Mairs v. Department of Licensing

• Decision Date: 12 July 1993
• Docket Number: No. 31406-8-I,31406-8-I
• Citation: 70 Wn.App. 541,854 P.2d 665
• Court: Washington Court of Appeals
• Parties: Mary E. MAIRS, Respondent, v. The DEPARTMENT OF LICENSING, Appellant. Division 1

Page 541

70 Wn.App. 541

854 P.2d 665

Mary E. MAIRS, Respondent, v. The DEPARTMENT OF LICENSING, Appellant.

No. 31406-8-I.

Court of Appeals of Washington,

Division 1.

July 12, 1993.

Christine O. Gregoire, Atty. Gen., and Sarah J. MacDuff, Asst. Atty. Gen., Seattle, for appellant

Kenneth J. Evans, and McIntosh, Lewis, Evans & Nielsen, Mount Vernon, for respondent.

[854 P.2d 667] PER CURIAM.

The Department of Licensing of the State of Washington (Department) appeals the trial court order reversing its decision to revoke the driving privileges of Mary E. Mairs and reinstating her driver's license. Pursuant to RAP 18.12, the matter has been referred to a panel of this court for accelerated review of the merits. We affirm.

On the evening of September 30, 1990, Mairs was injured in a single-vehicle accident. Mairs was transported to a nearby hospital for treatment of her injuries. She was arrested at the Mairs thereafter filed a petition in Skagit County Superior Court for de novo review pursuant to RCW 46.20.334. After a hearing on the petition, the superior court entered the following findings of fact:

                hospital by a trooper of the State Patrol for allegedly driving while under the influence of intoxicants.   After advising Mairs of the implied consent warnings, State Trooper Ginnard asked Mairs to take a blood test;  to which Mairs responded that she would give blood for medical purposes only. 1  The Department subsequently revoked Mairs' driver's license for refusing to submit to the blood test
                

1. The respondent issued an order of revocation revoking the petitioner's driver's license.

2. On September 30, 1990, Sgt. K. Ginnard of the Washington State Patrol arrested Mary E. Mairs in Skagit County, Washington.

3. At the time and place of the petitioner's arrest, Sgt. Ginnard had reasonable grounds to believe that the petitioner had been driving, or was in actual physical control of a motor vehicle, while under the influence of intoxicating liquor.

4. That during the time petitioner was in custody, Sgt. Ginnard advised petitioner of the rights under RCW 46.20.308 and the consequences of refusing to submit to a breath test.

5. Petitioner was treated for injuries at Cascade Valley Hospital. At the hospital, Sgt. Ginnard requested the petitioner to submit to a blood test. No BAC Verifier or Datamaster was present at Cascade Valley Hospital at the time of the request. Sgt. Ginnard had a portable breath testing device in his patrol vehicle at the time of the request and he indicated that the portable breath testing instrument was a breath testing device. He did not offer Mrs. Mairs a test with this instrument.

6. After having been informed of the implied consent rights and warning, petitioner indicated that she would give blood "for medical reasons only". She had already given a blood sample. The next day Sgt. Ginnard was aware of the blood sample because a representative of the hospital told him that the reading was a .41, to the best of his recollection.

7. Sgt. Ginnard attempted to clarify the implied consent rights to Mrs. Mairs by advising her that she would probably lose her license if she refused to take a blood test.

Based on these findings, the court entered the following pertinent conclusions of law: ²

1. The court has jurisdiction over the parties and subject matter. Sgt. Ginnard testified that he had a breath testing instrument in his car, but did not offer a test from this instrument to Mrs. Mairs. RCW 46.20.308 does not define the term "breath testing instrument". Sgt. Ginnard was required to offer Mrs. Mairs a test from the breath testing instrument since one was present. Therefore, he incorrectly offered the petitioner a blood test.

2. Sgt. Ginnard obtained the results of the blood test given by the hospital as a result of Mrs. Mairs' blood sample which was taken. Therefore, the state had access to the blood test results and Mrs. Mairs effectively complied with the statutory requirement to provide a sample.

3. In addition, Sgt. Ginnard indicated that Mrs. Mairs' license would "probably" be suspended, which is in conflict with the implied consent warnings that her license "will" be revoked. This statement is confusing, given all the facts and circumstances of this case, and especially in light of Mrs. Mairs' comment that she would give blood for medical purposes only.

The court reversed the revocation of Mairs' driving privilege and ordered the Department to reinstate her driver's license. This appeal followed.

DECISION

Initially, the Department assigns error to the following finding of fact entered by the trial court:

7. Sgt. Ginnard attempted to clarify the implied consent rights to Mrs. Mairs by advising her that she would probably lose her license if she refused to take a blood test.

