State Dept. of Licensing v. Lax

• Court: Washington Court of Appeals
• Writing for the Court: ALEXANDER; HOUGHTON; SEINFELD; SEINFELD
• Citation: State Dept. of Licensing v. Lax, 871 P.2d 1098, 74 Wn.App. 7 (Wash. App. 1994)
• Decision Date: 29 April 1994
• Docket Number: No. 15974-1-II
• Parties: STATE of Washington DEPARTMENT OF LICENSING, Respondent, v. Ralph W. LAX, Appellant.

Page 7

74 Wn.App. 7

871 P.2d 1098

STATE of Washington DEPARTMENT OF LICENSING, Respondent, v. Ralph W. LAX, Appellant.

No. 15974-1-II.

Court of Appeals of Washington Division 2.

April 29, 1994.

D. Geral Barnhart, Clallam-Jefferson Public Defender, Port Townsend, for appellant.

John S. Barnes, Asst. Atty. Gen., Olympia, for respondent.

ALEXANDER, Judge.

Ralph W. Lax appeals an order of the Jefferson County Superior Court affirming the Department of Licensing's (Department) decision to revoke his motor vehicle driver's license. Lax contends that the trial court erred in concluding that he refused to submit to a blood test. We reverse.

The pertinent facts of this case are undisputed. ¹ In the early morning hours of January 1, 1991, Ralph W. Lax was arrested by Washington State Patrol Trooper Kenneth J. Przygocki for the offense of driving while under the influence of intoxicating liquor. Prior to Lax's arrest, Przygocki had been dispatched to a reported accident on Highway 101 in Jefferson County. When Przygocki arrived at the scene, he discovered Lax lying in the northbound lane of traffic. Further up the road, Lax's car, which had a flat tire, was partially blocking a lane of traffic. Trooper Przygocki noticed "a very strong odor of alcohol" emanating from Lax's breath, so he administered a field sobriety test. Przygocki concluded that Lax failed the test.

Przygocki then placed Lax in his patrol car and proceeded to the Jefferson County Corrections Facility. En route, Lax began to complain that he was having chest pains, so Przygocki took him to the Jefferson General Hospital. At the hospital, Lax was taken to the emergency room, where hospital personnel attached monitoring equipment to his chest and also administered an EKG test. After receiving permission from the attending hospital personnel, Przygocki read Lax his implied consent warnings in accordance with RCW 46.20.308(2) ² and asked him if he would submit to a blood test. Lax "refused to allow the blood sample to be drawn at that time". ³

Przygocki remained at the hospital in order to determine if Lax would be released. Subsequently, a nurse approached Lax and asked to draw blood from him. Lax refused. Shortly after Lax told the nurse that he would not give her a blood sample, Lax "asked the [t]rooper if he still wanted a blood sample". The trooper responded that because Lax had refused his initial request, he was making no further request. Lax then "volunteered to give blood and a sample was drawn by hospital personnel approximately 12 minutes after the initial refusal". The blood sample was placed in a "sample vial" supplied by the hospital to store and preserve blood samples for subsequent blood alcohol testing. The hospital provided the vial with Lax's blood to Przygocki for evidentiary purposes, and it was used in evidence by the State at Lax's trial in Jefferson County District Court on the charge of driving while under the influence of intoxicating liquor. ⁴

Przygocki completed and signed a report in which he indicated Lax had refused to submit to a blood test. The report was sent to the Department of Licensing. Upon receipt of the report, the Department revoked Lax's driver's license pursuant to 46.20.308(6). ⁵ Lax sought a trial de novo in Jefferson County Superior Court pursuant to RCW 46.20.308(8) and RCW 46.20.334. ⁶ Following trial, the Superior Court sustained the Department's decision to revoke Lax's driving privilege.

I

In support of his argument that his license should not be revoked, Lax contends that although he initially refused to provide a blood sample to Trooper Przygocki, he subsequently agreed to provide a sample and did so. ⁷ His actions, he argues, should not, as a matter of law, be deemed a refusal.

RCW 46.20.308(5) provides:

If, following his or her arrest and receipt of warnings under subsection (2) of this section, the person arrested refuses upon the request of a law enforcement officer to submit to a test or tests of his or her breath or blood, no test shall be given except as authorized under subsection (3) or (4) of this section.

(Italics ours.)

In Currier v. Department of Motor Vehicles, 20 Wash.App. 16, 578 P.2d 1325 (1978), Division One of this court was presented with the issue we face. There, the person arrested for driving while under the influence of intoxicating alcohol, Currier, refused to take a breath test at the Island County Jail after the arresting officer offered him the opportunity to take it. At some later point, following the arresting officer's departure from the jail, Currier apparently changed his mind and requested an opportunity to take a breath test. A deputy sheriff refused his request, telling Currier that "the test had to be administered in the presence of the arresting trooper who had departed 10 to 15 minutes earlier". Currier, 20 Wash.App. at 18, 578 P.2d 1325. Currier appealed the subsequent revocation of his license, contending that "his change of mind and later request to take the test nullified his initial refusal". Currier, 20 Wash.App. at 18, 578 P.2d 1325.

