Schoultz v. Department of Motor Vehicles

• Decision Date: 09 February 1978
• Docket Number: No. 44877,44877
• Citation: 89 Wn.2d 664,574 P.2d 1167
• Parties: Francis William SCHOULTZ, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, State of Washington, Respondent.
• Court: Washington Supreme Court

Page 664

89 Wn.2d 664

574 P.2d 1167

Francis William SCHOULTZ, Appellant, v. DEPARTMENT OF MOTOR VEHICLES, State of Washington, Respondent.

No. 44877.

Supreme Court of Washington, En Banc.

Feb. 9, 1978.

Edward John Crowley, Jr., Richard C. Agman, Spokane, for appellant.

Slade Gorton, Atty. Gen., W. Howard Fischer, Asst. Atty. Gen., Olympia, for respondent.

HOROWITZ, Associate Justice.

This is an appeal from a trial de novo in the Superior Court of Spokane County of the Department of Motor Vehicle's revocation of appellant Schoultz's driver's license. Appellant's license was revoked pursuant to the Implied Consent Law, RCW 46.20.308, for refusal to submit to a chemical test to determine the alcohol content of his blood after he was arrested for driving while under the influence of intoxicating liquor. The trial court affirmed the revocation. The appeal was filed in the Court of Appeals and certified to this court. We affirm.

Appellant Schoultz was stopped by State Patrol Trooper Lofquist for speeding at approximately 2 a. m. on the morning of February 20, 1975. The officer noticed certain physical signs characteristic of intoxication in appellant and administered routine physical tests to determine the likelihood of intoxication. He then arrested appellant for driving while under the influence of intoxicating liquor, and advised him of his Miranda rights. There is no challenge to the propriety of his arrest.

After a brief wait for a tow truck to remove appellant's truck, the officer drove appellant to the State Patrol District Office. He told appellant he would be asked to take a breathalyzer test at the office, but did not go on to explain appellant's rights and obligations under the Implied Consent Law at that time. When they arrived at the State Patrol Office appellant refused to get out of the car, protesting he would not take a breathalyzer test.

Trooper Lofquist, fearing he might have a security problem, decided to drive appellant to the county jail, where the facilities offer greater security. At the jail appellant again refused to get out of the car and had to be forcibly removed. In the breathalyzer room of the jail, appellant was advised once more of his Miranda rights. He asked to call his lawyer in Olympia. He was allowed to do so, but was unable to reach him.

After appellant's attempt to call his lawyer, the officer told him that an attorney was not needed for a breathalyzer test because it is only the taking of physical evidence. He fully informed appellant of his statutory rights and obligations under the Implied Consent Law and asked appellant to take the test. Appellant refused, insisting he wanted to talk to his lawyer. Trooper Lofquist read the implied consent warnings to appellant twice and explained the consequences of refusal four times. Appellant nonetheless refused to submit to the test. The officer noted 2:57 a. m. as the time of refusal on his report.

Trooper Lofquist filled out his report of refusal either that night or on February 24, immediately before executing the document in the presence of a notary. The notary administered an oath, although the officer could not recall its text at trial. The oath did include at least a swearing that the signature on the report was his own. The report was submitted to the Department of Motor Vehicles, which revoked appellant's license for six months.

This case raises three issues regarding the requirements of the Implied Consent Law. That law provides that any person who operates a motor vehicle on Washington highways is deemed to have given consent to a chemical test to determine the alcohol content of his blood. If a driver is arrested by an officer who has reasonable grounds to believe he was driving while under the influence of intoxicating liquor, but refuses to take a breathalyzer test after being informed of his right to refuse and the consequences of refusal, the Department of Motor Vehicles (the Department) must revoke his license for six months. The questions raised here are: (1) when the arresting officer must first explain the driver's statutory rights and obligations; (2) whether the failure of the officer to make this explanation at a certain time will, as a matter of law, so confuse the driver as to render him incapable of making an intelligent decision whether to submit or refuse; and (3) whether a report of the driver's refusal signed and sworn to before a notary is a sworn report sufficient to give the Department jurisdiction under the statute.

Appellant first contends Trooper Lofquist was under a statutory duty to explain the consequences of refusal when he first told appellant he would be asked to take the breathalyzer test. Appellant argues the officer's failure to do so waived the state's right to give the statutory warnings and make a second request, because it deprived appellant of the opportunity to make an intelligent judgment.

The defect in this argument is that there is no demonstrated relationship between the occurrences in this case and any deprivation of the opportunity to knowingly and intelligently decide whether to take the test.

RCW 46.20.308(1) requires:

(The arresting) officer shall inform the person of his right to refuse the test, and of his right to have additional tests administered by any qualified person of his choosing as provided in RCW 46.61.506. The officer shall warn the driver that his privilege to drive will be revoked or denied if he refuses to submit to the test.

Under RCW 46.20.308(3), only a refusal to take the test made after the driver has been so informed may form the basis for revocation of a license. The intent of the requirement for informing the driver of his statutory rights and obligations is to provide the opportunity for the driver to knowingly and intelligently make his decision. See Dep't of Motor Vehicles v. McElwain, 80 Wash.2d 624, 628, 496 P.2d 963 (1972); Connolly v. Dep't of Motor Vehicles, 79 Wash.2d 500, 504, 487 P.2d 1050 (1971).

The facts of this case do not suggest that appellant was deprived of such an opportunity by Trooper Lofquist's failure to fully inform appellant of his statutory rights and obligations when he first mentioned the breathalyzer test. Indeed, the officer went to great lengths to explain the rights and warnings to appellant under the appropriate conditions of a discussion in the test room itself. The interval between the first mention of the test at the time of the arrest and the discussion in the breathalyzer room was not unduly long, especially in light of appellant's recalcitrant behavior in refusing to get out of the patrol car. Thus, the facts here demonstrate no inherent prejudice in the procedure followed by Trooper Lofquist.

Appellant's argument that the Trooper's behavior waived the right of the state to give the warnings and make a second request is an unwarranted interpretation of the language of the statute. The statute does not on its face forbid repetition of a request to take the test where the first request is unaccompanied by the required explanation. It does provide that only a refusal made following a full statutory explanation may form the basis for a license revocation. 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. We decline to read into the statutory language a further requirement that the explanation accompany the first request. Cf. Dep't of Motor Vehicles v. McElwain, supra, 80 Wash.2d at 628, 496 P.2d 963. The Department contends Trooper Lofquist's mention of the test was not a request, but served only to advise appellant that he would be asked to take the test. We hold that, even assuming it was an actual request to take the test, the statute does not forbid a renewed request accompanied by the explanation, especially where, as here, the Trooper's conduct was reasonable and nonprejudicial.

Appellant next contends that, as a matter of law, a person not advised of the implied consent warnings when first requested to take the breathalyzer test is confused as to his rights. He reasons that Officer Lofquist's failure to...