Greenwood v. Department of Motor Vehicles

• Decision Date: 09 June 1975
• Docket Number: No. 2548--I,2548--I
• Citation: 536 P.2d 644,13 Wn.App. 624
• Parties: , 98 A.L.R.3d 566 Dale Douglas GREENWOOD, Respondent, v. DEPARTMENT OF MOTOR VEHICLES, State of Washington, Appellant.
• Court: Washington Court of Appeals

Page 624

13 Wn.App. 624

536 P.2d 644, 98 A.L.R.3d 566

Dale Douglas GREENWOOD, Respondent, v. DEPARTMENT OF MOTOR VEHICLES, State of Washington, Appellant.

No. 2548--I.

Court of Appeals of Washington, Division 1.

June 9, 1975.

Slade Gorton, Atty. Gen. of Washington, David R. Minikel, Asst. Atty. Gen., Olympia, for appellant.

Dale Douglas Greenwood, pro se.

SWANSON, Judge.

Does a person arrested pursuant to RCW 46.20.308, the implied consent statute, have the right to subject his decision to submit to a chemical test of his breath, as directed by the arresting officer, to the condition that he First be permitted to have a blood test administered by a qualified person of his choosing? That is the sole question presented by this appeal.

The trial court's findings of fact are undisputed. The parties have stipulated that at about 9 p.m. on may 17, 1972, the respondent Greenwood was arrested near Renton, Washington, by Trooper Ronald E. Plowman of the Washington State Patrol who had reasonable grounds to believe that Greenwood was operating a motor vehicle while under the influence of intoxicating liquor. Trooper Plowman prepared a breathalyzer machine for the purpose of making a chemical test of Greenwood's breath and three times requested Greenwood to submit to the test, each time reading a statement to Greenwood advising him of the consequences of refusal to submit to the test. ¹ Greenwood declined to take the breath test but indicated that he wanted a blood test. Thereupon, he was advised that the blood test could not be taken in lieu of the breath test but was transported to Valley General Hospital where a blood test was given. At approximately 1:10 a.m., after completion of the blood test, Greenwood stated, 'Now, I can take the breathalyzer (at) anytime.' Trooper Plowman then advised Greenwood that he had already had three chances to take the test, and transported him to King County jail for booking.

Subsequently, pursuant to RCW 46.20.308(3), the Department of Motor Vehicles ordered revocation of Greenwood's license to drive for 6 months. Greenwood appealed this revocation to the superior court which ordered that his license be reinstated, based primarily upon the following conclusion of law:

There was substantial compliance with the statute and the statute does not require that the breath test at the direction of a law enforcement officer be administered first.

Conclusion of law No. 2.

That petitioner's (Greenwood's) final response after the blood test was administered does not constitute a refusal.

Conclusion of law No. 3. The Department of Motor Vehicles appeals, assigning error to the quoted conclusions of law, and to the trial court's conclusion of law, order and judgment directing the reinstatement of Greenwood's driving privileges. Greenwood's counsel did not file a brief in support of the trial court's judgment, but appeared at oral argument to urge that we affirm on the basis that the trial court properly concluded that Greenwood in good faith substantially complied with the implied consent statute. We have determined, however, that the Department's claims of error are meritorious and that reversal is required.

The relevant portion of RCW 46.20.308 provides:

(1) Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent . . . to a Chemical test . . . of his breath . . . The test . . . shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state 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 . . . 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.

(Italics ours.) The trial judge took the view that Greenwood, despite his three-time refusal to take the breath test, nevertheless did not 'refuse' to take such test within the meaning of RCW 46.20.308 because he was willing to take the breathalyzer 'anytime' after a blood test was administered. Thus, the trial judge concluded that the reference to 'additional tests' in the statute and in the arresting officer's recitation of rights might be misunderstood by an accused and, in any event, did not constitute a requirement that the breath test be given first, prior to 'additional tests,' such as the blood test requested by Greenwood. ²

We disagree. In this case, there is no contention that Greenwood was confused as to the nature of his rights under the implied consent law as thrice explained to him by the arresting officer. See Shoemaker v. Department of Motor Vehicles, 11 Wash.App. 860, 526 P.2d 908 (1974); Department of Motor Vehicles v. Riba, 10 Wash.App. 857, 520 P.2d 942 (1974). Moreover, it is undisputed that Greenwood was properly advised of his rights at the time of his arrest, he was not unconscious, and therefore he was 'afforded the opportunity to exercise an intelligent judgment to submit or refuse to submit to a chemical test of his breath.' Hering v. Department of Motor Vehicles, 13 Wash.App. 190, 193, 534 P.2d 143, 146 (1975). See also Department of Motor Vehicles v. McElwain, 80 Wash.2d 624, 496 P.2d 963 (1972); Welch v. Department of Motor Vehicles, 13 Wash.App. 591, 536 P.2d 172 (1975). We are of the opinion that the meaning of the word 'additional' as it is used in RCW 46.20.308(1) is that a person who is arrested pursuant to the implied consent statute has the right to have tests of his own choosing After he has either submitted to or refused the test or tests directed by the law enforcement officer. In this case, Greenwood was conscious and, by the terms of the statute, the only test which the arresting officer could request him to take was the breath test. Accordingly, in this case, the operative meaning of the statutory word 'additional' must be that the breath test is to be administered or refused prior to any 'additional' tests, such as the blood test requested by Greenwood.

The drafters of legislation, including legislation such as that involved here which is the product of an initiative by the people, are presumed to have used no superflous words and we must accord meaning, if possible, to every word in a statute consistent with its purpose. Metcalf v. Department of Motor Vehicles, 11 Wash.App. 819, 525 P.2d 819 (1974). One of the purposes of the implied consent statute is to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication. Nowell v. Department of Motor Vehicles, 83 Wash.2d 121, 516 P.2d 205 (1973). 'The court should avoid unlikely or absurd or strained consequences and give to legislation a reading which makes it purposeful and effective.' State v. Richardson, 81 Wash.2d 111, 117, 499 P.2d 1264, 1267 (1972). It would be an absurd consequence destructive to the purpose of the implied consent law if we were to construe the word 'additional' in RCW 46.20.308...