IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 72260-3-1
Petitioner, DIVISION ONE
v.
PUBLISHED OPINION
DARREN J. ROBISON,
CO
Respondent. FILED: February 16,2016 co
Leach, J. — Before an officer gives a breath test to a person reasonably
believed to be driving under the influence, an officer must provide that driver with
certain warnings required by statute. Here, the State asks this court to reverse a
superior court decision suppressing breath test results because the officer
omitted the statutorily required warnings about marijuana. The State contends
that a defendant must show prejudice before a court can suppress breath test
results because of incomplete warnings. Thus, because the breath test
administered to Darren J. Robison could not measure the active ingredient in
marijuana, tetrahydrocannabinol (THC), the State claims that he cannot show
that the officer's omission prejudiced him. Because the applicable statute
required the marijuana warning and Robison was not required to show prejudice
caused by its omission, we affirm the superior court.
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FACTS
On June 29, 2013, Washington State Patrol Trooper B.S. Hyatt stopped
Darren J. Robison for traffic violations. Trooper Hyatt smelled intoxicants and
marijuana. Trooper Hyatt asked how long it had been since Robison had
smoked marijuana. Robison responded that it had been a couple of hours.
Trooper Hyatt arrested Robison. At the Tulalip Police Department, officers read
Robison an "Implied Consent Warning for Breath" form, which Robison stated he
understood and signed. The form included warnings only about alcohol and did
not include any marijuana-related warnings. The two breath tests given Robison
both produced results over the legal limit.
The State charged Robison with driving under the influence. Robison
asked the district court to suppress evidence based on an illegal stop and to
suppress the breath test because Robison did not receive all required implied
consent warnings. The district court denied the motion. It concluded that
Trooper Hyatt had probable cause to stop Robison. The district court also took
judicial notice that the breath test used cannot detect THC. It noted that Trooper
Hyatt's warning specified that the purpose of the test was to determine the
alcohol concentration in Robison's breath. The district court decided that the
implied consent warnings given accurately informed Robison of the
consequences of the breath tests, which "were all the warnings that were legally
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required on the date of violation given the decision facing the defendant." The
district court found Robison guilty but stayed his sentence pending his appeal.
Robison appealed to the superior court. The superior court reversed the
district court. It found that the marijuana-related warnings were a significant part
of the required implied consent warnings and the failure to give these warnings
under the circumstances made the warnings given incomplete and misleading.
The superior court suppressed the test results and remanded the case to the
district court for further proceedings consistent with its decision.
This court granted the State's request for discretionary review of the
superior court's decision.
STANDARD OF REVIEW
We review de novo a superior court's legal conclusions about suppression
of evidence.1 We also review de novo the legal sufficiency of implied consent
warnings.2
ANALYSIS
The State contends that a court measures the sufficiency of statutorily
required implied consent warnings by deciding if, based on a case's
circumstances, the warnings given allow the recipient to knowingly and
intelligently decide whether to take a breath test. The State claims this means an
1 State v. Chacon Arreola. 176 Wn.2d 284, 291, 290 P.3d 983 (2012).
2 State v. Morales, 173 Wn.2d 560, 567, 269 P.3d 263 (2012).
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NO. 72260-3-1 / 4
officer has discretion to tailor the warnings by omitting language he decides is
"irrelevant." It also means that the warning recipient must show prejudice before
a court can suppress test results. We disagree because we cannot ignore the
plain language of a statute adopted by Washington voters.
We begin our analysis by reviewing the general framework of
Washington's implied consent statute. We then look at the language of the
applicable statute, RCW 46.20.308, in effect at the time of Robison's arrest.
Before giving a breath test to a person reasonably believed to be driving
under the influence, an officer must provide that person with certain warnings
required by statute. Specifically, an officer must inform the driver of his right to
refuse the test or to have additional tests done.3 The officer's warning must also
state that refusal to take the test will result in license revocation, that the refusal
may be used at a criminal trial, and that the driver may be eligible for an ignition
interlock license.4 Pertinent to this case, the officer must also warn about the
consequences of certain test results. This warning has changed several times in
recent years.
