State v. Moore

483 P.2d 630, 79 Wash. 2d 51, 1971 Wash. LEXIS 578

Opinions

Finley, J.

The constitutionality of the Washington “Tm- plied Consent Law” is here before this court for the first time. The law — adopted by the electorate as Initiative Measure No. 242 on November 5, 1968 — ¹ requires motorists suspected of driving while intoxicated to submit to a chemical test of blood alcohol content or face revocation of their license to drive.

The appellant stands convicted in the King County Superior Court of driving while intoxicated. We have accepted the direct appeal here because of the fundamental issues requiring ultimate determination by this court. In affirming appellant’s conviction, we uphold the constitutionality of the “Implied Consent Law” to the extent its constitutionality is presented in this appeal.

The fact pattern of the case can be summarized as follows: Appellant, after driving his automobile to Tacoma to attend a meeting, discovered the meeting had been canceled. He then spent some time in a Tacoma tavern, where he allegedly consumed two beers. On the return trip to Seattle, appellant was stopped on the freeway by a state patrolman. The officer testified that appellant’s vehicle partially crossed over lane dividers into the adjacent lane five or six times. He further testified that the appellant was unsteady on his feet, had a strong odor of intoxicants, spoke in a “slurred, hard to understand and disoriented” manner, and performed two sobriety tests poorly. Appellant contends¹ that his conduct resulted in part from physical and speech disabilities.

Appellant was placed under arrest and taken to the local office of the State Patrol. There, he was advised of his “rights”² under the “Implied Consent Law,” and was informed that if he refused to take a breathalyzer test his license to operate a motor vehicle would be revoked. Appellant consented to the test. This showed his blood alcohol level to be 0.23 per cent. Under the provisions of RCW 46.61.506, an alcohol level of 0.10 per cent, or more, raises a presumption of intoxication.

In seeking reversal of his conviction appellant advances three arguments: (1) The results of the breathalyzer test were inadmissible as evidence because (a) the “Implied Consent Law” is unconstitutional, and (b) the breathalyzer test was improperly administered; (2) even if the results of the breathalyzer test were admissible, they were insufficient to sustain a conviction; and (3) the evidence, exclusive of the results of the breathalyzer test, was insufficient to sustain a conviction.

The intoxicated driver is undoubtedly an increasing public menace of alarming proportions. Why we, as a modem, socially conscious people, have not taken more stringent and more effective measures to reduce the highway death toll is indeed paradoxical, to say the least. The relationship of alcohol to vehicle fatalities was recognized as early as 1904 — 5 years after the nation’s first fatal motor vehicle crash. Reliable research indicates that, presently, intoxication is a factor in at least one half of all motor vehicle fatalities.³ See U. S. Department of Transportation, Alcohol and Highway Safety — A Report to the Congress from the Secretary of Transportation 11-16 (August 1968); National Safety Council, Accident Facts 52 (1969 ed.); Accident Research (W. Haddon, E. Suchman & D. Klein eds. 1964). In an effort to control or reduce the drunk-driver hazard to highway safety, a large majority of states has enacted laws authorizing chemical tests to determine blood alcohol content in drivers suspected of being under the influence of intoxicating liquor. These laws have almost uniformly withstood various constitutional attacks. See, e.g., People v. Sudduth, 65 Cal. 2d 543, 421 P.2d 401, 55 Cal. Rptr. 393 (1966); Anderson v. Macduff, 208 Misc. 271, 143 N.Y.S.2d 257 (1955); Annot, 88 A.L.R.2d 1064 (1962).

Our statute, which generally parallels language of the Uniform Vehicle Code, does not differ materially from those found in most states. See Uniform Vehicle Code and Model Traffic Ordinance § 6-205.1 (rev. 1968); 45 Wash. L. Rev. 656 (1970). RCW 46.20.308 provides in relevant part

Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of RCW 46.61.506, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his 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. . . . Unless the person to be tested is unconscious, the chemical test administered shall be of his breath only.

