Town of Clyde Hill v. Rodriguez, 27059-1-I

• Citation: 831 P.2d 149,65 Wn.App. 778
• Decision Date: 26 May 1992
• Docket Number: No. 27059-1-I,27059-1-I
• Court: Court of Appeals of Washington
• Parties: TOWN OF CLYDE HILL, Appellant, v. Joseph R. RODRIGUEZ, Respondent.

Page 778

65 Wn.App. 778

831 P.2d 149

TOWN OF CLYDE HILL, Appellant, v. Joseph R. RODRIGUEZ, Respondent.

No. 27059-1-I.

Court of Appeals of Washington,

Division 1.

May 26, 1992.

Daniel L. Kinerk, Bellevue, for appellant.

Doug Cowan, Bellevue, for respondent.

AGID, Judge.

On March 9, 1989, Joseph Rodriguez was arrested for driving while under the influence of intoxicating liquor. At the police station, Rodriguez was given his Miranda ¹ warnings and warnings regarding his implied consent to submit to a breath test pursuant to RCW 46.20.308. The implied consent warning, which was in written form, stated:

You are now under arrest for driving while intoxicated.

You are now being asked to submit to a test of your breath which consists of two separate samples of your breath, taken independently to determine the alcohol content.

According to the law I must advise you that you have the right to refuse to submit to the breath test. If you refuse, your privilege to drive will be revoked or denied by the Department of Licensing, and your refusal to take the test may be used in a criminal trial.

You further have the right to take one or more tests administered by a physician, or a qualified technician, chemist, registered nurse, or other qualified person of your choosing.

Rodriguez signed the form and submitted to a breath test. The reading exceeded the legal limit.

Rodriguez was charged with violation of RCW 46.61.502, driving while under the influence of intoxicating liquor (DWI). He made a motion in district court to suppress evidence of his breath test, arguing that the implied consent warning he received was inadequate. The district court granted the motion. It ruled that the warning was inadequate because it failed to conform exactly to the language of RCW 46.20.308(2), which mandates such warnings. That statute provides, in part, that

[t]he 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.

(Emphasis added.) On September 12, 1990, the superior court summarily affirmed the district court's ruling.

The district court ruled that the warning in this case was inadequate for two reasons. First, it found that the language of the warning given to Rodriguez did not make it clear that he had the right to take tests of a type different from the breath test. Because it did not specifically name other types of tests, the district court found that Clyde Hill's warning could be understood to mean only that Rodriguez had the right to take additional breath tests. Second, the court concluded that law enforcement was in fact required to use the precise language of the statute, or in the alternative, language which the Supreme Court set forth in State v. Bartels, 112 Wash.2d 882, 774 P.2d 1183 (1989), in giving the implied consent warning. Because the language of Clyde Hill's form was not precisely the same as either of these, the court determined that the warning given was insufficient.

The purpose of the implied consent statute, RCW 46.20.308, is to provide warnings to the defendant which enable him or her to make a knowing and intelligent decision as to whether to submit to a breath test. State v. Whitman Cy. Dist. Court, 105 Wash.2d 278, 282, 714 P.2d 1183 (1986). The purpose of allowing additional tests is to give the defendant a chance to impeach the breath test administered by law enforcement. State v. Stannard, 109 Wash.2d 29, 35, 742 P.2d 1244 (1987). As was stated by the Supreme Court in State v. Canaday, 90 Wash.2d 808, 817, 585 P.2d 1185 (1978), "the statutory requirement [that the defendant may obtain independent tests] demonstrates an important protection of the subject's right to fundamental fairness". If the warnings given are inadequate or misleading, evidence of the breath test must be suppressed. Bartels, 112 Wash.2d at 889, 774 P.2d 1183; Spokane v. Holmberg, 50 Wash.App. 317, 323-24, 745 P.2d 49 (1987), review denied, 110 Wash.2d 1013 (1988).

With these principles in mind, we first address Rodriguez' contention that the following language from the Bartels opinion sets forth a bright line rule mandating that these exact words must be used anytime the implied consent warning is given.

[E]very DWI suspect must be advised of these four distinct rights: (1) "you have the right to refuse the breath or blood test;" (2) "if you refuse to submit to the test your privilege to drive will be revoked or denied;" (3) "your refusal to take the test may be used in a criminal trial;" and (4) "if you take the breath or blood test, you have the right to additional tests administered by any qualified person of your own choosing."