On November 6, 2012, Washington voters enacted Initiative 502,
legalizing some uses of marijuana.5 This initiative also amended the test result
3 RCW 46.20.308(2).
4 RCW46.20.308(2)(a), (b), (d).
5 Laws of 2013, ch. 3 (effective Dec. 6, 2012).
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NO. 72260-3-1 / 5
warning in former RCW 46.20.308(2) by adding a warning about marijuana test
results:
The officer shall warn the driver, in substantially the following
language, that:
(c) If the driver submits to the test and the test is
administered, the driver's license, permit, or privilege to drive will be
suspended, revoked, or denied for at least ninety days if:
(i) The driver is age twenty-one or over and the test
indicates either that the alcohol concentration of the driver's breath
or blood is 0.08 or more or that the THC concentration of the
driver's blood is 5.00 or more.[6]
The legislature again amended RCW 46.20.308, effective September 28,
2013, to omit the language "or blood" from the quoted section as well as other
references to implied consent for a blood test.7 Later, the legislature again
amended this statute, effective September 26, 2015, to eliminate a driver's
implied consent to a test for THC or any other drug and the warning language at
issue in this case, "or that the THC concentration of the driver's blood is 5.00 or
more."8
Before giving Robison the challenged breath tests, Trooper Hyatt read to
Robison an "Implied Consent Warning for Breath" form. It provided the following
warnings about test results:
6 Laws of 2013, ch. 3, §31.
7 Laws OF 2013, 2d Spec. Sess., ch. 35, § 36.
8RCW46.20.308(2)(c)(i).
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NO. 72260-3-1 / 6
FURTHER, 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 ALCOHOL
CONCENTRATION.
2. YOU ARE FURTHER ADVISED THAT IF YOU SUBMIT TO
THIS BREATH TEST, AND THE TEST IS ADMINISTERED,
YOUR DRIVER'S LICENSE, PERMIT, OR PRIVILEGE TO
DRIVE WILL BE SUSPENDED, REVOKED, OR DENIED BY
THE DEPARTMENT OF LICENSING FOR AT LEAST
NINETY DAYS IF YOU ARE:
(A) AGE TWENTY-ONE OR OVER AND THE TEST
INDICATES THE ALCOHOL CONCENTRATION OF
YOUR BREATH IS 0.08 OR MORE, OR YOU ARE IN
VIOLATION OF RCW 46.61.502, DRIVING UNDER
THE INFLUENCE, OR RCW 46.61.504, PHYSICAL
CONTROL OF A VEHICLE UNDER THE
INFLUENCE.
Thus, Trooper Hyatt warned Robison about the consequences of test
results showing a certain level of alcohol concentration in his breath, but not the
consequences of results showing a prohibited level of THC concentration in his
blood. The superior court suppressed the test results because of this omission.
The State asks this court to reverse the superior court, claiming that an
officer has discretion to omit "irrelevant" information from implied consent
warnings and that defendant must show prejudice before a court can suppress
breath test results because of incomplete warnings. The State reasons that
because the breath test administered to Robison could not measure THC levels,
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NO. 72260-3-1/7
the THC warning was irrelevant and he cannot show prejudice caused by
Trooper Hyatt's omission of the warnings about THC test result consequences.
Robison responds that the statute's plain language says that an officer "shall
warn" the accused, leaving Trooper Hyatt without discretion to omit any part of
the statutory warning. He further responds that he does not have to show
prejudice.
When interpreting a statute, this court has the primary goal of carrying out
legislative intent.9 When the language of a statute is unambiguous, this court
may not change the statute's plain meaning by construction.10 Following this
rule, Washington cases have "consistently required strict adherence to the plain
language of the implied consent statute."11 Two Supreme Court cases show this
history.
In State v. Whitman County District Court,12 officers warned accused
drivers that a refusal to submit to a breath test "shall" be used against them at
trial instead of the statutory language "may." The Supreme Court affirmed the
district court's suppression of the breath test results. The court stated that the
implied consent statute used the word "may" and the statute was "worded in the
mandatory sense." This meant that "the officer had no discretion with regard to
9 City of Seattle v. St. John. 166 Wn.2d 941, 945, 215P.3d 194(2009).
10 State v. Bostrom, 127 Wn.2d 580, 586-87, 902 P.2d 157 (1995).
11 Bostrom, 127 Wn.2d at 587.
12 105 Wn.2d 278, 714 P.2d 1183 (1986).
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NO. 72260-3-1 / 8
the wording he used to warn the accused."13 The court also noted that the word
"shall" conveyed a different meaning than the word "may" and had a "more
coercive impact."14
In State v. Bostrom,15 the Supreme Court reviewed consolidated district
court cases in which the district court suppressed breath test results of drivers
who took the test and evidence of refusal by drivers who did not. Each driver
received all the warnings required by the implied consent statute. The drivers
who refused to take the test claimed that they also should have been warned that
they risked enhanced penalties if convicted of driving while intoxicated. The
district court agreed. The Supreme Court reversed, holding that the additional
warning was not required and noting that the statutory warning sufficiently alerted
drivers that a refusal could be used at any phase of a criminal trial.16
The drivers who took the test claimed that the officers' failure to warn them
about new administrative consequences of certain test results deprived the
drivers of the opportunity to make an informed decision about taking the test.
