State v. Franco
| Decision Date | 15 January 1982 |
| Docket Number | No. 46808-7,46808-7 |
| Citation | 96 Wn.2d 816,639 P.2d 1320 |
| Parties | STATE of Washington, Respondent, v. George E. FRANCO, Appellant. |
| Court | Washington Supreme Court |
Shelley Stark, Seattle-King County Public Defender Assn., Seattle, for appellant.
Stephen W. Hayne, Peter Moote, Joseph L. Koplin, Jack Youngberg, Seattle, for amicus curiae.
Norman K. Maleng, King County Prosecutor, Douglas B. Whalley, James M. Roe, Deputy Pros. Attys., Seattle, for respondent.
George Franco appeals from a superior court jury verdict finding him guilty of driving while under the influence of intoxicating liquor (DWI). His appeal raises questions concerning the interpretation of that recently enacted law and its constitutional effect on the implied consent law. We hold the DWI statute sets out alternative methods of committing one crime, and find no constitutional violation of Franco's rights by virtue of the provisions of the implied consent law.
At 1:56 a. m., September 12, 1979, appellant Franco was driving a red Toyota on the University of Washington campus. While southbound on Stevens Way, he executed a tight left-hand turn to go northbound on Whitman Court. During the process of the turn the tires were squealing, which caused a University of Washington police officer to take notice. The officer had a "good idea" that the Toyota was exceeding the posted speed limit of 20 miles per hour, he had also observed pedestrians step out of the Toyota's way, so he accelerated to get in behind the car and followed it approximately one half block until the car pulled over to discharge a passenger. The officer, on approaching the vehicle, informed the driver that he had been speeding, asked for his operator's license and at the time noticed a slight odor of alcohol about his person. He requested that Franco step from the car and perform the finger-to-nose test. The officer observed that Franco was swaying and that he performed the finger-to-nose test poorly. He arrested the appellant for driving while under the influence of intoxicating liquor and transported him to the police station. After being advised of his Miranda rights, appellant indicated he had consumed two drinks at "The Broadway". He submitted to the breathalyzer and the test revealed a 0.1 percent blood alcohol content (BAC). During a trial before a jury in the superior court, Franco testified on direct examination that he had consumed one gin-and-tonic at approximately 9 p. m. at a friend's house; a Mai Tai and a Tequila Sunrise at "The Broadway" between 10 p. m. and 12 midnight, and two Mai Tai's at "Lion O'Reilly's" between midnight and 2 a. m. On cross-examination, he indicated he had consumed two Kamikazies at "Lion O'Reilly's". The appellant testified "I wouldn't call it a buzz, but I felt alcohol, but it wasn't a strong effect". Franco was convicted by the jury of driving while under the influence of intoxicants. On appeal, Franco raised various issues involving the constitutionality of the laws in question and challenged the court's manner of instructing the jury.
The first issue raised is whether the law sets out two distinct crimes, or simply alternative methods of committing the same crime. RCW 46.61.502 states:
Driving while under influence of intoxicating liquor or drug-What constitutes. A person is guilty of driving while under the influence of intoxicating liquor or any drug if he drives a vehicle within this state while:
(1) He has 0.10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood, or other bodily substance made under RCW 46.61.506 as now or hereafter amended; or
(2) He is under the influence of or affected by intoxicating liquor or any drug; or
(3) He is under the combined influence of or affected by intoxicating liquor and any drug.
The fact that any person charged with a violation of this section is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this section.
(Italics ours.)
