Johnson v. Department of Licensing

• Decision Date: 14 July 1993
• Docket Number: No. 14838-2-II,14838-2-II
• Court: Washington Court of Appeals
• Parties: Jerry N. JOHNSON, Appellant, v. The DEPARTMENT OF LICENSING, Respondent. Division 2

Page 326

71 Wn.App. 326

858 P.2d 1112

Jerry N. JOHNSON, Appellant, v. The DEPARTMENT OF LICENSING, Respondent.

No. 14838-2-II.

Court of Appeals of Washington,

Division 2.

July 14, 1993.

Publication Ordered Sept. 17, 1993.

Craig A. Ritchie, Doherty, Doherty & Ritchie, Port Angeles, for appellant.

Christine O. Gregoire, Atty. Gen., and John S. Barnes, James R. Silva, Asst. Attys. Gen., Olympia, for respondent.

SEINFELD, Acting Chief Judge.

Jerry Johnson appeals the revocation of his driver's license following his refusal to submit to a breath/alcohol test. He claims that the arresting officer did not give him an adequate warning of his rights, denied him counsel, and did not "request" that he take the test. He also claims statutory deficiencies with the trooper's report to the Department of Licensing.

On February 24, 1989, at 10:57 pm, Trooper Bret Yacklin arrested Johnson for driving while under the influence of intoxicating liquor. Johnson contends that Yacklin asked him to take a breath test on a portable Breathalyzer that the trooper had with him. The record is unclear whether Johnson took the field test. However, it is undisputed that Yacklin transported Johnson to the Clallam County Sheriff's Office to administer a breath test on the BAC Datamaster machine. While Yacklin and Johnson waited in the lobby for the BAC machine to be available Yacklin read Johnson his Miranda ¹ rights and asked Johnson to waive them. Johnson refused.

Johnson testified that he asked three times to contact an attorney before finally refusing to take the breath test. Yacklin disagreed, testifying that Johnson never requested an attorney, either at the scene or at the sheriff's office. In discussing the contradictory testimony, the trial court noted that Johnson's testimony was "incredible" and orally found that Johnson did not ask for an attorney until after he was in jail. The trial court did not enter explicit written findings regarding Johnson's request for counsel.

Yacklin next gave Johnson the implied consent warning, advising him he was under arrest for driving under the influence and

[f]urther, 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.

Yacklin did not state, and Johnson did not ask, the length of the revocation period or whether Johnson would be permitted to drive with an occupational permit during the revocation period. Nor did Johnson ask for any explanation of his rights.

Johnson refused to sign the form acknowledging receipt of this warning. Yacklin then asked, "Will you now submit to a breath test?" Johnson replied, "No." A little after midnight, Yacklin set up the breath test machine and again asked Johnson if he would submit to a breath test. Johnson again said, "No."

Later, Yacklin filled out a "Report of Refusal to Submit to Breath/Blood Test". The report is a Department of Licensing form with spaces for information about the driver, the date and time of the arrest, and the name and signature of the arresting officer. Pre-printed on the form, after the driver's information, is the following:

At that time [of arrest] there were reasonable grounds to believe that the aforementioned person [Johnson] had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor. The afornamed [sic] individual was requested to submit to a breath/blood test and was informed of the consequences of refusal, and rights under RCW 46.20.308. The aformentioned [sic] person then refused to submit to the requested test.

After reading a sentence at the bottom of the form stating, "I certify (or declare) under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct", Yacklin signed the form.

Yacklin sent the form to the Department of Licensing and the Department revoked Johnson's privilege to drive a motor vehicle in the State of Washington for 1 year. Johnson sought and received a formal administrative hearing, resulting in a final order sustaining the revocation. Johnson then filed a notice of appeal in the Clallam County Superior Court. After a de novo hearing, the trial court sustained the revocation.

The implied consent statute, RCW 46.20.308, requires that the State provide a driver the opportunity to make a knowing and intelligent decision whether to consent to an evidentiary breath test. Gonzales v. Department of Licensing, 112 Wash.2d 890, 896, 774 P.2d 1187 (1989). On appeal, Johnson suggests that his refusal to submit to the breath test was not knowing and intelligent because he was confused by the implied consent warnings as given, by his lack of access to an attorney, and by Yacklin's earlier request that he take a breath test in the field.