Footnotes

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[4]

In attacking the constitutionality of the “Implied Consent Law,” appellant first contends that the law cannot be sustained as a valid exercise of the state’s police power because it will not curb the drunken driver. The appellant’s reasoning is that the law is ineffective because most serious traffic accidents' are caused by alcoholic drivers who, because they cannot resist their desire for alcohol, will not be deterred by the law. The reasoning, while ingenious, must fail. We have long held, and recently reiterated, that

In prescribing the police power, all that Is constitutionally required of the legislature is that a state of facts can reasonably be conceived to exist which would justify the legislation. If the courts can reasonably conceive of such a state of facts, they must presume that such facts actually did exist and that the statute being tested was-passed with reference to them.

State v. Laitinen, 77 Wn.2d 130, 134, 459 P.2d 789 (1989). We think the legislature could reasonably assume that the public welfare and safety is substantially affected by all intoxicated drivers, and that the requirement of submission to chemical tests would significantly reduce the menace of the drunken driver. That our law will not deter all drunk drivers is lamentable, but this fact does not render it an unconstitutional exercise of the state’s police power.

Appellant next contends that the “Implied Consent Law” is unconstitutional because it compels an accused to give evidence against himself in violation of his privilege against self-incrimination. It is not disputed that the federally guaranteed privilege against self-incrimination embodied in the fifth amendment to the United States Constitution extends only to testimonial or communicative evidence. The privilege does not protect an accused from being the source of real or physical evidence against himself. Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966); United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). Appellant does not contend otherwise. Rather, he urges that the “Implied Consent Law” violates his privilege against self-incrimination guaranteed by article 1, section 9 of the Washington State Constitution. That provision provides

No person shall be compelled in any criminal case to give evidence against himself, . . .

(Italics ours.) The fifth amendment to the United States Constitution provides

. . . nor shall [any person] be compelled in any criminal case to be a witness against himself, . . .

(Italics ours.)

Appellant presents an articulate argument for the proposition that we are not bound to place the same interpretation on our state constitutional privilege against self-incrimination as has been placed on that contained in the United States Constitution. He reasons that our provision, which is worded in terms of giving evidence, should be interpreted by this court to include physical evidence because our provision is meant to grant a broader protection than that granted by the Fifth Amendment. We are not persuaded, however, that the difference in language between the two constitutional provisions is determinative. While it may be granted that the words “evidence” and “witness” are not synonymous in terms of standard dictionary definition, this court must interpret specific words of the state constitution in consonance with the principles of law which they are used to express. In defining the parameters of the privilege against self-incrimination, the origins of this fundamental civil liberty are instructive:

The privilege against self-incrimination is of ancient origin and when incorporated in the American constitution was hallowed by the traditions of the unremitting struggle in England against the tyranny of the Crown. The maxim nemo tenetur seipsum prodere (no one is bound to accuse himself) arose as a reaction against the ecclesiastical practice of inquisition, where the accused was required ex officio to take an oath to answer truly under inquisitorial interrogation.

E. Dumbauld, The Bill of Rights, and What it Means Today 77 (1957).

Schmerber recognizes the variance in wording between various state provisions and the federal provision:

Many state constitutions, including those of most of the original Colonies, phrase the privilege in terms of compelling a person to give “evidence” against himself. But our decision cannot turn on the Fifth Amendment’s use of the word “witness.” “[A]s the manifest purpose of the constitutional provisions, both of the States and of the United States, is to prohibit the compelling of testimony of a seff-incriminating kind from a party or a witness, the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guarantees, however differently worded, should have as far as possible the same interpretation . . . .” Counselman v. Hitchcock, 142 U. S. 547, 584-585. 8 Wigmore, Evidence § 2252 (McNaughton rev. 1961).

Schmerber, 384 U.S. at 761-62 n.6. Where language of our state constitution is similar to that of the federal constitution, we have held that the language of the state constitutional provision should receive the same definition and interpretation as that which has been given to the federal provision by the United States Supreme Court. State v. Schoel, 54 Wn.2d 388, 341 P.2d 481 (1959).

