State v. Murray

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SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Petitioner, ) No. 92930-1
)
v. )
)
JUDITH E. MURRAY, )
)
Respondent. )
)
)
STATE OF WASHINGTON, )
)
Petitioner, ) No. 92944-1
)
v. ) EnBanc
)
DARREN J. ROBISON, )
)
Respondent. ) Filed ····-- .d

)
)

GONZALEZ, J.- Washington State citizens decriminalized the recreational

use of cannabis by initiative. The main psychoactive compound in cannabis is
State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1

tetrahydrocannabinol (THC). The initiative established a legal limit for THC

concentration in the blood while driving and amended the implied consent statute

to direct officers to warn drivers of the legal consequences of a breath test that

revealed that concentration. Unfortunately, no breath test available at the time

measured THC concentrations in the blood. Our legislature has since amended the

implied consent statute so it no longer requires officers to give a warning that

suggests the current breath test will measure something it cannot. Before that

amendment, Judith Murray and Darren Robison were given implied consent

warnings that conformed to the ability ofthe breath test but not to the specific

language ofthe statute. We must decide whether the breath test results should be

suppressed because the THC warnings were not given. We find that for the breath

tests given, the warnings did not omit any relevant part ofthe statute, accurately

expressed the relevant parts ofthe statute, and were not misleading. Accordingly,

the warnings substantially complied with the implied consent statute and the test

results were properly admitted. We reverse the Court of Appeals and reinstate

Murray's and Robison's convictions.

FACTS
Robison. Late one night, a state trooper observed Robison speeding through

a restaurant parking lot toward a road. The trooper had to hit his brakes to avoid a

collision as Robison exited the parking lot. The trooper decided a traffic stop was

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State v. Murray and Robison, No. 92930-1 canso!. with No. 92944-1

in order. The trooper could smell both alcohol and cannabis coming from

Robison's car. Robison performed poorly on field sobriety tests and agreed to take

a roadside breath test. Based on the results, the officer arrested Robison for

suspected driving under the influence (DUI) and took him to a police station.

At the station, the trooper read Robison an implied consent warning from a

standard form's that did not mention the new statutory language concerning THC.

The form warning did warn Robison that he was subject to having his driver's

license suspended, revoked, or denied if the test revealed he was under the

influence of alcohol. The written implied consent form Robison signed said, in

relevant part:

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.

1. YOU ARE NOW ADVISED THAT YOU HAVE THE RIGHT TO
REFUSE THIS BREATH TEST; AND THAT IF YOU REFUSE:

(A) YOUR DRIVER'S LICENSE, PERMIT, OR PRIVILEGE TO
DRIVE WILL BE REVOKED OR DENIED BY THE
DEPARTMENT OF LICENSING FOR AT LEAST ONE YEAR;
AND

(B) YOUR REFUSAL TO SUBMIT TO THIS TEST MAY BE
USED IN A CRIMINAL TRIAL.

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
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State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1

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.
Robison Clerk's Papers at 109.

Robison moved to suppress the results of the breath test, arguing that the

implied consent warning was inadequate because it did not mirror the statutory

language regarding the consequences of a finding ofTHC in his blood. The

district court commissioner concluded that the warnings "accurately informed the

defendant that the result of a breath test would reveal the alcohol concentration of

his breath" and that "[i]t would be misleading to advise or imply to the defendant

that the breath test could obtain a THC reading." Id. at 23-24. Robison was found

guilty.

Robison appealed to the superior court, which reversed, concluding the

officer had no discretion to leave out a portion of the implied consent warning.

The Court of Appeals affirmed. State v. Robison, 192 Wn. App. 658,670-71,369

P.3d 188 (2016). We granted review.

Murray. Murray was pulled over while driving on Interstate 5 by a state

trooper after her car crossed the fog line several times. Murray's eyes were
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bloodshot and watery, her speech was slurred, her car smelled of intoxicants, and

she could not safely complete the field sobriety tests. She told the officer she had

had a few drinks and may have told him that she had taken a Xanax 1 earlier. She

also told the trooper that she had smoked cannabis earlier in the day for pain. She

initially declined a breath test. Believing she was impaired by alcohol and possibly

by the Xanax, the officer arrested Murray for suspected DUI. During the inventory

search, cannabis was found in her car.