Johnson argues that the Trooper Yacklin's warning as to the consequences of refusing to submit to a breath test was inaccurate and incomplete. He claims the warning was deficient because it included a statement that additional tests would be "at your own expense," and because it did not include information regarding the length of the revocationperiod or the availability of an occupational permit. His arguments lack merit.

An arresting officer is required to inform the arrested driver of the driver's rights under the implied consent law and of the consequences of exercising those rights. RCW 46.20.308(2). The statute states, in part, that the officer must advise the driver of his or her right to refuse the breath test, that the driver's privilege to drive will be revoked or denied if he or she refuses to submit to the test, and that the driver has the right to have additional tests administered by any qualified person of his or her choosing. An indigent person is entitled to reimbursement from public funds for the cost of an additional test. CrR 3.1(f); Gonzales, 112 Wash.2d at 898, 774 P.2d 1187; State v. Dunivin, 65 Wash.App. 501, 503, 828 P.2d 1150, review denied, 120 Wash.2d 1002, 838 P.2d 1143 (1992). Johnson was not indigent and thus was not prejudiced by the inclusion of the "at your own expense" language. See Gonzales, 112 Wash.2d at 899, 901, 774 P.2d 1187; Dunivin, 65 Wash.App. at 504, 828 P.2d 1150. Nor was Yacklin required to inform Johnson of the period of revocation or the availability of an occupational permit, Burnett v. Department of Licensing, 66 Wash.App. 253, 257-59, 832 P.2d 1321 (1992), and Johnson asked about neither. Johnson has failed to demonstrate that the implied consent warnings as given were insufficient or confusing.

Johnson also claims the trial court erred in failing to find that he was denied access to counsel. A driver arrested for driving while intoxicated must be advised of his Miranda rights so that he can intelligently respond to a police interrogation request and understand his constitutional and court rule rights of access to counsel. State v. Staeheli, 102 Wash.2d 305, 309, 685 P.2d 591 (1984); CrRLJ 3.1. After the police advise a defendant of his rights, "[i]f the defendant requests the assistance of counsel, access to counsel must be provided before administering the test." (Italics ours.) State ex rel Juckett v. Evergreen Dist. Court, 100 Wash.2d 824, 831, 675 P.2d 599 (1984).

Johnson contends that he requested and was denied counsel after being advised of his right to counsel. However, the trial court found otherwise, stating in its oral decision:

Therefore, I find that Mr. Johnson did not ever ask for access to an attorney until after he was in a cell and the jailer did allow such a request.

Although the trial court did not make an explicit written finding to this effect, we look to the court's oral decision to supplement and interpret its findings. State v. Motherwell, 114 Wash.2d 353, 358 n. 2, 788 P.2d 1066 (1990); In re LaBelle, 107 Wash.2d 196, 219, 728 P.2d 138 (1986); Wolf v. Department of Motor Vehicles, 27 Wash.App. 214, 217, 616 P.2d 688 (1980).

The trial court must determine disputed facts by weighing the credibility of witnesses' testimony. We uphold a finding of the trial court that is supported by substantial evidence. State v. Thetford, 109 Wash.2d 392, 396, 745 P.2d 496 (1987). Such is the case here. The trial court did not err in failing to find that Johnson requested and was denied access to counsel. See Juckett, 100 Wash.2d at 830-31, 675 P.2d 599; State v. Halbakken, 30 Wash.App. 834, 835-37, 638 P.2d 584 (1981).

Nor was Johnson's opportunity to make an intelligent decision destroyed by the State's alleged earlier request, not preceded by a warning, that Johnson take a breath test at the scene of the arrest. Schoultz v. Department of Motor Vehicles, 89 Wash.2d 664, 668, 574 P.2d 1167 (1978). "As long as the explanation is given, the refusal follows that explanation, and the revocation is based on that informed refusal, the requirements of the statute have been met." Schoultz, 89 Wash.2d at 668, 574 P.2d 1167. The trial court did not err in failing to find that Johnson was confused and thus unable to make an intelligent decision not to consent to the breath test.

Johnson also raises as an issue whether the State violated his right to remain silent by questioning him after he had refused to waive his Miranda rights. However, Johnson fails to discuss this issue in his brief. We will not consider an issue that is not supported by argument and citation of authority. McKee v. American Home Prod. Corp., 113 Wash.2d 701, 705, 782 P.2d 1045 (1989).

Johnson also contends Yacklin was required to "reques...