112 Wash.2d at 886, 774 P.2d 1183. Because the warning in this case does not conform precisely to this language, Rodriguez argues it is inadequate in that it (1) fails to mention the blood test in the appropriate places, and (2) uses the term "one or more" rather than "additional". ² For the reasons discussed below, we conclude that Bartels supports neither of Rodriguez' arguments.

Bartels involved six consolidated appeals. In each case, the driver had been arrested on suspicion of DWI. Each was given Miranda and implied consent warnings. Each agreed to take either a breath or blood test, and each test indicated the driver's blood contained an excessive amount of alcohol. As part of the implied consent warning, each driver was advised that he or she could seek additional tests "at your own expense". 112 Wash.2d at 884, 774 P.2d 1183. The issue before the court was whether these superfluous words misinformed indigent drivers, thus interfering with their opportunity to intelligently exercise their right to take other tests. The Supreme Court ruled that the phrase was inaccurate as to indigent drivers since, under the Washington Rules of Court, an indigent person is entitled to reimbursement for such tests. 112 Wash.2d at 887, 774 P.2d 1183. Inclusion of the disputed clause in the warning thus interfered with an indigent driver's ability to make an informed judgment as to whether to take additional tests, requiring suppression of the results of their breath or blood tests. 112 Wash.2d at 888-89, 774 P.2d 1183.

While the court in Bartels used the phrase "breath or blood test" in its recitation of the warning, in so doing it was not mandating that both tests be mentioned every time the warning is given. Rather, it was simply encompassing the facts of the six cases before it in which both types of tests had been administered at the direction of the arresting officers. ³ There are several reasons for this conclusion.

First, the portion of the Bartels opinion and the implied consent statute upon which Rodriguez relies mentions both types of tests only in the context of the test that law enforcement will administer, not in the context of informing the driver of his right to take additional tests. Second, even if both types of tests were referred to in the context of taking additional tests, the use of the disjunctive "or" in the statute and in Bartels demonstrates that the Legislature intended that one or the other type of test be mentioned, not both.

This court has said that " '[w]hen the term "or" is used [in a statute] it is presumed to be used in the disjunctive sense, unless the legislative intent is clearly contrary.' " Childers v. Childers, 89 Wn.2d 592, 595, 575 P.2d 201 (1978). Further, " 'or' does not mean 'and' ". Childers at 598, 575 P.2d 201.

(Additional citations omitted.) In re Blauvelt, 115 Wash.2d 735, 743, 801 P.2d 235 (1990). Had the Legislature intended to direct law enforcement officers to mention both tests, it could easily have used "and" rather than "or". Third, the statute requires that a breath, not blood, test be given unless the suspect is unconscious or is under arrest for injury to another. RCW 46.20.308(3). It would therefore be confusing to a suspect in Rodriguez' position to be told he had a right to refuse a breath or blood test when it is clear that he can legally be asked only to submit to a breath test. The additional words do nothing to clarify his rights or enlighten his decision. Finally, the Bartels court was neither asked nor did it decide whether the implied consent warning should include any statement about the types of tests a driver could take if he or she wished to contest the accuracy of the test given at the time of arrest. Thus, the language on which Rodriguez relies must be read to require only that the police shall inform the driver that he or she has a right to refuse the type of test the police actually intend to administer. It would be both confusing and unavailing to do otherwise.

Moreover, any specification by law enforcement of the type of tests which may be available to the driver would in itself be potentially inaccurate or misleading. It is not clear what other tests, if any, can be used at trial. For example, RCW 46.61.506 does not provide that other tests, such as a urine test, may be admitted as evidence that the driver was intoxicated. But, as respondent's counsel pointed out at oral argument, this does not necessarily foreclose the use of such tests by the defense for impeachment purposes. Therefore, specification of only blood and breath tests in the warning could mislead the driver into assuming that tests of other bodily substances may not be used to impeach the test obtained by the officer.

The Bartels court made the following observation in ruling that adding the words "at your own expense" is misleading to indigent drivers:

[w]hether the warning can be abstractly characterized as "accurate" is irrelevant. Informing an indigent driver that additional tests will definitely and finally be "at your own expense" is less accurate than saying nothing on that proposition.

112 Wash.2d at 888, 774 P.2d 1183. The same reasoning applies here. While it...