Lynch v. State

• Decision Date: 14 August 2011
• Docket Number: No. 40041–3–II.,40041–3–II.
• Citation: 163 Wash.App. 697,262 P.3d 65
• Parties: Leesa Marie LYNCH, Respondent,v.STATE of Washington, DEPARTMENT OF LICENSING, Appellant.
• Court: Washington Court of Appeals

163 Wash.App. 697

262 P.3d 65

Leesa Marie LYNCH, Respondent,

v.STATE of Washington, DEPARTMENT OF LICENSING, Appellant.

No. 40041–3–II.

Court of Appeals of Washington, Division 2.

July 19, 2011.Publication Ordered Aug. 14, 2011.

Toni Marie Hood, Office of The Attorney General, Olympia, WA, for Appellant.Barbara Ann Bowden, Law Office of Barbara Bowden, Lakewood, WA, Michael R. Frans, Law Office of Michael R. Frans, Burien, WA, for Respondent.VAN DEREN, J.

[163 Wash.App. 700] ¶ 1 The State appeals the trial court's order reversing the Washington State Department of Licensing's (Department) decision to suspend Leesa Marie Lynch's driver's license and disqualify her commercial driver's license (CDL). The State argues that the implied consent warnings Lynch received were accurate and not misleading, and that Lynch failed to prove that the warnings prejudiced her. We hold that the warnings were not inaccurate or misleading and that Lynch has not shown actual prejudice in this civil proceeding. We reverse the superior court and affirm the Department's suspension of Lynch's driver's license and disqualification of her CDL.

FACTS

¶ 2 In the early morning of March 27, 2009, Washington State Patrol Trooper John Garden arrested Lynch for driving her personal vehicle under the influence (DUI). At 2:33 am, Lynch volunteered to take a portable breath test (PBT) and blew a breath sample that measured her blood alcohol content (BAC) at 0.125.¹ Lynch told Garden “she stopped by a bar after work and had a couple drinks.” Admin. Record (AR) at 51.

¶ 3 Garden placed Lynch in custody, informed her of her Miranda² rights, and transported her to the Sumner Police Department. At the police station, Garden read Lynch the implied consent warnings regarding taking the BAC tests that stated:

Warning! You are under arrest for:

...

RCW 46.61.502 or RCW 46.61.504: Driving or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor and/or drugs.

....

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 concentration.

1. You are now advised that you have the right to refuse this breath test; and that if you refuse:

(a) Your driver's license, permit, or privilege to drive will be revoked or denied by the [D]epartment ... for at least one year; and

(b) Your refusal to submit to this test may be used in a criminal trial.

2. You are further advised that if you submit to this breath test, and the test is administered, your driver's license, permit, or privilege to drive will be suspended, revoked, or denied by the [D]epartment ... for at least ninety days if you are:

(a) Age twenty-one or over and the test indicates the alcohol concentration of your breath is 0.08 or more, or you are in violation of RCW 46.61.502, driving under the influence, or RCW 46.61.504, physical control of a vehicle under the influence; or

(b) Under age twenty-one and the test indicates the alcohol concentration of your breath is 0.02 or more, or you are in violation of RCW 46.61.502, driving under the influence, or RCW 46.61.504, physical control of a vehicle under the influence.

3. If your driver's license, permit, or privilege to drive is suspended, revoked, or denied, you may be eligible to immediately apply for an ignition interlock driver's license.

4. You have the right to additional tests administered by any qualified person of your own choosing.

For those not driving a commercial motor vehicle at the time of arrest: If your driver's license is suspended or revoked, your commercial driver's license, if any, will be disqualified.

AR at 46 (capitalization omitted). Lynch was unable to sign the implied consent warnings form because she was handcuffed, but she confirmed to Garden that she “acknowledge[d] and understood” the warnings and agreed to give two breath samples. AR at 46. Garden then administered two BAC DataMaster tests that measured Lynch's breath alcohol level at 0.110 and 0.120.

¶ 4 On April 7, the Department mailed Lynch (1) an “order of suspension” informing her that her “driving privilege w[ould] be suspended for 90 days on May 27, 2009, at 12:01 a.m., for being in physical control or driving under the influence of alcohol,” in violation of RCW 46.20.3101,³ and (2) a “notice of disqualification,” informing her that her CDL would be disqualified on May 27 for one year under RCW 46.25.090.⁴ AR at 43, 59 (capitalization omitted).

