State v. Avery, 23643-5-II.

Decision Date22 November 2000
Docket NumberNo. 23643-5-II.,23643-5-II.
CourtWashington Court of Appeals
PartiesSTATE of Washington, Respondent, v. Christopher Charles AVERY, Appellant.

Alan C. Seago, Tacoma, for Appellant.

Hugh Kirk Birgenheier, Pierce Co. Deputy Pros. Atty., Tacoma, for Respondent.


Christopher Avery appeals his convictions of vehicular homicide and failure to remain at the scene of an injury accident. He challenges the trial court's denial of his motion to suppress blood test results, arguing that the police illegally drew his blood without first advising him of the "implied consent" warnings set forth in RCW 46.20.308. We find that the officers lacked reasonable grounds to believe Avery had been driving under the influence of alcohol and, therefore, the warnings were not necessary. Thus, we affirm.


In June 1997, at approximately 6 a.m., Avery's automobile drifted toward the curb of a Tacoma street and struck pedestrian Darryl Jacobson, who died as a result of his injuries. Immediately afterwards, Avery sped away from the scene.

A witness followed Avery and observed him speeding and running traffic lights. Avery eventually stopped and police officers Lowry and Larkin arrived shortly thereafter. They removed him from his vehicle and read him his Miranda2 warnings.

Avery told the officers that he had consumed a couple of drinks at 2 a.m., that he had swerved to avoid another car, and that the other car had struck his vehicle. The officers noticed that Avery's car had a broken turn signal lens, that threads of clothing were imbedded in the broken windshield, and that the radio antenna was bent.

Both officers smelled intoxicants on Avery's breath but neither officer noticed any other signs of intoxication. They did not believe that Avery was under the influence of intoxicants or that there was probable cause to arrest him for vehicular homicide. The officers did arrest Avery for failure to remain at an injury accident.

At the police substation, Officer Skola and Sergeant Strickland, both experts in recognizing persons under the influence of intoxicants, interviewed Avery. According to their testimony, neither officer detected the odor of intoxicants. But Skola's written report notes that Avery had a faint odor of intoxicants and a slight impairment. Skola also noted that Avery's attitude was cooperative, his coordination was good, his clothes were orderly, his eyes and face were normal, and his speech was good.

Officers observed Avery falling asleep on several occasions but Avery's father told them that Avery held two jobs and was extremely tired. Both Skola and Strickland knew that the victim had died but neither officer believed that they had probable cause to arrest Avery for vehicular homicide and he was not then arrested for that offense. But Sergeant Sheehan, who was also at the substation, believed Avery was possibly intoxicated.

Strickland asked Avery if he would submit to a voluntary blood test to determine his blood alcohol level. Avery consented. The officers readvised Avery of his Miranda rights and his right to refuse the blood test. They also had him read and sign a voluntary consent form; the form did not contain the implied consent warnings. After a technician drew the blood, Avery was released.

Avery's blood sample indicated a blood alcohol level of .17g/100 mL. With this information the State charged Avery with vehicular homicide, RCW 46.61.520, and failure to remain at an injury accident, RCW 46.52.020(1).

Avery moved to suppress the results of the blood test, arguing that the officers had failed to give him the implied consent warnings required under RCW 46.20.308 before taking his blood. The trial court denied the motion, finding that the implied consent statute, including the duty to provide the warnings, is not triggered unless the suspect is under arrest for an alcohol-related driving offense.


Avery argues that the trial court erred in refusing to suppress the blood test results because, under the implied consent statute, RCW 46.20.308, the arresting officers had reasonable grounds to believe he had been driving while under the influence of alcohol. Thus, he contends, the officers had the duty to inform him of his rights under that statute. Avery also contends the police impermissibly performed a blood, rather than a breath, test.

The State argues, and the trial court agreed, that the implied consent warnings were not required because Avery had not been arrested for an alcohol-related offense. The State also asserts that a suspect may voluntarily consent to testing outside the implied consent statutory scheme.

