Pattison v. STATE DEPT. OF LICENSING

• Decision Date: 22 July 2002
• Docket Number: No. 49727-8-I, No. 49751-1-I., No. 49750-2-I
• Citation: 112 Wash. App. 670,50 P.3d 295
• Court: Washington Court of Appeals
• Parties: Kimberlee A. PATTISON, Respondent, v. STATE of Washington DEPARTMENT OF LICENSING, Appellant. Zachary A. Cornfoot, Respondent, v. State of Washington Department of Licensing, Appellant. Kelly D. Norman, Respondent, v. State of Washington Department of Licensing, Appellant.

50 P.3d 295

112 Wash. App. 670

Kimberlee A. PATTISON, Respondent, v. STATE of Washington DEPARTMENT OF LICENSING, Appellant.

Zachary A. Cornfoot, Respondent, v. State of Washington Department of Licensing, Appellant.

Kelly D. Norman, Respondent, v. State of Washington Department of Licensing, Appellant.

Nos. 49727-8-I, 49750-2-I, 49751-1-I.

Court of Appeals of Washington, Division 1.

July 22, 2002.

Albert A. Rinaldi, Seattle, for Appellants.

Gwendolyn Howard, Asst. Attorney General, Seattle, Sharon S. Eckholm, Asst. Attorney General, Olympia, for Respondents.

BECKER, C.J.

At issue is an implied consent warning form used by the Washington State Patrol. The form contains all the statutorily required warnings, and additional information about what will happen if the driver is in violation of the criminal statutes that prohibit driving while under the influence. The State Patrol warnings are neither inaccurate nor misleading. The superior court's ruling to the contrary is reversed. We remand for reinstatement of the administrative orders revoking or suspending the licenses of the respondents.

This appeal involves the consolidated cases of three drivers. Each driver, on separate occasions, was arrested on suspicion of driving under the influence. Each driver was over the age of 21 at the time of arrest. In each case, an officer read the driver the implied consent warnings from the Washington State Patrol warning form. Respondent Kimberlee Pattison refused to take a breath test. Respondents Kelly Norman and Zachary Cornfoot each submitted to a breath test and provided samples that were over the legal limit of 0.08.

The Department of Licensing revoked or suspended each driver's license upon receiving the breath test reports. Each driver requested an administrative hearing on the revocation or suspension. In each case the hearing officer sustained the revocation or suspension. Each driver appealed to King County Superior Court, where the cases were consolidated.

The superior court reversed the administrative orders after finding that the warnings misstated the law. This court granted the Department of Licensing's request for discretionary review.

This court stands in the same position as the trial court in reviewing the Department of Licensing's revocation decisions. Department of Licensing v. Grewal, 108 Wash.App. 815, 819, 33 P.3d 94 (2001). The validity of implied consent warnings is a question of law subject to de novo review. Moffitt v. City of Bellevue, 87 Wash.App. 144, 146, 940 P.2d 695 (1997).

Under Washington's implied consent statute, RCW 46.20.308, any person driving a car in this state is deemed to have consented to a breath or blood test to determine the alcohol concentration in his or her system upon being arrested for driving or physically controlling a car while under the influence of alcohol. RCW 46.20.308(1). The statute requires the arresting officer to give specific warnings to the driver as to the consequences of the breath or blood test.

The purpose for the warning requirement is to ensure that the driver is afforded "the opportunity to make a knowing and intelligent decision whether to take the Breathalyzer test." Gonzales v. Department of Licensing, 112 Wash.2d 890, 897, 774 P.2d 1187 (1989). There is no requirement that the warnings exactly match the statutory language. A warning is neither inaccurate nor misleading as long as "no different meaning is implied or conveyed". Town of Clyde Hill v. Rodriguez, 65 Wash.App. 778, 785, 831 P.2d 149 (1992). An officer may provide additional information in the warnings, provided that the information does not affect the driver's ability to make a knowing and informed decision. Moffitt, 87 Wash.App. at 148, 940 P.2d 695.

According to the statute, an officer must inform the driver of his or her right to refuse the test and to have additional tests administered by any qualified person of his or her choosing. RCW 46.20.308(2). Further, the officer must warn the driver that

(a) His or her license, permit, or privilege to drive will be revoked or denied if he or she refuses to submit to the test;

(b) His or her license, permit, or privilege to drive will be suspended, revoked, or denied if the test is administered and the test indicates the alcohol concentration of the person's breath or blood is 0.08 or more, in the case of a person age twenty-one or over, or in violation of RCW 46.61.502, 46.61.503, or 46.61.504 in the case of a person under age twenty-one; and

(c) His or her refusal to take the test may be used in a criminal trial.

RCW 46.20.308(2).

The State Patrol developed an implied consent warning form based on the statute. In so doing, the State Patrol modified the statutory language. The State Patrol form reads:

You are now advised that you have the right to refuse this breath test; that if you refuse, your license, permit, or privilege to drive will be revoked or denied by the Department of Licensing; and that you have the right to additional tests administered by any qualified person of your choosing and that your refusal to take the test may be used in a criminal trial; and

You are further advised that your license, permit, or privilege to drive will be suspended, revoked, or denied if the test is administered and the test indicates the alcohol concentration of your breath is 0.08 or more, if you are age 21 or over, or 0.02 or more if you are under age 21; or if you are in violation of RCW 46.61.502, 46.61.503 or 46.61.504.

The State Patrol warning omits none of the statutorily required information. It adds a specific reference to the 0.02 threshold now in effect for drivers under age 21, as provided by RCW 46.61.503. And the last sentence of the State Patrol form advises every person, regardless of age, that "your license, permit, or privilege to drive will be suspended, revoked, or...