¶ 5 At the subsequent administrative hearing that Lynch requested, she argued that her license suspension should be rescinded because (1) Garden lacked a legal basis to make contact with her on the night of her arrest, (2) Garden lacked a sufficient basis to believe that Lynch was driving while impaired, (3) the BAC machine was not an approved device, making the results inadmissible, and (4) Lynch was denied the opportunity to make a knowing and intelligent decision regarding whether she should take the breathalyzer test.

¶ 6 The administrative hearing officer found that (1) the initial contact was justified based on Lynch's vehicle traveling 80 miles per hour (mph) in a 60 mph zone; (2) Garden had probable cause to arrest Lynch based on “behavioral and physical indicia of alcohol consumption,” Lynch's admission that she had consumed alcohol, and Lynch's 0.125 result from the PBT that indicated Lynch had been driving her vehicle in violation of RCW 46.61.502; (3) the BAC DataMaster machine was approved and the results admissible; and (4) Garden “informed [Lynch] of the implied consent rights and warnings,” and Lynch “expressed no confusion regarding the[ ] implied consent rights and warnings and signed the form.” AR at 4. Additionally, the hearing officer concluded that Lynch “did not express confusion and the warnings that appear on the form are exactly what are listed in the statute. [Lynch] was properly informed of the rights and warnings required by RCW 46.20.308. [Lynch] had an opportunity to make a knowing and intelligent decision about taking the test.” AR at 6. The hearing officer sustained the Department's suspension of Lynch's driving privileges under RCW 46.20.308.

¶ 7 On August 19, Lynch appealed the Department's order to the superior court, arguing that the “hearing examiner erred in failing to suppress the breath test, as the [implied consent] warnings read to ... Lynch [we]re misleading and inaccurate and deprived her of an opportunity to make a knowing and intelligent decision regarding whether or not to submit to the breath test.” Clerk's Papers (CP) at 8. The superior court reversed the hearing examiner's ruling, holding that

the implied consent warnings read to ... Lynch were misleading in two respects: 1) the warnings implied the availability of the ignition interlock license would serve as a remedy for CDL disqualification; and 2) the warning was misleading as to the length of the CDL disqualification. The misleading nature of the warning prejudiced ... Lynch's ability to make a knowing and intelligent decision whether to take the BAC test.

CP at 139 (capitalization omitted). The superior court denied the State's reconsideration motion. We granted the State discretionary review.⁵

ANALYSIS

¶ 8 The State argues that the superior court erred in reversing the Department's order and in finding that the implied consent warnings were misleading. Lynch responds that the superior court properly reversed the Department's order because the warnings were misleading and implied that any CDL disqualification could be remedied by an ignition interlock driver's license and that the duration of the CDL disqualification would be for the same period of time as the suspension or revocation of Lynch's personal driver's license. We agree with the State. I. Implied Consent Warning under RCW 46.20.308A. Standard of Review

¶ 9 The validity of implied consent warnings is a question of law that we review de novo. Jury v. Dep't of Licensing, 114 Wash.App. 726, 731, 60 P.3d 615 (2002). We review the administrative order to determine whether the Department committed any errors of law, and we uphold findings of fact supported by substantial evidence. RCW 46.20.308(9); Clement v. Dep't of Licensing, 109 Wash.App. 371, 374, 35 P.3d 1171 (2001).

B. Implied Consent Statute

¶ 10 Washington's implied consent statute, RCW 46.20.308, “was enacted (1) to discourage persons from driving motor vehicles while under the influence of alcohol or drugs, (2) to remove the driving privileges of those persons disposed to driving while intoxicated, and (3) to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication.” Cannon v. Dep't of Licensing, 147 Wash.2d 41, 47, 50 P.3d 627 (2002). Under RCW 46.20.308(1), Washington drivers “are presumed to have consented to a breath or blood test to determine alcohol concentration if arrested for DUI, but drivers may refuse the test.” State v. Elkins, 152 Wash.App. 871, 876, 220 P.3d 211 (2009). “ ‘The choice to submit to or refuse the test is not a constitutional right, but rather a matter of legislative grace.’ ” Elkins, 152 Wash.App. at 876, 220 P.3d 211 (quoting State v. Bostrom, 127 Wash.2d 580, 590, 902 P.2d 157 (1995)).

¶ 11 RCW 46.20.308(2), Washington's implied consent statute, requires that:

The officer shall warn the driver, in substantially the following language, that:

(a) If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year; and

(b) If the driver refuses to take the test, the driver's refusal to take the test may be used in a criminal trial; and

(c) If the driver submits to the test and the test is administered, the driver's license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if the driver is age twenty-one or over and the test indicates the alcohol...