State v. Avery

103 Wash. App. 527
CourtCourt of Appeals of Washington
DecidedNovember 22, 2000
DocketNo. 23643-5-II
StatusPublished
Cited by19 cases

This text of 103 Wash. App. 527 (State v. Avery) 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
State v. Avery, 103 Wash. App. 527 (Wash. Ct. App. 2000).

Opinion

Seinfeld, J.

Christopher Avery appeals his convictions of vehicular homicide and failure to remain at the scene of an injury accident. He challenges the trial court’s denial of his motion to suppress blood test results, arguing that the police illegally drew his blood without first advising him of the “implied consent” warnings set forth in RCW 46.20.308. We find that the officers lacked reasonable grounds to believe Avery had been driving under the influence of alcohol and, therefore, the warnings were not necessary. Thus, we affirm.

[530]*530FACTS1

In June 1997, at approximately 6 a.m., Avery’s automobile drifted toward the curb of a Tacoma street and struck pedestrian Darryl Jacobson, who died as a result of his injuries. Immediately afterwards, Avery sped away from the scene.

A witness followed Avery and observed him speeding and running traffic lights. Avery eventually stopped and police officers Lowry and Larkin arrived shortly thereafter. They removed him from his vehicle and read him his Miranda2 warnings.

Avery told the officers that he had consumed a couple of drinks at 2 a.m., that he had swerved to avoid another car, and that the other car had struck his vehicle. The officers noticed that Avery’s car had a broken turn signal lens, that threads of clothing were imbedded in the broken windshield, and that the radio antenna was bent.

Both officers smelled intoxicants on Avery’s breath but neither officer noticed any other signs of intoxication. They did not believe that Avery was under the influence of intoxicants or that there was probable cause to arrest him for vehicular homicide. The officers did arrest Avery for failure to remain at an injury accident.

At the police substation, Officer Skola and Sergeant Strickland, both experts in recognizing persons under the influence of intoxicants, interviewed Avery. According to their testimony, neither officer detected the odor of intoxicants. But Skola’s written report notes that Avery had a faint odor of intoxicants and a slight impairment. Skola also noted that Avery’s attitude was cooperative, his coordination was good, his clothes were orderly, his eyes and face were normal, and his speech was good.

Officers observed Avery falling asleep on several occasions but Avery’s father told them that Avery held two jobs [531]*531and was extremely tired. Both Skola and Strickland knew that the victim had died but neither officer believed that they had probable cause to arrest Avery for vehicular homicide and he was not then arrested for that offense. But Sergeant Sheehan, who was also at the substation, believed Avery was possibly intoxicated.

Strickland asked Avery if he would submit to a voluntary blood test to determine his blood alcohol level. Avery consented. The officers readvised Avery of his Miranda rights and his right to refuse the blood test. They also had him read and sign a voluntary consent form; the form did not contain the implied consent warnings. After a technician drew the blood, Avery was released.

Avery’s blood sample indicated a blood alcohol level of .17g/100 ml. With this information the State charged Avery with vehicular homicide, RCW 46.61.520, and failure to remain at an injury accident, RCW 46.52.020(1).

Avery moved to suppress the results of the blood test, arguing that the officers had failed to give him the implied consent warnings required under RCW 46.20.308 before taking his blood. The trial court denied the motion, finding that the implied consent statute, including the duty to provide the warnings, is not triggered unless the suspect is under arrest for an alcohol-related driving offense.

ANALYSIS

Avery argues that the trial court erred in refusing to suppress the blood test results because, under the implied consent statute, RCW 46.20.308, the arresting officers had reasonable grounds to believe he had been driving while under the influence of alcohol. Thus, he contends, the officers had the duty to inform him of his rights under that statute. Avery also contends the police impermissibly performed a blood, rather than a breath, test.

The State argues, and the trial court agreed, that the implied consent warnings were not required because Avery had not been arrested for an alcohol-related offense. The [532]*532State also asserts that a suspect may voluntarily consent to testing outside the implied consent statutory scheme.

I. Implied Consent Statute — RCW 46.20.308

We conduct a de novo review of the trial court’s application of RCW 46.20.308. State v. Azpitarte, 140 Wn. 2d 138, 140-41, 995 P.2d 31 (2000). When interpreting a statute, we strive to ascertain and give effect to the legislature’s intent. State v. Sweet, 138 Wn.2d 466, 477-78, 980 P.2d 1223 (1999). If the language of the statute is unambiguous, we rely solely on the statutory language. Azpitarte, 140 Wn.2d at 142. See also W. Petroleum Imps., Inc. v. Friedt, 127 Wn.2d 420, 423-24, 899 P.2d 792 (1995) (noting general statutory construction rules apply to initiatives and meaning is construed as “average informed lay voter” would read language). A statute’s failure to define one of its terms does not make the statute ambiguous; absent any contrary legislative intent, we give words their “plain and ordinary meaning.” Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 920-21, 969 P.2d 75 (1998).

The people adopted the implied consent statute by initiative in the 1968 general election. Subsequently, the legislature has amended it numerous times but the language at issue in this case has not changed significantly since 1968.3 At the time of Avery’s arrest in June 1997, the implied consent statute stated, in relevant part:

Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW [533]*53346.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcohol concentration or presence of any drug in his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or any drug or was in violation of RCW 46.61.503

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Bluebook (online)
103 Wash. App. 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-avery-washctapp-2000.