Division One held that "nothing in the statute [RCW 46.20.308] ... require[s] the sheriff to administer the test once there has been a refusal". Currier, at 18, 578 P.2d 1325. Significantly the court held that under the statute even if the sheriff had allowed Currier to take the test, it would not have changed the effect of the initial refusal. Currier, 20 Wash.App. at 18-19, 578 P.2d 1325. Finally, the court noted that the suspect "could not avoid the mandatory license suspension by later rescinding his initial refusal". Currier, 20 Wash.App. at 19, 578 P.2d 1325.

Division One recently reaffirmed the position it took in Currier in Mairs v. Department of Licensing, 70 Wash.App. 541, 854 P.2d 665 (1993). See also Wolf v. Department of Motor Vehicles, 27 Wash.App. 214, 219, 616 P.2d 688 (1980) (reaffirming holding of Currier ). The court noted in Mairs that "[i]t is the refusal to take the blood alcohol test offered by the arresting officer which triggers the revocation of the person's driver's license". 70 Wash.App. at 550, 854 P.2d 665. The court opined that "[a] driver arrested for DWI does not get a second chance". 70 Wash.App. at 550, 854 P.2d 665. In Mairs the arrested person had refused to submit to a blood test at a hospital after being requested to do so by the arresting officer. At some point during her stay at the hospital, Mairs had a blood sample taken by hospital personnel. Division One observed that nothing in the record indicated that "the test conducted by the hospital was performed in accordance with the procedures set forth in the regulations governing blood tests". 70 Wash.App. at 551, 854 P.2d 665. Because the court was unable to determine whether the tests were uniform and accurate, it overturned the trial court's determination that the driver had "effectively complied" with RCW 46.20.308. 70 Wash.App. at 551, 854 P.2d 665.

Lax attempts to distinguish Currier and Mairs by asserting that there were facts present in those cases that are not present here. He points out that in Currier, the arresting officer had already departed and significant time had elapsed since the suspect's initial refusal, and that in Mairs, the blood test that was eventually taken was not taken pursuant to regulatory procedures. Lax asserts that the delay in his case was only 12 minutes, and therefore, there was no danger of the delay prejudicing the result of the test. He makes the additional point that the blood sample was actually taken by hospital personnel, using presumably reliable procedures, and was given to the trooper and used at trial against Lax.

Although there are some differences between the facts in Currier and Mairs and the instant case, we disagree with Lax that a ruling in his favor can be reconciled with the holdings in Currier and Mairs. Those cases appear to establish a bright line rule that once a person has told an officer that he or she refuses to submit to a blood or breath test, no subsequent actions by the suspect can undo the refusal so as to avoid a license revocation. It would be a stretch to interpret those decisions as leaving open the possibility of exceptions to the bright line test.

II

Lax also contends that even if Currier and Mairs cannot be distinguished, we should reject the bright line approach taken by Division One in those cases. We devote the remainder of the opinion to a consideration of that argument.

Two different approaches to this issue have emerged in the decisions of courts in other states. See generally M. Elizabeth Fuller, Comment, Implied Consent Statutes: What is Refusal?, 9 Am.J.Trial Advoc. 423 (1986). Courts in some states have adopted a "flexible" rule that either allows subsequent consent to cure a prior refusal, or deems an initial refusal followed by subsequent consent not to be a legal refusal at all. See, e.g., Pruitt v. Alaska, 825 P.2d 887 (Alaska 1992); Gaunt v. Motor Vehicle Div., 136 Ariz. 424, 666 P.2d 524 (App.1983); Zahtila v. Motor Vehicle Div., 39 Colo.App. 8, 560 P.2d 847 (1977); Larmer v. Florida, 522 So.2d 941 (Fla.Dist.Ct.App.), review denied, 531 So.2d 1352 (Fla.1988); Department of Pub. Safety v. Seay, 206 Ga.App. 71, 424 S.E.2d 301 (1992); Hawaii v. Moore, 62 Haw. 301, 614 P.2d 931 (1980); Smith v. Idaho, 115 Idaho 808, 770 P.2d 817 (1989); Standish v. Department of Rev., 235 Kan. 900, 683 P.2d 1276 (1984); Pickard v. Louisiana, 572 So.2d 1098 (La.Ct.App.1990), writ not considered, 576 So.2d 22 (La.1991); Lund v. Hjelle 224 N.W.2d 552 (N.D.1974); Baldwin v. Oklahoma, 849 P.2d 400 (Okla.1993). These courts generally apply a balancing test that allows for the examination of the facts and circumstances that follow the initial refusal to ascertain whether a subsequent consent to take a blood or breath test will negate or make ineffective the earlier refusal.

On the other hand, courts in other states take the approach that Division...