State v. Carranza

• Decision Date: 20 September 1979
• Docket Number: No. 2841-III-1,2841-III-1
• Citation: 24 Wn.App. 311,600 P.2d 701
• Parties: STATE of Washington, Respondent, v. Santiago CARRANZA, Appellant.
• Court: Washington Court of Appeals

Page 311

24 Wn.App. 311

600 P.2d 701

STATE of Washington, Respondent, v. Santiago CARRANZA, Appellant.

No. 2841-III-1.

Court of Appeals of Washington, Division 3, Panel Three.

Sept. 20, 1979.

Rickey C. Kimbrough, Kimbrough, Everett & Crawford, Grandview, for appellant.

Jeffrey C. Sullivan, Pros. Atty., David W. Waterbury, Deputy Pros. Atty., Yakima, for respondent.

MUNSON, Judge.

Santiago Carranza was charged with two counts of negligent homicide. He waived his right to a jury trial; the trial judge found him guilty on both counts. Carranza appeals the admission at trial of (1) a blood test taken after his arrest without implied consent warnings, and (2) his refusal to take a breathalyzer test.

On the evening of January 19, 1978, Carranza's car crossed the centerline and struck a 1975 Volkswagon carrying Ralph and Marilyn Wilson. The Wilsons were dead by the time police arrived. Carranza was taken to the Toppenish police station where he refused to take a breathalyzer test. He was then taken to the local hospital where a blood sample was taken. Trooper Cortez, the arresting officer, did not advise Carranza of the implied consent warnings (specifically, his right to have additional tests). Both Trooper Cortez and Carranza testified at trial that he had refused to take the breathalyzer test. Another officer testified at trial that the blood test reading was .24. No objection was taken to the admission of the blood test.

Carranza contends that even though no objection was taken to the admission of evidence of the blood tests at trial, the error violated Carranza's constitutional rights under the Fifth and the Fourteenth Amendments. He argues that the blood test should have been excluded because it was unlawfully taken without his consent and without the necessary warning that he had the right to refuse or had the right to have additional tests. We find no merit to this contention.

Initiative 242 was passed by popular vote in November 1968 and codified as RCW 46.20.308(1). ¹ According to the statute, a driver was deemed to have given consent to a breathalyzer test if arrested by the police for driving while intoxicated. However, the driver had the right to refuse with the consequence that his driver's license would be revoked. Subsequent to 1968, numerous cases have held that the police officer must adequately apprise the driver of his right to refuse the test and to have additional tests taken; the officer has the burden of showing the statutory warnings were given. State v. Wetherell, 82 Wash.2d 865, 514 P.2d 1069 (1973); State v. Richardson, 81 Wash.2d 111, 499 P.2d 1264 (1972); State v. Krieg, 7 Wash.App. 20, 497 P.2d 621 (1972). If the proper warning was not given, the evidence could be excluded. State v. Krieg, supra. Carranza relies strongly on the above cases for his contention that the blood test should have been excluded.

In 1975 the legislature added a proviso ² which states, in part: "a breath or blood test may be administered without the consent of the individual" in a negligent homicide case. RCW 46.20.308(1). The proviso is a narrow exception to the preceding section of the prior 1968 act. A person under arrest for negligent homicide has no right to refuse a breath or blood test. The statutory language provides no alternatives to refusal, but clearly states a test may be administered without consent. It would, therefore, be a futile act for an officer to give the driver his right-to-refuse warnings and then proceed to have the test administered after the driver had refused. The procedure anticipated by the added statutory provision has been sanctioned in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Cf. State v. Moore, 79 Wash.2d 51, 483 P.2d 630 (1971). A blood sample is physical rather than testimonial evidence and therefore does not come within the protection of the Fifth Amendment. Schmerber v. California, supra at 86 S.Ct. 1831-32.

Carranza argues that the proviso merely relates to the issue of the consent to take a test and does not excuse other required notification of the right to have additional tests. We disagree. State v. Krieg, supra, interpreting that statute as it existed prior to the 1975 amendment, held that the failure to inform a defendant of his rights under RCW 46.20.308(1) results in the exclusion of the results of a breathalyzer test subsequently administered in a prosecution for negligent homicide. The 1975 amendment took away any right the defendant might have to refuse a blood or breath test if he was arrested for negligent homicide or arrested for a violation of RCW 46.61.506 (driving while under the influence) after an accident has occurred and there is a reasonable likelihood that another person might "die as a result of injuries sustained in the accident."

