Welch v. State, Dept. of Motor Vehicles, 2509--I
| Decision Date | 02 June 1975 |
| Docket Number | No. 2509--I,2509--I |
| Citation | 13 Wn.App. 591,536 P.2d 172 |
| Parties | Eugene B. WELCH, Appellant, v. STATE of Washington, DEPARTMENT OF MOTOR VEHICLES, Respondent. |
| Court | Washington Court of Appeals |
Johnston, Woody & Neal, Inc., P.S., Levy S. Johnston, Mountlake Terrace, for appellant.
Slade Gorton, Atty. Gen. of Washington, James R. Silva, Asst. Atty. Gen., Olympia, for respondent.
The facts are undisputed. On June 12, 1969, Eugene B. Welch was arrested and charged with driving while under the influence of intoxicating liquor. At that time, the arresting officer sought to administer a chemical analysis of Welch's breach to determine his blood alcohol content pursuant to RCW 46.20.308. Welch refused to take the test after being advised that he had a right to refuse, but in the event of refusal, he 'could' lose his license. He was also advised that he had a right to have additional tests administered by any qualified person of his choosing.
Welch's license was revoked for 6 months by the Department of Motor Vehicles. He appealed the revocation in turn to the Department of Motor Vehicles, the Superior Court and eventually to this court.
The sole issue on appeal is the sufficiency of the statutorily required warning concerning the penalty to be imposed for refusing to submit to the breathalyzer test. We determine the warning was insufficient and reverse.
The certainty of a 6-month license revocation, after a proper warning and upon refusal, is absolute. RCW 46.20.308(3). The word 'could,' however, 'merely expresses 'a contingency that may be possible' and nothing more.' United States Casualty Co. v. Kelly, 78 Ga.App. 112, 116, 50 S.E.2d 238, 240 (1948); See also Merriam-Webster Third New Int'l Dictionary (1969). Its use in advising Welch informed him of the 'possibility' of license revocation when, in reality, revocation is a certainty.
The 'obvious purpose' of the statutory warning 'is to provide (the operator) the opportunity of exercising an intelligent judgment . ..' State Dept. of Motor Vehicles v. McElwain, 80 Wash.2d 624, 628, 496 P.2d 963, 965 (1972); Hering v. State Dept. of Motor Vehicles, 13 Wash.App. 190, 534 P.2d 143 (1975); Strand v. Department of Motor Vehicles, 8 Wash.App. 877, 509 P.2d 999 (1973); Junkley v. Department of Motor Vehicles, 7 Wash.App. 827, 503 P.2d 752 (1972). The warning here did not provide Welch with the opportunity to exercise the intelligent judgment which the mandatory language of the...
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