State v. McNichols

Decision Date30 November 1995
Docket NumberNo. 62431-3,62431-3
Citation906 P.2d 329,128 Wn.2d 242
CourtWashington Supreme Court
PartiesSTATE of Washington, Petitioner, v. Paul K. McNICHOLS, Respondent.

Honorable Jim Sweetser, Spokane County Prosecutor, Kevin M. Korsmo, Deputy Prosecutor, Spokane, for petitioner.

Winston & Cashatt, Carl E. Hueber, Thomas M. McBride, Spokane, for respondent.

MADSEN, Justice.

This case arises out of the conviction of Paul K. McNichols of driving while intoxicated. At issue is (1) whether Washington's implied consent statute imposes an affirmative duty on jail personnel to advise DWI suspects regarding additional testing; and (2) whether jail personnel interfered with McNichol's attempt to obtain an independent blood alcohol test.


On April 13, 1991, at approximately 11:00 p.m., Washington State Trooper Pete Powell observed McNichols drive through a stop sign at about 45 miles per hour. Powell followed McNichols for one-quarter of a mile before pulling him over. When McNichols exited his car he was swaying and had an unsteady balance. Powell smelled a strong odor of alcohol and found McNichols' eyes to be bloodshot and slow to focus. McNichols failed a field sobriety test and was arrested for driving while intoxicated (DWI). He was transported to the Public Safety Building for a BAC Verifier-Datamaster (BAC) test.

McNichols was advised of his Miranda rights and was informed of his rights under Washington's implied consent statute. See RCW 46.20.308(1) and (2); RCW 46.61.506(5). Before submitting to the BAC, McNichols spent twenty minutes attempting to telephone his father. Unable to At the jail McNichols asked jail officials for a blood test. This request was noted, at McNichols' insistence, on a jail processing form. The booking officer, Terry Chavens, testified that while he could not recall the exact information he gave McNichols regarding additional testing, he did recall informing McNichols that jail personnel did not perform blood tests. Further, Chavens said that as part of a routine statement given to DWI suspects it was possible that he informed McNichols that he could arrange to have his physician draw blood and that he would have use of the telephones to "notify or arrange for a blood test once he's released from the facility." Clerk's Papers, at 96. Between 12:30 a.m. and 1:45 a.m. McNichols had access to a telephone.

reach him, McNichols then called the on-duty public defender. At 12:09 a.m. McNichols submitted to the BAC test. The first sample registered .26. The second sample was given at 12:13 a.m. and registered .24. Shortly thereafter McNichols was transferred to the Spokane County Jail for booking.

Another jail official, Officer John Holmes, testified that he overheard McNichols request a blood test from Chavens. Holmes stated that he heard Chavens explain to McNichols "that the jail does not administer blood tests and that he should have taken that process up with the arresting officer." Clerk's Papers, at 103.

At approximately 1:45 a.m. it was determined that McNichols qualified for release on his own recognizance. McNichols called a friend to arrange for a ride home. At about 2:40 a.m. he was given his personal effects. He left the jail with a friend at approximately 3:00 a.m. and went home. McNichols stated that he chose not to have a blood test after his release from jail for he believed that too much time had passed since his arrest for him to obtain an accurate result.

Prior to trial, McNichols moved to dismiss the charge, or in the alternative to suppress the State's BAC test results, on grounds that law enforcement personnel had The Superior Court for Spokane County reversed the district court decision after finding that law enforcement personnel had frustrated McNichols' efforts to obtain an independent blood test. The court dismissed the charge and awarded McNichols costs including statutory attorney fees. The State appealed this decision to the Court of Appeals, Division III.

frustrated his efforts to obtain an independent blood test. The motion was denied. Subsequently, McNichols was convicted following a stipulated facts trial. Judgment was entered on June 24, 1992 and sentencing was stayed pending appeal.