The genesis of this law apparently began when the United States Department of Transportation, in February 1979, produced an issue paper entitled "Alcohol Countermeasures Illegal Per Se and Preliminary Breath Testing". The issue paper encouraged state legislatures to enact "illegal per se laws" establishing, as a traffic offense, the operation of a motor vehicle with a BAC equal to or in excess of a specified level, typically 0.1 percent. These statutes had been enacted in several states. Apparently as a result of the issue paper, the Washington legislature considered testimony from Dr. Ted Loomis, Ph.D., M.D., Professor of Pharmacology and Toxicology at the University of Washington. In a letter to Senator Dan Marsh, Dr. Loomis indicated, among other things, that there is an abundance of scientific support to indicate that with a BAC level of 0.1 percent, all persons are significantly affected. At that level, all persons will have lost one quarter of their normal driving ability, some persons will have lost as much as one half of their normal driving ability and a few people will not be able to even sit up in the driver's seat. Dr. Loomis concluded:
the amount of alcoholic beverages necessary to produce a blood alcohol level of 0.1% is considerable and is believed by most people to represent abusive and excessive acute consumption of alcohol.... most people who drink alcoholic beverages will recognize that the consumption of more than 8 to 9 "drinks" (that is, a half pint of whiskey, or one and one-half six packs of beer, or a quart of natural wine) in two or three hours will produce subjective effects and impaired physical performance. Yet, it is the consumption of approximately this amount of beverage that is required to produce a blood alcohol of 0.1% in the average adult.
It was against this backdrop of information the legislature amended the DWI law.
Other jurisdictions have various ways of legislating their prohibitions. Some states make driving with a BAC of 0.1 percent a separate and distinct crime. 1 Other states make driving with that BAC a lesser included offense of driving while under the influence of intoxicants, 2 and a third group of states make it an alternate method of committing the crime of driving while under the influence. 3
The tests for determining whether a statute describes a single offense committable in more than one way or describes multiple offenses is set out in scholarly detail in State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976). They are, briefly: (1) the title of the act, (2) a readily perceivable connection between the various acts set forth, (3) whether the acts are consistent with and not repugnant to each other and (4) whether the acts may inhere in the same transaction. All the tests for a single offense are clearly met in the present statute. In addition, the Washington legislature has not stated that one could be convicted with a BAC of 0.1 percent and concurrently, or additionally, be convicted of driving while under the influence of intoxicants; that is, driving affected in any appreciable degree, and thus, be subject to two penalties. See State v. Golladay, 78 Wash.2d 121, 470 P.2d 191 (1970) and State v. Ladely, 82 Wash.2d 172, 509 P.2d 658 (1973), for an analysis of the larceny statute which placed great weight on the fact that the subsections describing the manner of committing the crime were joined in the disjunctive by "or". Such is the language in the statute before us. We see no reason to construe the present statute in a manner inconsistent with our views on prior statutes or with the clear, concise, unambiguous language of the statute itself. We, therefore, conclude that under the statute there are three alternate ways of committing the crime entitled DWI.
Appellant contends that the trial court erred in delivering jury instruction Nos. 3 and 4. Jury instruction No. 3 is taken from RCW 46.61.502(1) and reads as follows:
A person commits the crime of driving while under the influence of intoxicating liquor when he drives a motor vehicle while:
(1) He has 0.10 percent or more by weight of alcohol in his blood as shown by chemical analysis of his breath, blood or other bodily substance; or
(2) He is under the influence of or affected by intoxicating liquor.
Jury instruction No. 4 reads:
To convict the defendant GEORGE E. FRANCO of driving while under the influence of intoxicating liquor, each of the following elements must be proved beyond a reasonable doubt:
(1) That on or about the 12th day of September, 1979, defendant drove a motor vehicle;
(2) That at the time the defendant either:
(a) Had 0.10 percent or more by weight of alcohol in his blood, as shown by chemical analysis of his breath, blood or other bodily substance; or
(b) Was under the influence of or affected by intoxicating liquor; and
(3) That the acts occurred in King County, Washington.
If you find from the evidence that elements (1) and (3) and either (2)(a) or (2)(b) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. Elements (2)(a) and (2)(b) are alternatives and only one need be proved.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any of these elements, then it will be your duty to return a verdict of not guilty.
According to appellant, the jury was improperly instructed as the instructions contained impermissible presumptions or, in the alternative, the instructions set out two separate methods for committing the same crime and, as such, the jury should have returned a separate verdict as to each method.
Under the prior DWI statute, RCW 46.61.506, the amount of alcohol in a person's blood created certain presumptions as to whether or not a person was under the influence of intoxicants. 4 Under the present statutory scheme, however, the presumptions have been...
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