The Department contends that this formal finding is inconsistent with comments made by the trial court in its oral decision. Thus, the Department argues that it was error for the court to enter the written finding of fact. We disagree.

The Department fails to cite any authority to support the claim. The law is well established that an appellate court need not decide a claim that is not supported by citation to authority. Transamerica Ins. Group v. United Pac. Ins. Co., 92 Wash.2d 21, 29, 593 P.2d 156 (1979). In any event, the Department relies upon comments made by the court in its oral decision. Error cannot be predicated on the oral decision of the trial court. Jones v. Nat'l Bank of Commerce of Seattle, 66 Wash.2d 341, 344, 402 P.2d 673 (1965); Johnson v. Whitman, 1 Wash.App. 540, 546, 463 P.2d 207 (1969) (oral decision of the trial court which is inconsistent with written findings and conclusions cannot be used to impeach them). In such cases, appellate review is limited solely to determining whether the trial court's findings of fact are supported by substantial evidence. Jane Doe v. Boeing Co., 121 Wash.2d 8, 18, 846 P.2d 531 (1993). As stated in Nordstrom Credit v. Department of Revenue, 120 Wash.2d 935, 939-40, 845 P.2d 1331 (1993):

On appeal, the court reviews solely whether the trial court's findings of fact are supported by substantial evidence and, if so, whether the findings support the trial court's conclusions of law. E.g., Willener v. Sweeting, 107 Wash.2d 388, 393, 730 P.2d 45 (1986). The party challenging a finding of fact bears the burden of demonstrating the finding is not supported by substantial evidence. Grein v. Cavano, 61 Wash.2d 498, 507, 379 P.2d 209 (1963).

In this case, there was substantial evidence to support the trial court's finding of fact. Trooper Ginnard testified on cross examination that he told Mairs that she would probably lose her license if she refused to submit to the blood test. Trooper Ginnard testified that he read the implied consent warnings in the language of the statute on at least four occasions, but that Mairs expressed a lack of understanding of the warnings and that he then attempted to clarify the information by stating that her license would "probably" be suspended. Although the trooper later testified on redirect that he did not recall the exact words used to explain the specific implied consent warning to Mairs, "an appellate court will not substitute its judgment for that of the trial court even though it might have resolved the factual dispute differently." Beeson v. Atlantic Richfield Co., 88 Wash.2d 499, 503, 563 P.2d 822 (1977). Since substantial evidence in the record supports the challenged finding of fact, the only remaining question is whether the finding, in turn, supports the trial court's conclusion that the warning given by Trooper Ginnard was confusing and misstated the law. See, Department of Licensing v. Sheeks, 47 Wash.App. 65, 68, 734 P.2d 24, review denied, 108 Wash.2d 1021 (1987).

"If the information conveyed confuses the driver about his rights under the statute, the driver may claim that he had no reasonable opportunity to refuse." Ghaffari v. Department of Licensing, 62 Wash.App. 870, 877, 816 P.2d 66 (1991), review denied, 118 Wash.2d 1019, 827 P.2d 1012 (1992); Keefe v. Department of Licensing, 46 Wash.App. 627, 632, 731 P.2d 1161 (1987) ("The underlying purpose of the implied consent statute is to provide the driver the opportunity to make an intelligent decision as to whether to exercise the statutory right of refusal").

The warning in this case was inaccurate because it implied that Mairs might not have her license revoked even though she refused to submit to a blood test. See Cooper v. Department of Licensing, 61 Wash.App. 525, 527, 810 P.2d 1385 (1991) ("In Washington, if a driver refuses to take a breath test after proper warning, it is an absolute certainty that he will lose his license for a minimum of 1 year. RCW 46.20.311(2)(d)"); Burnett v. Department of Licensing, 66 Wash.App. 253, 259, 832 P.2d 1321 (1992) (the warnings of the implied consent law "clearly imply that upon refusal to take a breath test, the driver will be left without any driver's license for some period of time"). In addition, the advice was prejudicial because it encouraged Mairs not to take the blood test. See, Cooper v. Department of Licensing, 61 Wash.App. at 528, 810 P.2d 1385.

The key facts in this case are similar to the facts in Cooper. In Cooper, a driver arrested for DWI was advised by the arresting officer that if he refused to take a breath test, his driver's license would be revoked "probably for at least a year". Cooper v. Department of Licensing, 61 Wash.App. at 528, 810 P.2d 1385. The driver appealed the subsequent revocation of his driver's license. On appeal, the court held that the inaccurate warning prevented the allegedly intoxicated driver from making a knowing and intelligent decision regarding whether to take the breath alcohol test and reversed the decision of the Department of Licensing revoking his driver's license. Cooper v. Department of Licensing, 61 Wash.App. at 528-29, 810 P.2d 1385. Similar...