Graham v. Department of Licensing

• Decision Date: 18 January 1990
• Docket Number: No. 9224-1-III,9224-1-III
• Citation: 56 Wn.App. 677,784 P.2d 1295
• Parties: Ricki L. GRAHAM, Appellant, v. DEPARTMENT OF LICENSING, Respondent.
• Court: Washington Court of Appeals

Page 677

56 Wn.App. 677

784 P.2d 1295

Ricki L. GRAHAM, Appellant, v. DEPARTMENT OF LICENSING, Respondent.

No. 9224-1-III.

Court of Appeals of Washington Division 3, Panel Four.

Jan. 18, 1990.

Frank V. Bartoletta, Sanger & Bartoletta, Spokane, for appellant.

Margaret A. Gaffney, Asst. Atty. Gen., Olympia, for respondent.

THOMPSON, Judge.

Ricki L. Graham questions the propriety of the implied consent warning given her before she refused to submit to an alcohol breath test. Based on her refusal, the Department of Licensing revoked Ms. Graham's driver's license. We remand.

Ms. Graham was arrested by an officer of the Spokane Police Department on February 14, 1987. She was suspected of driving while under the influence of intoxicating liquor, and was read the following advice of rights:

WARNING: You are under the [sic ] arrest for: driving a motor vehicle while under the influence of intoxicating liquor. Further, you are now being asked to submit to a test of your breath which consists of two separate samples of your breath, taken independently, to determine alcohol content. You are now advised that you have the right to refuse this breath test; that if you refuse, your privilege to drive 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 may be used in a criminal trial.

Ms. Graham did not ask questions or ask to speak with a lawyer, but refused to submit to the test. Upon receipt of the officer's report of the refusal, the Department suspended Ms. Graham's driver's license for 1 year, as provided in RCW 46.20.308(6). Ms. Graham obtained de novo review, pursuant to RCW 46.20.334, in Spokane County Superior Court. The court sustained the revocation, and this appeal followed. ¹

The sole issue raised by Ms. Graham is whether she was properly warned of the consequences of her refusal and of her right to additional tests. She argues first that she was improperly warned her refusal could be used in a criminal trial. Former RCW 46.61.517 ² provided:

The refusal of a person to submit to a test of the alcoholic content of his blood under RCW 46.20.308 is admissible into evidence at a subsequent criminal trial.

Ms. Graham contends, however, that former RCW 46.61.502(1) ³ defined the offense of driving while under the influence in terms of alcohol content of breath. She argues that a refusal to submit to a test of alcohol content in blood is irrelevant to the issue of breath alcohol content.

This argument fails to account for the reference in the statute to RCW 46.20.308. Former RCW 46.20.308 ⁴ refers repeatedly to tests to determine alcohol content of "breath or blood", and to tests of "breath or blood". The implied consent warning required by RCW 46.20.308(2) refers to use in a criminal trial of refusal to take "the test", without limitation to either a breath or blood test. The obvious intent of the Legislature was to provide for admissibility of a person's refusal to submit to a test of breath or blood alcohol content. ⁵

In view of the clear legislative intent, and the mandatory duty of an officer to give the warning regarding admissibility of refusal evidence, see Spokane v. Holmberg, 50 Wash.App. 317, 322, 745 P.2d 49 (1987), review denied sub nom. Box v. Grant Cy. Dist. Court, 110 Wash.2d 1013 (1988), the court did not err in concluding Ms. Graham was properly warned of the potential consequences of her refusal.

Ms. Graham next contends she was improperly advised she was entitled to additional tests at her own expense. The phrase "at your own expense" is inaccurate and improper, see State v. Bartels, 112 Wash.2d 882, 889-90, 774 P.2d 1183 (1989), and "could, therefore, deny an indigent driver the opportunity to make a knowing and intelligent decision whether to take the Breathalyzer test." Gonzales v. Department of Lic., 112 Wash.2d 890, 898-99, 774 P.2d 1187 (1989). However, a driver must demonstrate she was actually prejudiced by the inaccurate warning. Gonzales, at 901, 774 P.2d 1187. The drivers in Gonzales, at 899, 774 P.2d 1187, made no claim of indigency, and the court concluded:

We hold that since the licensees in the two cases before us were not prejudiced by the statement that additional tests could be obtained "at your own expense", such language in their implied consent warnings does not serve as grounds for invalidating the revocation of their driver's licenses.

Gonzales, at 902, 774 P.2d 1187. In this case, Ms. Graham has argued the improper language created a "chilling effect" on her decision whether to take the breath test. Unlike the drivers in Gonzales, who made no claim of indigency, Ms. Graham argued the inaccurate warnings actually prejudiced her decision.

The question of actual prejudice is a factual one. We therefore remand the case for this determination.

We offer the following observations as guidance to the court on remand. The question to be addressed is whether Ms. Graham was actually prejudiced by inclusion of the "at your own expense" language. This language is inaccurate because "[u]nder our court rules, an indigent driver may in the appropriate case obtain reimbursement for the costs of an additional test." Gonzales, at 898, 774 P.2d 1187. CrRLJ 3.1(f) provides:

(1) A...