Again, the district court agreed, and the Supreme Court did not.17 The Supreme
13 Whitman, 105 Wn.2d at 285.
14 Whitman, 105 Wn.2d at 285-86.
15 127 Wn.2d 580, 902 P.2d 157 (1995).
16 Bostrom, 127 Wn.2d at 586.
17 Bostrom, 127 Wn.2d at 586-87.
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NO. 72260-3-1 / 9
Court's reasons for reversing the district court bear directly on the State's
position in this case.
The drivers supported their position with the Supreme Court's observation
in Whitman18 and Gonzales v. Department of Licensing19 that the legislature
intended the implied consent statute to provide drivers with an opportunity to
make an informed decision about taking a breath test.20 The court stated that
this observation did not mean that this purpose "was a requirement which
overrode the plain language of the statute."21 It then stated the applicable rule of
statutory construction: "When the language of a statute is unambiguous, courts
may not alter the statute's plain meaning by construction."22 The court noted that
consistent with this rule, "Washington case law has consistently required strict
adherence to the plain language of the implied consent statute."23
Significantly, the Bostrom opinion expressly disapproves of any
suggestion that Washington courts will approve warnings in language other than
that stated in the statute because the statutory language denies an arrested
18 Whitman, 105 Wn.2d at 281.
19 112 Wn.2d 890, 897, 774 P.2d 1187 (1989).
20 Bostrom, 127 Wn.2d at 586.
21 Bostrom, 127 Wn.2d at 586.
22 Bostrom, 127 Wn.2d at 586-87.
23 Bostrom, 127 Wn.2d at 587.
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NO. 72260-3-1/10
driver the opportunity to exercise an intelligent judgment.24 When considering
the State's arguments against suppression, we must follow Bostrom.
Officer Discretion To Modify Statutory Warning
We first address the State's claim that an officer has discretion to omit
from an implied consent warning a part of the statutory language that he decides
is irrelevant in a particular case. The State relies exclusively on State v.
Richardson25 to support this claim. It does not.
In Richardson, the court considered if the implied consent statute required
that an arresting officer advise a driver not only "of his right to have additional
tests administered by a qualified person of his own choosing, but also that he
advise that such a person may be a physician, qualified technician, chemist or
registered nurse."26 Although the statute did not require the second warning, the
drivers claimed they needed it to understand their rights. The court held
sufficient a warning in the language of the statute. The case did not involve any
claim that an officer can omit from a warning language the statute required. It
provides no support for the State's position.
The State's briefing does not address our Supreme Court's statement in
Whitman that the mandatory language of the implied consent statute meant "the
24 Bostrom, 127 Wn.2d at 587.
25 81 Wn.2d 111, 112, 499 P.2d 1264(1972).
26 Richardson, 81 Wn.2dat112.
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NO. 72260-3-1 /11
officer had no discretion with regard to the wording he used to warn the
accused."27 We must heed this observation. Additionally, the State cites no case
where a Washington appellate court has accepted the proposition that an
arresting officer has discretion to edit implied consent warnings as he deems
appropriate to the facts of a case.
Finally, as we noted earlier, in 2015 the legislature deleted from the
statutory warning the reference to THC concentration. The legislature engaged
in a meaningless amendment of the statute if an officer was not required to
include this reference before the amendment. Our decision gives meaning to the
amendment.
Conseguence of Warning Omission
We next consider the State's claim that "[Ijegally accurate warnings do not
trigger suppression, even if elements or adverse consequences are left out," so
long as the warnings given provide the driver with "'an opportunity to knowingly
and intelligently decide whether to take an evidentiary breath test.'"28
The State claims Bostrom and Grewal v. Department of Licensing29
support its claim that an officer may omit from implied consent warnings
elements of the statutory language or adverse consequences. We disagree.
27 Whitman, 105 Wn.2d at 285.
28 State v. Koch, 126 Wn. App. 589, 594, 103 P.3d 1280 (2005).
29 108 Wn. App. 815, 33 P.3d 94 (2001).
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In Bostrom. the court considered claims that an arresting officer must give
warnings in addition to those required by the implied consent statute. The court
rejected these claims, stating that it was "not free to graft onto the implied
consent statute any additional warnings not contained in the plain language of
that statute."30 The court never considered any claim that the arresting officer
could omit some part of the statutorily required warning.