This court has recognized the Schmerber distinction between physical and testimonial evidence on several occasions. Mercer Island v. Walker, 76 Wn.2d 607, 458 P.2d 274 (1969); State v. Duckett, 73 Wn.2d 692, 440 P.2d 485 (1968); State v. West, 70 Wn.2d 751, 424 P.2d 1014 (1967). The Washington constitutional provision against self-incrimination envisions the same guarantee as that provided in the federal constitution. There is no compelling justification for its expansion. The protection of both constitutional provisions extends only to testimonial or communicative evidence. We therefore hold that the “Implied Consent Law” does not compel an accused person to give evidence against himself within the meaning of article 1, section 9 of our state constitution.

Appellant’s final attack upon the constitutionality of the “Implied Consent Law” centers on that provision which purports impliedly to waive an accused’s privilege against self-incrimination. RCW 46.20.308 provides that all drivers upon this state’s highways “shall be deemed to have given consent ... to a chemical test ...” Appellant argues that the provision cannot be sustained because the waiver of a constitutional right cannot be implied; rather, it must be voluntary. Garrity v. New Jersey, 385 U.S. 493, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967). We find no merit in this contention. In the instant case, appellant voluntarily consented to the performance of a breathalyzer test. Even if he had not so consented, or if it can be argued that his consent was given only to avoid the sanction imposed for nonconsent, the result would not be different. The law’s constitutionality need not be sustained by reference to its “implied consent” provision. We prefer to base our decision on other grounds, and have done so. Whether an accused’s consent to the chemical test be voluntary or involuntary, the law, with its rights afforded the accused, is constitutionally sustainable as a reasonable exercise of the state’s police power, having as its purpose the reduction of traffic carnage occasioned by the inebriated driver. Even if we were to adopt defendant’s view that the law could not be sustained on the basis of its “implied consent” rationale, this court will construe a statute, where possible, so as to render it valid. In re Flynn, 52 Wn.2d 589, 328 P.2d 150 (1958); Household Fin. Corp. v. State, 40 Wn.2d 451, 244 P.2d 260 (1952).

Appellant contends that the results of his breathalyzer test were inadmissible as evidence on the ground that the test was administered in an improper manner. Although certain evidence is in conflict as to whether defendant may have smoked a cigar immediately prior to performing the test, the legal import of this fact, if true, upon the results of the breathalyzer test is not substantiated in the record. Appellant further contends that even if the results of the breathalyzer test were admissible, they were insufficient to sustain a conviction because the test was given 1% hours after he had been stopped, by which time more alcohol had been absorbed into his blood stream. We find nothing in the record to substantiate either of appellant’s claims that the breathalyzer test was not performed in accordance with the requirements prescribed in State v. Baker, 56 Wn.2d 846, 355 P.2d 806 (1960).

In view of our holding, it is not necessary to discuss appellant’s final contention that evidence exclusive of the results of the breathalyzer test was insufficient to sustain his conviction.

The judgment of the trial court is affirmed.

Hamilton, C.J., Hunter, Hale, Neill, and Stafford, JJ., concur.

1

Codified as RCW 46.20.092, 46.20.308, 46.20.311, 46.20.911 and 46.61.506.

2

Suspects are given the right to refuse a chemical test and the right to have additional tests performed by any qualified person of their choosing. RCW 46.20.308.

3

In 1968, 56,400 persons were killed on our nation’s highways; 929 persons lost their lives on Washington’s highways. National Safety Council, Accident Facts (1970 ed.).

4RCW 46.20.308 further provides that any person who refuses to submit to a chemical test, after being informed that such refusal will result in the revocation or denial of his privilege to drive, shall not be given a test. Such person’s license or permit to drive shall be revoked. The driver may request a hearing before the Department of Motor Vehicles, and may appeal any decision there reached to the superior court. Since the appellant in the instant case submitted to the breathalyzer test given, our opinion does not reach any question involving the statute’s license revocation provisions.