. Thus, the inaccurate language contained in their implied consent warnings did not prejudice them and does not serve as a ground to invalidate the revocation of their driver's licenses.

Under the implied consent statute, a person arrested for driving while under the influence of intoxicating liquor is deemed to have consented to a test of his or her breath or blood for purposes of determining the alcoholic content thereof. ¹ Among other things, this is intended to provide an efficient means of gathering evidence of intoxication. ² A driver may, however, withdraw his or her consent to take the Breathalyzer test; ³ the driver's refusal to submit to the Breathalyzer test, however, will result in the revocation of his or her driver's license by the Department of Licensing. ⁴

A driver also has the right under the implied consent statute to take additional tests. ⁵ The purpose of allowing such additional tests "is to afford a DWI suspect the opportunity to obtain evidence with which to impeach the results of a single Breathalyzer test". State v. Stannard, 109 Wash.2d 29, 35, 742 P.2d 1244 (1987).

Before administering the Breathalyzer test, a law enforcement officer must inform the driver of his or her rights concerning the taking of this test as well as of the consequences of a refusal. The implied consent statute requires as follows:

The officer shall inform the person of his or her right to refuse the breath or blood test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver that (a) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test, and (b) that his or her refusal to take the test may be used in a criminal trial.

RCW 46.20.308(2)(part). Further, the statute referenced in the portion of the implied consent statute just quoted provides:

The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer.

RCW 46.61.506(5)(part).

The implied consent warnings read to Mr. Gonzales and Ms. Tomkins, hereinafter referred to as "the licensees", included the statement that they could obtain additional tests "at your own expense". This language does not appear in the statutes. The statutes set forth above provide that a person may obtain additional tests, but they are silent regarding who will pay the costs thereof. The "at your own expense" language appears to have had its origins in dicta from previous opinions of this court. ⁶

The licensees contend that the inclusion of the "at your own expense" language in their implied consent warnings requires the invalidation of their driver's license revocations. We disagree.

The standard for determining whether a driver has been properly advised of his or her implied consent rights is set forth in State v. Whitman Cy. Dist. Court, 105 Wash.2d 278, 714 P.2d 1183 (1986). There, we first observed that "[t]he courts of this state have not addressed the warning requirements of the implied consent law on a constitutional basis, but rather as rights granted through the statutory process." Whitman Cy., at 281, 714 P.2d 1183. Then, after reviewing a number of cases on the subject, we concluded:

These cases clearly establish the proposition that the accused has a right under the implied consent statute to be afforded the opportunity to make a knowing and intelligent decision whether to submit to an evidentiary breath test. The fundamental issue for decision in this case is whether the respective defendants were afforded such an opportunity based on the warnings which were given.

Whitman Cy., at 282, 714 P.2d 1183. ⁷ Accordingly, the relevant inquiry in the cases now before us is likewise whether the warnings given afforded the licensees the opportunity to make a knowing and intelligent decision whether to take the Breathalyzer test.

The implied consent statute mandates that several warnings be given. A driver must be informed: (1) "of his or her right to refuse the breath or blood test"; (2) "of his or her right to have additional tests administered by any qualified person of his or her choosing"; (3) "that ... his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test"; and (4) "that his or her refusal to take the test may be used in a criminal trial". RCW 46.20.308(2). The failure to give one of these warnings can deny a driver the opportunity to make a knowing and intelligent decision. In Connolly v. Department of Motor Vehicles, 79 Wash.2d 500, 487 P.2d 1050 (1971), this court invalidated the revocation of the defendant's driver's license where the driver was not informed of the right to take additional tests. The court in that case emphasized that...