State v. Yallup

• Decision Date: 10 March 2011
• Docket Number: No. 28040–3–III.,28040–3–III.
• Citation: 248 P.3d 1095,160 Wash.App. 500
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Elon Alex YALLUP, Appellant.

160 Wash.App. 500

248 P.3d 1095

STATE of Washington, Respondent,

v.Elon Alex YALLUP, Appellant.

No. 28040–3–III.

Court of Appeals of Washington, Division 3.

March 10, 2011.

Andrea Burkhart, Burkhart & Burkhart PLLC, Walla Walla, WA, for Appellant.Kevin Gregory Eilmes, Prosecuting Attorney's Office, Yakima, WA, for Respondent.KORSMO, A.C.J.

[160 Wash.App. 503] ¶ 1 Elon Yallup challenges his conviction for felony driving while under the influence (DUI), arguing that the State cannot enforce the implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. We conclude that the implied consent statute is primarily a criminal statute rather than a civil regulatory statute as that distinction is applied by the United States Supreme Court in cases interpreting Public Law 280.

FACTS

¶ 2 Mr. Yallup was observed on September 8, 2007, driving his car off the road and into a canal located on the Yakama Indian Reservation. Emergency crews rescued him and took him to the Toppenish Community Hospital. ¹ Washington State Patrol Trooper Russell Sharpe contacted him at the hospital. Mr. Yallup did not respond to the trooper, who arrested him and had blood drawn pursuant to Washington's implied consent statute.

¶ 3 Mr. Yallup was charged in the Yakima County Superior Court with one count of felony DUI, driving without an interlock device, and second degree driving while license suspended or revoked. He moved to suppress the results of the blood alcohol test on the basis that the implied consent statute could not be applied to an enrolled member of the Yakama Nation who was driving on the reservation. The motion was denied.

¶ 4 The matter proceeded to jury trial. The blood alcohol test, showing a .27 percent reading, was admitted. The parties also entered a stipulation for the jury that: (1) Mr. Yallup's driver's license was suspended in the second degree and he was not “eligible for reinstatement due to a prior conviction of RCW 46.61.502 or 46.61.504” and (2) he “is required by the Department of Licensing to operate only a motor vehicle with an ignition interlock device.” Clerk's Papers (CP) at 55. The stipulation expressly left open the question of whether or not Mr. Yallup was driving the vehicle when it crashed. Defense counsel argued the case on the theory that Mr. Yallup was not the driver.

¶ 5 The jury found Mr. Yallup guilty on all three counts. The trial court used an offender score of seven when scoring the felony DUI count and imposed a standard range sentence of 57 months on that count. A term of 9–18 months of community custody was also imposed. Mr. Yallup then timely appealed to this court.

ANALYSIS

¶ 6 The primary issue in this case is whether the implied consent statute ² cannot be applied to Mr. Yallup because of either Public Law 280 or the treaty with the Yakama Nation. Mr. Yallup also argues that the trial court used the wrong offender score and lacked authority to impose community custody. We will address those arguments in the order listed.

¶ 7 Public Law 280. The application of state laws to Native Americans in “Indian country” ³ raises sensitive questions of sovereignty. Reservations are subject to federal law, but wholesale application of state law would diminish tribal autonomy. Instead, state laws apply only to the extent authorized by Congress. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987).

¶ 8 Public Law 280 authorized the states to assert jurisdiction over reservations within their boundaries. McCrea v. Denison, 76 Wash.App. 395, 398, 885 P.2d 856 (1994). Washington's response to Public Law 280 is found in chapter 37.12 RCW. Washington asserted civil and criminal jurisdiction over Indians on the reservation in eight specified areas. RCW 37.12.010. The one area in question here is the assertion of jurisdiction over the “Operation of motor vehicles upon the public streets, alleys, roads and highways.” RCW 37.12.010(8) (partial).

¶ 9 In Cabazon Band, the United States Supreme Court addressed California's attempt to regulate tribal high-stakes bingo operations on two reservations. 480 U.S. at 204–206, 107 S.Ct. 1083. Some forms of gambling were permitted in California subject to various regulations; criminal penalties were included in the regulatory scheme. Id. at 209–211, 107 S.Ct. 1083. Adopting an approach used by the Ninth Circuit in earlier California tribal gambling cases, the Cabazon Band majority distinguished criminal statutes from regulatory statutes.⁴ Id. at 209–210, 107 S.Ct. 1083. If the conduct was generally prohibited, it was criminal in nature; if the conduct was permitted, but regulated, it was considered civil in nature. Id. The court concluded that gambling was a regulated industry rather than a prohibited endeavor and declined to permit California to regulate the bingo activities. Id. at 210–212, 107 S.Ct. 1083.

