State v. Rivard

Citation929 P.2d 413,131 Wn.2d 63
Decision Date16 January 1997
Docket NumberNo. 63906-0,63906-0
CourtUnited States State Supreme Court of Washington
PartiesThe STATE of Washington, Petitioner, v. James D. RIVARD, Respondent.

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

Richard L. Bechtolt, Jr., Spokane, for respondent.

SMITH, Justice.

The Prosecuting Attorney of Spokane County, for the State of Washington, seeks review of an opinion of the Court of Appeals, Division III, 1 which affirmed a decision of the Spokane County Superior Court suppressing results of a blood alcohol test administered to Respondent James D. Rivard shortly after an accident in which an automobile he was driving struck a person riding a skateboard. 2 We granted review. We reverse the Court of Appeals.


The questions presented are: (1) whether, whenever a driver has been involved in a serious automobile accident, the implied consent statute, RCW 46.20.308, must be invoked and the driver advised by a police officer of that person's statutory right to additional testing, or whether a police officer may obtain voluntary consent from the driver to a blood alcohol test independent of the implied consent statute; and (2) whether the driver was under arrest when the police officer gave the driver "specific instructions not to leave" or whether there was a de facto arrest which required reading of implied consent warnings.


On the night of December 1, 1993 at approximately 11:40 p.m. Respondent James D. Rivard was the driver of an automobile which struck skateboard rider James Mecsko in Spokane. 3 Spokane Police Officer James J. Olsen responded to the scene, assisted the paramedics in rendering aid to Mr. Mecsko, and investigated the accident. 4 Mr. Mecsko later died from the injuries he sustained in the accident. 5

Respondent Rivard was near the scene of the accident at a telephone booth (from which he had called his father) when Officer Olsen first contacted him. As part of the investigation, Officer Olsen asked Respondent some preliminary questions. Shortly after midnight in the early morning of December 2, 1993 Officer Olsen read to Respondent During the on-site investigation, Sergeant Stanley C. McGhee took Officer Olsen aside and told him "we need to have a blood test." 10 Officer Olsen then asked Mr. Rivard to give a blood sample, indicating that "in cases like this our usual procedure is to get a blood test." 11 Respondent was given a choice of hospitals. 12 He was not advised of his right to independent testing. 13 After consultation with his father, Respondent agreed to the blood test. 14 Officer Olsen transported Respondent to Sacred Heart Hospital where a blood test was administered. 15 Prior to the blood test Respondent signed a waiver that stated he "consented of his free will to allow [the] Law Enforcement Agency to obtain Respondent James D. Rivard was charged in the Spokane County Superior Court on February 8, 1994 with vehicular homicide under RCW 46.61.520, the Information reading:

                his constitutional rights. 6  Respondent indicated he understood his rights and signed the Miranda card provided by the officer. 7  Respondent Rivard's father, Douglas S. Rivard, arrived at about this time and was present during the conversation between his son and the officer which followed the Miranda warnings. 8  Respondent's father was also present when the officer administered a field sobriety test to Respondent. 9
                a Legal Blood Sample." 16  He was then allowed to leave. 17  Respondent was not arrested at the scene of the accident.  However, the trial court concluded he was probably not free to leave. 18

Comes now the Prosecuting Attorney in and for Spokane County, Washington, and charges the defendant(s) with the following crime(s): VEHICULAR HOMICIDE, committed as follows: That the defendant, JAMES DOUGLAS RIVARD, in Spokane County, Washington, on or about December 1, 1993, operated a motor vehicle while under the influence of or affected by intoxicating liquor and any drug, and in a reckless manner, and with disregard for the safety of others, and as a proximate result of operating said vehicle in that manner or condition did cause injuries to James Mecsko, who died on or about December 1, 1993, as a proximate result of the injuries received[.]

19. No. 94-1-00132-0, Information.

                    s/ Steven J. Kinn                        12984
                    ------------------------------  --------------
                    Deputy Prosecuting Attorney      WA St. Bar ID  # 19
                19. No. 94"1"00132"0, Information
                On September 23, 1994 the Honorable Kathleen M. O'Connor, after a hearing
                signed an order granting Respondent's motion to suppress the results of the
                blood alcohol test. 20  She based her decision upon testimony heard on
                July 5, 1994 and arguments heard on July 5 and September 14, 1994. 21
                The trial court originally granted the same motion on the date of Respondent
                Rivard's first trial, 22 July 6, 1994. 23  A mistrial was declared when
                the jury was unable to reach a verdict. 24
                The State of Washington (Petitioner) sought review in the Court of Appeals of
                the order of the Superior Court suppressing the blood test results. 25  On
                September 27, 1994 Commissioner Kenneth H. Kato denied the motion for
                discretionary review and stay of trial. 26  On October 24, 1994 the Court
                of Appeals, Division III, granted Petitioner's Motion to Modify the
                Commissioner's Ruling. 27  The Court of Appeals, the Honorable Dennis J
                Sweeney writing, on February 15, 1996 affirmed the order of the trial court
                suppressing the results of Respondent Rivard's blood test. 28  We granted
                review on July 9, 1996

The implied consent statute, former RCW 46.20.308, 29 in 1993 when this action arose, provided in pertinent part that:

(1) Any person who operates a motor vehicle within this (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. However, in those instances where: (a) The person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample; or (b) as a result of a traffic accident the person is being treated for a medical condition in a hospital, clinic, doctor's office, or other similar facility in which a breath testing instrument is not present, a blood test shall be administered by a qualified person as provided in RCW 46.61.506(4). 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.

state is deemed to have given consent, subject to the provisions[929 P.2d 416] 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.

(3) Except as provided in this section, the test administered shall be of the breath only. If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which another person has been injured and there is reasonable likelihood that such other person may die as a result of injuries sustained in the accident, a breath or blood test may be administered without the consent of the individual so arrested.

(Emphasis added.)

Petitioner State of Washington argues that mere existence of the implied consent statute does not require its use in all cases of suspected vehicular homicide and that police officers may obtain voluntary consent to blood alcohol testing without invoking the statute. 30 Petitioner further claims that nothing in the text of the statute mandates its use, but concludes there is no reason to follow any other procedure because the trial court found there was a valid voluntary consent. 31 Petitioner does not identify the other procedure to which it referred.

The facts in this case are fairly similar to those in State v. Wetherell. 32 In that case, a consolidated appeal, the officers did not give to the accused statutory implied consent warnings or Miranda warnings before obtaining a blood sample or administering a breathalyzer test. 33 One defendant, Dennis C. Wright, consented, was later given Miranda warnings, and the test was administered a second time. 34 The other defendant never consented. 35

The basic question in Wetherell was whether the statute applied to motor vehicle drivers not under arrest for any offense at the time a law enforcement request was made for a sobriety test. 36 This court reviewed decisions from other courts which considered similar statutes and concluded that a lawful arrest of an offending motorist is an essential step before the implied consent statute applies. 37 Unlike the defendants in Wetherell, Respondent Rivard was read his Miranda rights prior to the request by the officer for the blood test. He was asked whether he understood his rights. He signed the Miranda form and the waiver for the blood test. At no time did he ask...

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