At the Marysville Police Department, the trooper read Murray the implied

consent warnings for a breath test from a prepared form. The copy of the form in

the record appears to be identical to the one used with Robison. According to the

State's superior court brief, the trooper did not read the portions of the written

warning regarding people under age, people with commercial drivers' licenses, or

people driving commercial vehicles because these warnings were not applicable to

Murray. Like in Robison's case, the form (and thus the warning) did not include

the then-new statutory language regarding THC and the breath test given to

Murray could not test for THC. The breath test showed that the alcohol content in

Murray's blood was higher than is permitted to drive. Murray was charged with

DUI. The same district court commissioner who denied Robison's motion to

1"Xanax" is a brand name of a sedative used to treat anxiety and panic disorder. See Xanax,
DRUGS.COM (Sept. 28, 2016 10:22 AM), https://www.drugs.com/xanax.htm1
[https://perma.cc/S4 7 5-M7VT].
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State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1

suppress the breath test also denied Murray's motion on the grounds that the

inoperative THC warning would not have helped her make a knowing, intelligent,

and voluntary decision on whether to take the test. Specifically, the commissioner

analogized the THC warning to specific statutory warnings concerning underaged

drinking and commercial drivers' licenses that are routinely omitted when

irrelevant:

An arresting officer can easily and specifically determine whether a person
is under 21 years of age or a commercial driver; that officer can then omit
those warnings if they do not apply to a suspect. An arresting officer can
just as easily and specifically determine that a defendant being ask [sic] to
submit to a breath test is not being asked to take a test that can possibly
obtain a THC result; that officer can then, likewise, omit warnings that
clearly do not apply to a person being asked to take only a breath test.

Murray Clerk's Papers at 31. Accordingly, the commissioner concluded that

"[r]edacting warnings that are irrelevant to the decision before the defendant is

permissible." !d.

Murray appealed the commissioner's ruling to the superior court, which

found the breath test should have been suppressed and reversed. The Court of

Appeals affirmed, State v. Murray, noted at 192 Wn. App. 1040 (2016), and we

granted review and consolidated these two cases. State v. Murray, 185 Wn.2d

1033,377 P.3d 735 (2016).

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State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1

ANALYSIS
The validity of an implied consent warning is an issue of law reviewed de

novo. State v. Morales, 173 Wn.2d 560, 567, 269 P.3d 263 (2012) (citing City of

Bellevue v. Moffitt, 87 Wn. App. 144, 146, 940 P.2d 695 (1997)). A driver's

implied consent to a breath test for alcohol, and the arresting officer's duty to warn

of the potential consequences of the test, have been part of our statutory system for

decades. See LAWS OF 1969, ch. I §§ 1, 3 (Initiative 242; codified in part at RCW

46.20.308). We have previously observed that "[t]he choice to submit to or refuse

the test is not a constitutional right, but rather a matter of legislative grace." State

v. Bostrom, 127 Wn.2d 580, 590, 902 P.2d 157 (1995) (citing State v. Zwicker, 105

Wn.2d 228, 242, 713 P.2d 1101 (1986)). Both the legal consequences of driving

while intoxicated and the details and exactitude of the warning required by the

legislature have changed during that time. I d. at 583-85 (surveying history).

Initiative 502, which decriminalized the recreational use of cannabis, also

amended the implied consent statute. Former RCW 46.20.308(2) (2013); LAWS OF

2013, ch. 3, § 31 (codifYing Initiative 502). In relevant part, the amended implied

consent statute said:

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:

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State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1

(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.

LAWS OF 2013, ch. 3, § 31(2) (emphasis added) (formatting omitted).

In 2004, the legislature amended the implied consent statute to direct

officers to give warnings "in substantially the following language." LAws OF 2004,

ch. 68, § 2 (codified at RCW 46.20.308(2)). We have not yet had occasion to

consider this amendment. Historically, our analysis of the validity ofthe implied

consent warning given to a driver suspected ofDUI has been guided by two

considerations. First, we have considered whether the warning given "strict[ly]

adhere[ d) to the plain language of the implied consent statute." Bostrom, 127

Wn.2d at 587 (citing Connolly v. Dep't ofMotor Vehicles, 79 Wn.2d 500, 487 P.2d

1050 (1971)). In Connolly, for example, we reversed the Department of

Licensing's revocation of a driver's license for refusal to take a breath test because

the implied consent warning given did not inform the driver that he had the

statutory right to independent testing. 79 Wn.2d at 501, 504. Second, we have

considered the accused's "right under the implied consent statute to be afforded the

opportunity to make a knowing and intelligent decision whether to submit to an

evidentiary breath test." State v. Whitman County Dist. Court, 105 Wn.2d 278,

282, 714 P.2d 1183 (1986) (collecting cases).