I. Implied Consent StatuteRCW 46.20.308

We conduct a de novo review of the trial court's application of RCW 46.20.308. State v. Azpitarte, 140 Wash.2d 138, 140-41, 995 P.2d 31 (2000). When interpreting a statute, we strive to ascertain and give effect to the legislature's intent. State v. Sweet, 138 Wash.2d 466, 477-78, 980 P.2d 1223 (1999). If the language of the statute is unambiguous, we rely solely on the statutory language. Azpitarte, 140 Wash.2d at 142, 995 P.2d 31. See also W. Petroleum Importers, Inc. v. Friedt, 127 Wash.2d 420, 423-24, 899 P.2d 792 (1995)

(noting general statutory construction rules apply to initiatives and meaning is construed as "average informed lay voter" would read language). A statute's failure to define one of its terms does not make the statute ambiguous; absent any contrary legislative intent, we give words their "plain and ordinary meaning." Ravenscroft v. Washington Water Power Co., 136 Wash.2d 911, 920-21, 969 P.2d 75 (1998).

The people adopted the implied consent statute by initiative in the 1968 general election. Subsequently, the legislature has amended it numerous times but the language at issue in this case has not changed significantly since 1968.3 At the time of Avery's arrest in June 1997, the implied consent statute stated, in relevant part:

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 test or tests of his or her breath or blood for the purpose of determining the alcohol concentration or presence of any drug in his or her breath or 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 or any drug or was in violation of RCW 46.61.503 [driving under 21 consuming alcohol].

RCW 46.20.308(1) (1996).

Thus, under the statute, a driver arrested by an officer who has reasonable grounds to believe the driver is under the influence of intoxicants is deemed to have consented to a breath or blood test to determine the driver's blood alcohol level. Medcalf v. Dep't of Licensing, 133 Wash.2d 290, 298, 944 P.2d 1014 (1997). Except under circumstances specified in RCW 46.20.308(3) that are inapplicable here, a driver may revoke that consent and refuse to take the test. RCW 46.20.308(2) requires the officer to "inform the person of his or her right to refuse the breath or blood test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506." The officer also must warn the driver that driving privileges will be revoked if the driver refuses to take the test or if the test shows an illegal concentration of alcohol and warn the driver that the State may use refusal of the test as evidence in a criminal trial. RCW 46.20.308(2)(a), (b), and (c).4 One of the statute's purposes is to provide the driver with the "opportunity to make a knowing and intelligent decision whether to submit to an evidentiary breath test."5State v. Whitman County Dist. Court, 105 Wash.2d 278, 282, 714 P.2d 1183 (1986). See also State v. Trevino, 127 Wash.2d 735, 747, 903 P.2d 447 (1995)


To trigger the implied consent statute, there must be both a valid arrest and reasonable grounds for the arresting officer to believe that the driver was driving under the influence at the time of the arrest. Thus, where the State has not yet arrested a driver, it need not give the driver the implied consent warnings and the driver may voluntarily consent to a blood or breath test. State v. Rivard, 131 Wash.2d 63, 77, 929 P.2d 413 (1997); State v. Wetherell, 82 Wash.2d 865, 869, 514 P.2d 1069 (1973).

Where the statute does apply, the test should be of the breath only unless, because of the suspect's physical condition or the lack of equipment, it is not possible to give the breath test. Further, if the officer has reasonable grounds to believe the driver was under the influence of drugs, a blood test is permissible. RCW 46.20.308(3).6

II. Voluntary Consent Without Warnings

The State argues, in part, that officers are not required to comply with the implied consent statute when a suspect voluntarily consents to a blood test. But as the court stated more than 20 years ago:

[C]onsent is no longer an issue in this state, since all drivers have consented in advance to testing for the presence of alcohol. The issue becomes one of deciding whether the officer complied with the statute in such a fashion as to adequately apprise the driver of his right to withdraw his consent.

State v. Krieg, 7 Wash.App. 20, 23, 497 P.2d 621 (1972).

The Washington Supreme Court has not squarely addressed whether a driver may give actual consent outside the strictures of the implied consent statute. But because the driver has already consented to a test by virtue of the implied consent statute, additional consent is irrelevant where the statute is triggered. See Krieg, 7 Wash.App. at 23,

497 P.2d 621. Further, an official request for consent without the warnings would deprive the driver of the opportunity to make an informed decision as to whether to revoke his or her consent....

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