¶ 10 Seizing upon the Cabazon Band analysis, Mr. Yallup argues that because driving is generally permitted, the licensing of drivers is a regulatory scheme rather than a criminal prohibition. He therefore concludes that the State lacks authority to require licenses for tribal members driving on the reservation. He further argues that the license enforcement regime, including the implied consent law, is also regulatory in nature and cannot be enforced against him. Because of that, he concludes that his blood alcohol test was improperly admitted against him at trial.

¶ 11 There are at least three difficulties with his argument. The initial difficulty involves his claim that Cabazon Band is even applicable to this case. That problem arises because Washington and California are not similarly situated under Public Law 280. California was one of five states granted jurisdiction by that legislation over some or all of the reservations within their boundaries. Cabazon Band, 480 U.S. at 207, 107 S.Ct. 1083. Those five “mandatory” states were granted broad criminal law authority, but very limited civil law authority over reservation lands because civil authority was limited to actions between private parties.⁵ Id. In contrast, Washington and the other states were granted permissive civil and criminal authority over reservations within their boundaries “to assume jurisdiction at such time and in such manner” as the State chose. Pub.L. 280 § 7, 67 Stat. at 590. The extent of the assertion of state jurisdiction varies significantly across the country. Washington, however, asserted its full civil and criminal jurisdiction in eight specific areas.⁶ RCW 37.12.010. Thus, the Cabazon Band test, which distinguishes between criminal and civil jurisdiction, does not appear to be applicable.⁷ The actual question is whether Washington has asserted jurisdiction rather than what type of jurisdiction it has asserted.

¶ 12 This question was presented by the decision in State v. Pink, 144 Wash.App. 945, 185 P.3d 634 (2008). There the defendant, a tribal member, was charged with unlawful possession of a firearm discovered in a car during a traffic stop on a state highway running through a reservation. Id. at 947–948, 185 P.3d 634. The charges were dismissed because the State lacked authority to prosecute the crime since it did not involve the operation of a motor vehicle on a public highway under RCW 37.12.010(8). Id. at 949, 956, 185 P.3d 634. If Washington had a broad grant of general criminal jurisdiction, as appears to be the case in California, the issue would not have even arisen. The Cabazon Band analysis simply is not apropos here.

¶ 13 The second difficulty with Mr. Yallup's argument involves the level of generality at which he argues. The question here is not driving and driver's licensing in general. The specific question involves the Washington's impaired driving statutes and their application to Mr. Yallup's conduct on September 8, 2007. Addressing the implied consent statute as an adjunct of a licensing scheme rather than on its own merits does not resolve the fundamental question of what type of statute it is.

¶ 14 The third difficulty we have concerns the merits of Mr. Yallup's claim. Even if we assume that Cabazon Band is applicable to this case because Washington has greater criminal authority over reservation roads than it has civil authority, there is no question that the challenged statutes are criminal in nature. It is a crime to drive in the state of Washington without a valid driver's license. RCW 46.20.005.⁸ It is a crime in this state to drive when one's license or privilege has been suspended or revoked. RCW 46.20.342. It is a gross misdemeanor crime to drive, or be in physical control of a vehicle, when one is impaired by alcohol or drugs. RCW 46.61.502, .504. In some instances, impaired driving or physical control is a felony. RCW 46.61.502(6), .504(6), .5055(4). As a result of impaired driving convictions, the driver's license is suspended and an ignition interlock may be required for future driving. RCW 46.61.5055(5), (6), (9).

¶ 15 The implied consent statute, RCW 46.20.308, was adopted to “control or reduce the drunk-driver hazard to highway safety.” State v. Moore, 79 Wash.2d 51, 53, 483 P.2d 630 (1971). It operates by recognizing that drivers have consented to alcohol testing by the operation of a motor vehicle within the state. RCW 46.20.308(1). Consent can be withdrawn in some circumstances, but the license to drive will be suspended when consent is withdrawn. RCW 46.20.308(2)(a). In the event that consent is withdrawn, evidence of the refusal to take the test “may be used in a criminal trial.” RCW 46.20.308(2)(b). The statute was upheld in Moore against various constitutional challenges, with the court recognizing the statute “having as its purpose the reduction of traffic carnage occasioned by the inebriated driver.” 79 Wash.2d at 58, 483 P.2d 630.

¶ 16 The clear focus of the implied consent statute is gathering evidence for...