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State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1

Murray and Robison ask us to hold that since some of the statutory language

was omitted, the tests must be suppressed. They rely heavily on our opinion in

Morales, where we recently found a breath test was improperly admitted. 173

Wn.2d at 578. But substantial compliance with the statutory warning was not

before us in Morales. Instead, relevantly, we were considering whether the State

had met its burden of establishing that the warning was actually read to the

defendant. !d. at 574-75. Because there was "'[s]omewhat of a language barrier'"

between the arresting officer and the defendant, the officer "enlisted the help of an

apparently Spanish-speaking hospital employee" to read the warning. Id. at 564

(alteration in original). The officer did not spealc Spanish, and the employee was

not brought in to lay the foundation that the warning was properly given. We held

that the officer's testimony alone did not lay an adequate evidentiary foundation

and so the tests were erroneously admitted. Id. at 576. We had no occasion to

consider whether any variance in the statutory language rendered the test

inadmissible.

We find no case, and none have been called to our attention, that require

officers to read an irrelevant statutory warning to a driver suspected ofDUI.

Instead, as acknowledged by counsel at oral argument, it has long been the

reasonable practice of arresting officers to omit warnings related to underage

drinking and commercial drivers' licenses when advising those over 21 or driving

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State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1

on a noncommercial license. Mmny and Robison ask us to treat the omission of

the statutory THC warning as reversible error. But they make no effort to show

that this type of statutory omission belongs in that category, and it is hard to

imagine the legislature intends us to treat it so. The fundamental purpose of

statutory interpretation is to ascertain and carry out the intent of the legislature

considering the statute as a whole. Dep 't ofEcology v. Campbell & Gwinn, LLC,

146 Wn.2d 1, 9-10,43 P.3d 4 (2002). Read as a whole, the legislature has made its

intent clear: the arresting officer does not have to perfectly incant the words ofthe

implied consent statute; he or she must simply give the accused a relevant warning

in substantially the statutory language. See RCW 46.20.308(2). Even before the

2004 amendment, the officer was not required to give irrelevant portions ofthe

statutory implied consent warning.

The substantial compliance doctrine helps illuminate what the statute

commands. "'Substantial compliance has been defined as actual compliance in

respect to the substance essential to every reasonable objective of [the] statute."'

Black v. Dep 't ofLabor &Indus., 131 Wn.2d 547, 552, 933 P.2d 1025 (1997)

(alteration in original) (quoting City of Seattle v. Pub. Emp 't Relations Comm 'n,

116 Wn.2d 923, 928, 809 P.2d 1377 (1991)). We have long held that the implied

consent statute as a whole has three objectives:

(1) to discourage individuals from driving an automobile while under the
influence of intoxicants, (2) to remove the driving privileges from those
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individuals disposed to driving while inebriated, and (3) to provide an
efficient means of gathering reliable evidence of intoxication or
nonintoxication.

Nowell v. Dep't of Motor Vehicles, 83Wn.2d 121, 124, 516 P.2d 205 (1973). Not

giving an irrelevant and potentially misleading THC warning does not further those

objectives. The implied consent warning itself is there to give the accused "the

opportunity to make a knowing and intelligent decision whether to submit to an

evidentiary breath test." Whitman County, 105 Wn.2d at 282. Omitting the THC

warning is consistent with this objective too; being told of the consequences of a

result the test does not give does not help a driver make an informed choice. 2

Taken together, we conclude that an implied consent warning substantially

complies with the statute when it (1) does not omit any relevant portion of the

statute, (2) accurately expresses the relevant portions of the statute, and (3) is not

otherwise misleading. We find the warnings given to Murray and Robison meet

this standard. As the district court commissioner noted, the breath test could not

ascertain THC levels in the blood. Therefore, the troopers did not omit any

relevant portion of the statute by not mentioning THC any more than a trooper

omits a relevant portion of the statute by failing to warn a 50-year-old of the

2
Of course, we would be in a different situation if in fact the test did measure THC concentration
in the blood.
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consequences of underage drinking. The warnings given accurately expressed the

relevant portions of the statute and were not otherwise misleading.

CONCLUSION
We conclude that Murray and Robison both received adequate warnings.

We reverse the Court of Appeals and reinstate the district court's decisions finding

Murray and Robison guilty ofDUI.

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WE CONCUR:

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