Roethle v. State, Dept. of Licensing

• Decision Date: 07 October 1986
• Docket Number: No. 7254-1-III,7254-1-III
• Citation: 45 Wn.App. 607,726 P.2d 1001
• Parties: Mary J. ROETHLE, Respondent, v. STATE of Washington, DEPARTMENT OF LICENSING, Appellant.
• Court: Washington Court of Appeals

Page 607

45 Wn.App. 607

726 P.2d 1001

Mary J. ROETHLE, Respondent, v. STATE of Washington, DEPARTMENT OF LICENSING, Appellant.

No. 7254-1-III.

Court of Appeals of Washington,

Division 3, Panel One.

Oct. 7, 1986.

Rehearing Denied Nov. 7, 1986.

Kenneth O. Eikenberry, Atty. Gen., James R. Silva, Asst. Atty. Gen., Olympia, for appellant.

John C. Cooney, Spokane, for respondent.

McINTURFF, Judge.

This is an appeal from a trial de novo in Spokane County Superior Court concerning the revocation by the Department of Licensing (Department) of Mary Roethle's driver's license for refusing to consent to a Breathalyzer test. The Superior Court reversed the Department's decision to revoke Ms. Roethle's license; the Department appeals, contending the officer did not have to inform Ms. Roethle that her refusal to take the Breathalyzer test would result in a revocation of her driver's license for 1 year. We agree and reverse.

The basic facts are undisputed. On May 20, 1984, Ms. Roethle was arrested for driving while under the influence. About an hour after the arrest Spokane police officer Ronald G. Vanos read the following warning to Ms. Roethle:

Warning. You are under arrest for driving a motor vehicle while under the influence of intoxicating liquor. Further, you are now being asked to submit to a chemical test of your breath to determine the alcoholic content of your blood. 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 shall be used against you in a subsequent trial.

The officer informed Ms. Roethle two other times regarding her implied consent rights but each time she refused to take the Breathalyzer test.

Following the officer's submission of the sworn report to the Department, the Department revoked Ms. Roethle's driver's license for 1 year. Ms. Roethle requested and was granted an administrative hearing, which affirmed the Department's revocation order. She then sought de novo review in Superior Court. On February 25, 1985, the court entered findings of fact and conclusions of law sustaining the Department's 1-year revocation of Ms. Roethle's driver's license. Following her motion for relief from judgment, however, the court reversed the Department's decision to revoke her license because the officer improperly advised Ms. Roethle of the "consequences of refusing to submit to a chemical test of breath."

The Department's sole contention is that the court erred in reversing the revocation of Ms. Roethle's driver's license. It claims RCW 46.20.308 does not require that the officer warn the arrested driver of the specific length of revocation or denial of the driver's license.

Former RCW 46.20.308 provided:

(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a chemical test or tests of his or her breath or blood for the purpose of determining the alcoholic content of his or her blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor.

(2) ... The officer shall warn the driver that (a) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test, and (b) that his or her refusal to take the test may be used against him or her in a subsequent criminal trial.

The underlying purpose of the implied consent statute is to provide the vehicle operator the opportunity to make an intelligent decision whether to exercise the statutory right of refusal. State v. Whitman Cy. Dist. Ct., 105 Wash.2d 278, 281, 714 P.2d 1183 (1986); Connolly v. Department of Motor Vehicles, 79 Wash.2d 500, 504, 487 P.2d 1050 (1971); see also Welch v. Department of Motor Vehicles, 13 Wash.App. 591, 592, 536 P.2d 172 (1975) (warning the driver "could" lose license if the Breathalyzer test is refused did not provide defendant opportunity to...