In Grewal. the court considered a driver's claim that the arresting officer
must include in his warnings a description of the elements of the crime for which
he arrested the driver.31 The officer gave Grewal the implied consent warnings
required by statute and informed Grewal that he was arrested for violating RCW
46.61.503, "'[bjeing under 21 years of age and driving or being in actual physical
control of a motor vehicle after consuming alcohol.'"32 Grewal claimed this
warning was insufficient because the officer did not also tell Grewal that violation
of this provision required proof that his blood alcohol concentration was more
than 0.02, but less than 0.08.33
This court rejected Grewal's claim. It did not consider, much less decide,
if an arresting officer could omit any part of a warning required by the implied
consent statute. Once again, the State fails to distinguish between omitted
30 Bostrom, 127 Wn.2d at 587.
31 Grewal, 108 Wn. App. at 821.
32 Grewal, 108 Wn. App. at 821 (alteration in original).
33 Grewal, 108 Wn. App. at 821.
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NO. 72260-3-1/13
warnings required by statute and additional warnings not required by the express
language of the implied consent statute.
The State also contends that incomplete warnings should result in
suppression of breath test results only if the driver can demonstrate it prejudiced
him. The State relies on State v. Bartels,34 State v. Elkins,35 and Grewal.
In Bartels, the court considered the admissibility of breath tests given after
the arresting officer included additional language in the implied consent warning
not contained in the statute. The officer told Bartels about his right to an
additional test "'at your own expense."'36 The court held this additional language
improper.37 It remanded the consolidated cases before it to allow the State to
prove if any defendant had the financial ability to obtain an additional test at the
time of arrest.38 Unless the State proved this, the breath tests were to be
suppressed.
Thus, the court did not require the drivers receiving improper warnings to
prove prejudice. Instead, the State had to prove the improper warning was
"'harmless beyond a reasonable doubt.'"39 Additionally, in each case, the officer
34 112 Wn. 2d 882, 774 P.2d 1183 (1989).
35 152 Wn. App. 871, 220 P.3d 211 (2009).
36 Bartels. 112 Wn.2d at 884.
37 Bartels. 112 Wn.2d at 889.
38 Bartels. 112 Wn.2d at 890.
39 Bartels. 112 Wn.2d at 890 (quoting Chapman v. California. 386 U.S. 18,
24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)).
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gave the warning required by statute but added additional language not found in
the statute.40
Here, the State cannot prove that the incomplete warning was harmless.
As the superior court concluded, Robison smelled of marijuana when arrested
and admitted smoking marijuana to the arresting officer. Under these
circumstances, we cannot conclude beyond a reasonable doubt that Robison
would have agreed to take the breath test had he received the THC warning.
In Elkins, the court considered a claim that the trial court should not have
admitted evidence of Elkins's refusal to take the breath test because the statutory
implied consent warnings did not fully inform her of the consequences of refusing
the test. This court disagreed and held the refusal admissible. This court
specifically noted that the arresting officer had no authority to add warnings "'not
contained in the plain language of the implied consent statute.'"41 Elkins provides
no support for the State's position.
As previously explained, Grewal did not involve an incomplete implied
consent warning. It provides no support for the State's position.
The State's position ignores the requirement that it prove the facts
required for the admission of a breath test. The Supreme Court has interpreted
the implied consent statute to place "squarely on the State the burden of proving"
40 Bartels, 112 Wn.2d at 886-87.
41 Elkins, 152 Wn. App. at 877 (quoting Koch, 126 Wn. App. at 594).
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NO. 72260-3-1/15
implied consent warnings were given before a court admits test results.42 The
defendant has no obligation to present evidence or show prejudice.43
Because the State cannot show that an officer gave Robison all the
statutorily required warnings, it cannot establish the foundation required for
admission of the breath tests given to him. While cases have characterized this
result as suppression, when the State cannot show that it complied with the
implied consent statute, the State has failed to meet its burden of proof for
admission of evidence it offers to prove guilt. The defendant does not have to
show prejudice in this circumstance.
CONCLUSION
RCW 46.20.308 requires that before an officer gives a breath test to a
person reasonably believed to be driving under the influence, an officer must
provide that driver with certain warnings required by that statute. Here, the State
cannot show that an officer gave all the required warnings to Robison.
42 Morales, 173 Wn.2d at 575: see also Whitman. 105 Wn.2d at 283.
43 Morales. 173 Wn.2d at 575.
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Therefore, the superior court correctly decided that the breath tests given to
Robison were not admissible as evidence of his guilt. We affirm.
WE CONCUR:
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