Jury v. State, Dept. of Licensing

60 P.3d 615
CourtCourt of Appeals of Washington
DecidedDecember 26, 2002
Docket20462-6-III, 20580-1-III
StatusPublished
Cited by6 cases

This text of 60 P.3d 615 (Jury v. State, Dept. of Licensing) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jury v. State, Dept. of Licensing, 60 P.3d 615 (Wash. Ct. App. 2002).

Opinion

60 P.3d 615 (2002)
114 Wash.App. 726

Matthew A. JURY, Respondent,
v.
STATE of Washington, DEPARTMENT OF LICENSING, Appellant.
James Richard Bourquin, Respondent,
v.
State of Washington, Department of Licensing, Appellant.

Nos. 20462-6-III, 20580-1-III.

Court of Appeals of Washington, Division 3, Panel Nine.

December 26, 2002.

*616 Timothy S. Hamill, Assistant Attorney General, Yakima, WA, for Appellant.

Albert A. Rinaldi, Jr., Attorney at Law, Seattle, WA, for Respondents.

SWEENEY, J.

Washington's implied consent law prescribes that a driver impliedly consents to take a breath or blood test as a condition of the privilege of driving. RCW 46.20.308(1). But it also requires that the arresting officer inform the driver of his or her right to refuse a breath test, the consequences of refusing the breath test, and other licensing action which may follow criminal conviction. RCW 46.20.308(2). These required warnings are set out in the statute. RCW 46.20.308(2). Here, the Washington State Patrol standard warnings varied from those set out in the statute by placement of a semicolon. The question before us is whether the warnings nonetheless permitted these drivers to make a knowing and informed decision on whether to take or refuse to take the breath test. We conclude that they did and therefore reverse the trial judge's decision to the contrary.

FACTS

Both Matthew A. Jury and James R. Bourquin[1] were stopped by police. One had been speeding; one had driven erratically. Both showed the usual physical signs following drinking—smell of intoxicants, bloodshot eyes, flushed face, and the like.

The implied consent statute required the officers to

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 by RCW 46.61.506 [option to take a blood test or breath test]. The officer shall warn the driver that:
(a) His or her license, permit, or privilege to drive will be revoked or denied if he or she refuses to submit to the test;
(b) His or her license, permit, or privilege to drive will be suspended, revoked, or denied if the test is administered and the test indicates the alcohol concentration of the person's breath or blood is 0.08 or more, in the case of a person age twenty-one or over, or in violation of RCW 46.61.502, 46.61.503, or 46.61.504 in the case of a person under age twenty-one; and
(c) His or her refusal to take the test may be used in a criminal trial.

RCW 46.20.308(2).

Here, each of the arresting officers used a standard state patrol form which provided in part:

You are further advised that your license, permit, or privilege to drive will be suspended, revoked, or denied if the test is administered and the test indicates the alcohol concentration of your breath is 0.08 or more, if you are age 21 or over, or 0.02 or more if you are under age 21; or if you are in violation of RCW 46.61.502, 46.61.503 or 46.61.504.

Clerk's Paper for Jury (CPJ) at 16; Clerk's Paper for Bourquin (CPB) at 43 (emphasis added).

Both men elected to take the test. And both men blew in excess of 0.08. Both men are also over 21. Both received a notice of intent to suspend their licenses from the Department of Licensing. Both requested administrative hearings.

At the administrative hearings, both argued that the semicolon preceding the clause "or if you are in violation of RCW 46.61.502" *617 rendered the warning misleading, and therefore invalid. Their argument was essentially that the phrase set off by the semicolon did not relate strictly to those under 21 as the statute intended. And the net effect was that it related to everybody. So they stood to lose their license regardless of their breath results. The hearing examiner rejected that interpretation.

Both appealed to superior court. The superior court judge ruled that the warnings were misleading. Therefore, neither Mr. Jury nor Mr. Bourquin could make a knowing and informed decision.

In another ruling related only to Mr. Jury's license suspension, the court also held that a laser gun used by the arresting officer to estimate speed could not provide the basis for the officer's estimate of speed because it had not been properly, scientifically validated. The Department of Licensing appeals both rulings.

DISCUSSION

STANDARD OF REVIEW AND CONSTRUCTION

The legal sufficiency of implied consent warnings is a question of law. And so our review is de novo. Pattison v. Dep't of Licensing, 112 Wash.App. 670, 673, 50 P.3d 295 (2002). The warnings must permit someone of normal intelligence to understand the consequences of his or her actions. State v. Whitman County Dist. Court, 105 Wash.2d 278, 286, 714 P.2d 1183 (1986). But the driver's decision to take or refuse the breath test need not be knowingly and intelligently made. Medcalf v. Dep't of Licensing, 133 Wash.2d 290, 299, 944 P.2d 1014 (1997). The test here then is not whether Mr. Jury or Mr. Bourquin understood these warnings. The warnings must only permit the opportunity for a knowing and intelligent decision. Gonzales v. Dep't of Licensing, 112 Wash.2d 890, 897, 774 P.2d 1187 (1989). And the warnings need not exactly match the statutory language, just so long as the meaning implied or conveyed is not different from that required by the statute. Town of Clyde Hill v. Rodriguez, 65 Wash.App. 778, 785-86, 831 P.2d 149 (1992).

ADEQUACY OF WARNINGS

The primary problem urged here on appeal by Mr. Jury and Mr. Bourquin is the same one urged at the trial court. That is, the last clause "or if you are in violation of RCW 46.61.502, 46.61.503 or 46.61.504" was misleading to the extent that they were unable to make a knowing and intelligent decision on the breath test.

Their argument rests on two assertions.

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Bluebook (online)
60 P.3d 615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jury-v-state-dept-of-licensing-washctapp-2002.