Carranza next contends that he was denied any realistic opportunity to confront and challenge the State's blood test evidence because he was not advised of his right to additional tests by a person of his choosing. We disagree. Carranza was given his Miranda rights and was told he had the right to counsel. Although it may be preferable to tell a driver who has been arrested for negligent homicide that he has the right to have additional tests, the lack of such information does not rise to the level of a constitutional denial of due process. Carranza sites no authority for such an argument. ³

A driver whose license will be automatically revoked if he refuses to take the breath test is entitled to implied consent warnings, including his right to have additional tests. State v. Richardson,supra; Connolly v. Department of Motor Vehicles, 79 Wash.2d 500, 487 P.2d 1050 (1971); Blaine v. Suess, 22 Wash.App. 809, 811, 592 P.2d 662 (1979). As noted above, the implied consent warnings apply when a driver has the right of refusal. As stated in Richardson, 81 Wash.2d at 114, 499 P.2d at 1266, it was the apparent intent of the statute that "the person arrested be advised of his right to have additional tests . . . In order that he might be able to exercise an intelligent and informed judgment in deciding whether to submit or refuse to submit to a test." (Italics ours.) Here, Carranza had no right to refuse. As noted in Nowell v. Department of Motor Vehicles, 83 Wash.2d 121, 124, 516 P.2d 205, 206-07 (1973), the implied consent law was enacted as a police power measure in the interest of the general welfare and safety:

To carry out the intended objective, . . . the enactment has a threefold purpose: (1) to discourage individuals from driving an automobile while under the influence of intoxicants, (2) to remove the driving privileges from those individuals disposed to driving while inebriated, and (3) to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication.

To further the objective, the Implied consent enactment provided a civil administrative proceeding for revoking driving privileges in appropriate instances, separate and distinct from the criminal proceedings which might ensue following the arrest of an offending motorist.

(Italics ours.)

Thus, we find Carranza had no constitutional right to notice that he had the right to additional tests. To exclude the State's evidence in a negligent homicide case, based upon such an argument, would thwart the purpose of the statutory amendment of 1975. Failure to object waived the issue. The State rightfully contends Carranza had the opportunity to run additional tests on the blood sample the State took and retained until trial; he did not utilize this opportunity.

Carranza also contends the admission of his refusal to take the breathalyzer was prejudicial, relying on State v. Parker, 16 Wash.App. 632, 558 P.2d 1361 (1976). The facts at trial are distinguishable. In Parker, the State introduced the evidence of refusal over the defendant's objection in a jury trial; the jury was further instructed that it might infer guilt from such refusal and the State was allowed to argue the refusal was an admission of guilt. The Parker court found it significant that the jury may have been influenced, particularly where the refusal was emphasized by a specific instruction. State v. Parker, supra at 636. Here, however, the case was tried before a judge without a jury, and both Carranza and Officer Cortez testified to his refusal. Carranza concedes that under the statute no consent was necessary.

Carranza contends, pro se, that he was denied a fair trial because his attorney was incompetent for failing to make objections to constitutional issues and because he was not given Miranda warnings at the time of his arrest. We find no merit to either contention. A review of the entire record reflects Carranza was afforded an effective representation and a fair and impartial trial. State v. Adams, 91 Wash.2d 86, 586 P.2d 1168 (1978); State v. Cobb, 22 Wash.App. 221, 589 P.2d 297 (1978). The evidence was undisputed at trial that Officer Cortez did give Carranza his Miranda warnings. In addition, the State introduced no statements made by Carranza while he was in custody of a self-incriminating nature which would give rise to the procedural safeguards of Miranda. State v. Woods, 3 Wash.App. 691, 477 P.2d 182 (1970). We find no error.

Judgment affirmed.

ROE, J., concurs.

McINTURFF, Judge (dissenting).

I respectfully disagree with the majority's conclusion that because a driver arrested for negligent homicide has no right to refuse to take a chemical test to determine the alcoholic content of his blood, police officers consequently have no duty to advise him of his right to have additional tests taken under RCW 46.20.308(1). ¹

When a chemical test to determine blood alcohol content is made and subsequently introduced in a criminal trial where intoxication is the foundation for the charge, the issue of the accuracy of the testing procedures immediately arises. The purpose underlying the defendant's right to have...