The court of appeals granted discretionary review and affirmed the superior court decision holding that "the booking officer unreasonably interfered with Mr. McNichols' right to gather evidence." State v. McNichols, 76 Wash.App. 283, 288, 884 P.2d 620 (1994). The court found dismissal to be the proper remedy since the error could not be remedied by a new trial. Further, the court declined to address the issue of attorney fees for it found that the State waived any objection by not complying with RALJ 9.3(d), which requires the filing of objections to cost bills within ten days of service of the cost bill. The record shows that the State filed an objection seventeen days after service.

We granted discretionary review.


The first issue before this court is whether jail personnel have an affirmative duty, under Washington's implied consent statute, to advise DWI suspects regarding independent blood alcohol testing.

Washington's implied consent statute provides in pertinent part that:

(1) 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 alcoholic content of 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.

(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor.... The officer shall 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 shall warn the driver that (a) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test, and (b) that his or her refusal to take the test may be used in a criminal trial.

RCW 46.20.308(1) and (2) (emphasis added).

The State argues that Washington's implied consent statute directs the behavior of a "law enforcement officer" only, and policy reasons support limiting obligations under the statute solely to law enforcement personnel involved in the arrest and investigation of a DWI case. The State contends that most jail personnel "are not trained in enforcing criminal statutes and can hardly be expected to know what is required of law enforcement officers." Pet. for Review at 7.

McNichols argues that jail personnel are state officials having custody during the booking procedure of DWI suspects, and therefore are not relieved of the duty to afford DWI suspects reasonable opportunity to obtain blood tests without interference.

We agree with the court of appeals' holding which held that the implied consent statute applies to all government employees. McNichols, 76 Wash.App. at 288, 884 P.2d 620. Where an individual acts on the authority of the State, he or she is an agent of the State and has a duty to enforce the laws. See State v. Sargent, 111 Wash.2d 641, 642, 762 P.2d 1127 (1988) (State violated the defendant's Fifth and Sixth Amendment rights when a probation officer preparing a sentencing statement failed to give the defendant Miranda warnings and assistance of counsel); Kuehn v. Renton School Dist., 103 Wash.2d 594, 600, 694 P.2d 1078 (1985) (when a private person acts under the authority of the State, Fourth Amendment protections apply). Accordingly, we find that jail personnel, as agents of the State, are required to afford DWI suspects reasonable opportunity to obtain blood tests without interference. As the court of appeals reasoned, the statutory right to additional tests is worthless if unobtainable, and forcing a DWI suspect to obtain tests only through police would eviscerate the right. 76 Wash.App. at 288, 884 P.2d 620.

The court of appeals went further, however, holding that jail personnel have an affirmative duty to inform a DWI suspect that (1) a qualified person of the suspect's choosing can come to the jail to administer an independent test; and (2) the suspect can use the telephones to make the necessary arrangements if that is what the suspect wishes to do. McNichols, 76 Wash.App. at 288, 884 P.2d 620. Neither the language of the statute nor the case law supports imposition of these duties.

RCW 46.20.308(2) instructs the officer administering the BAC test to inform the DWI suspect of his or her rights under the statute. State v. Bartels, 112 Wash.2d 882, 886, 774 P.2d 1183 (1989); City of Blaine v. Suess, 93 Wash.2d 722, 725, 612 P.2d 789 (1980). The importance of the statutory requirement is the protection of the accused's right to fundamental fairness, which is built into the implied consent procedure. Bartels, 112 Wash.2d at 886, 774 P.2d 1183; accord State v. Canaday, 90 Wash.2d 808, 817, 585 P.2d 1185 (1978). The implied consent warnings enable the accused to make an informed and intelligent decision about how to exercise his or her statutory right. Bartels, 112 Wash.2d at 888, 774 P.2d 1183; State v. Whitman County Dist. Court, 105 Wash.2d 278, 282, 714 P.2d 1183 (1986). There is no language in the statute imposing an affirmative duty on the State to provide a DWI suspect with additional advice beyond the warnings. See State v. Bostrom, 127 Wash.2d 580, 588, 902 P.2d 157 (1995) (under plain language of implied consent statute officers are not required to...

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