131 Wash. 2d 63 | Wash. | 1997
The Prosecuting Attorney of Spokane County, for the State of Washington, seeks review of an opinion of the Court of Appeals, Division III,
The questions presented are: (1) whether, whenever a driver has been involved in a serious automobile accident, the implied consent statute, RCW 46.20.308, must be invoked and the driver advised by a police officer of that person’s statutory right to additional testing, or whether a police officer may obtain voluntary consent from the driver to a blood alcohol test independent of the implied consent statute; and (2) whether the driver was under arrest when the police officer gave the driver "specific instructions not to leave” or whether there was a de facto arrest which required reading of implied consent warnings.
STATEMENT OF FACTS
On the night of December 1, 1993 at approximately 11:40 p.m. Respondent James D. Rivard was the driver of an automobile which struck skateboard rider James Mec-sko in Spokane.
Respondent Rivard was near the scene of the accident at a telephone booth (from which he had called his father) when Officer Olsen first contacted him. As part of the investigation, Officer Olsen asked Respondent some preliminary questions. Shortly after midnight in the early morning of December 2, 1993 Officer Olsen read to Re
During the on-site investigation, Sergeant Stanley C. McGhee took Officer Olsen aside and told him "we need to have a blood test.”
Respondent James D. Rivard was charged in the Spokane County Superior Court on February 8, 1994 with vehicular homicide under RCW 46.61.520, the Information reading:
Comes now the Prosecuting Attorney in and for Spokane County, Washington, and charges the defendants) with the following crime(s): VEHICULAR HOMICIDE, committed as follows: That the defendant, JAMES DOUGLAS RIVARD, in Spokane County, Washington, on or about December 1, 1993, operated a motor vehicle while under the influence of or affected by intoxicating liquor and any drug, and in a reckless manner, and with disregard for the safety of others, and as a proximate result of operating said vehicle in that manner or condition did cause injuries to James Mecsko, who died on or about December 1, 1993, as a proximate result of the injuries received!.]
si Steven J. Kinn_ _12984
Deputy Prosecuting Attorney WA St. Bar ID #[19 ]
On September 23, 1994 the Honorable Kathleen M. O’Connor, after a hearing signed an order granting Respondent’s motion to suppress the results of the blood alcohol test.
The State of Washington (Petitioner) sought review in the Court of Appeals of the order of the Superior Court suppressing the blood test results.
DISCUSSION
Implied Consent Statute
The implied consent statute, former RCW 46.20.308,
(1) Any person who operates a motor vehicle within this*69 state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcoholic content of 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.
(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor. However, in those instances where: (a) The person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample; or (b) as a result of a traffic accident the person is being treated for a medical condition in a hospital, clinic, doctor’s office, or other similar facility in which a breath testing instrument is not present, a blood test shall be administered by a qualified person as provided in RCW 46.61.506(4). The officer shall 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 in RCW 46.61.506. The officer shall warn the driver that (a) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test, and (b) that his or her refusal to take the test may be used in a criminal trial.
(3) Except as provided in this section, the test administered shall be of the breath only. If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which another person has been injured and there is reasonable likelihood that such other person may die as a result of injuries sustained in the accident, a breath or blood test may be administered without the consent of the individual so arrested.
(Emphasis added.)
The facts in this case are fairly similar to those in State v. Wetherell.
The basic question in Wetherell was whether the statute applied to motor vehicle drivers not under arrest for any offense at the time a law enforcement request was made for a sobriety test.
Unlike the defendants in Wetherell, Respondent Rivard was read his Miranda rights prior to the request by the officer for the blood test. He was asked whether he. understood his rights. He signed the Miranda form and the waiver for the blood test. At no time did he ask to speak with an attorney. Respondent consulted with his father before agreeing to submit to the blood test.
In response to Petitioner’s argument, Respondent argues that the court should affirm the suppression motion because the cases cited by Petitioner are not persuasive. Respondent correctly states that State v. Wetherell was decided prior to the 1975 amendment of the statute which provided that "a breath or blood test may be administered without consent of the individual so arrested.”
Petitioner cites State v. Entzel
In further support of his position, Respondent cites a number of cases. He cites United States v. Wanless
In all the other cases cited by Respondent the defendants were under arrest at the time of the blood tests. In State v. Holcomb the defendant was arrested at the scene, he consented to the test, and the officer then gave him part of the statutory implied consent warning, but not the part concerning availability of an independent test.
In its decision in this case the Court of Appeals focused
The Court of Appeals also cited State v. Turpin
The statement by the Court of Appeals that Respondent "should not lose . . . [the implied consent warning] right because he cooperated and was not arrested” is not consistent with the implied consent statute itself and our prior decisions.
What Constitutes an Arrest
The question arises whether there was seizure of the person when Officer Olsen gave Respondent Rivard "specific instructions not to leave” amounting to an unlawful detention or a de facto arrest requiring reading of the implied consent warnings. Citing cases, Respondent argues he was seized at the time of the incident and that if the court finds he was unlawfully detained, evidence of the results of the blood test must be suppressed.
Respondent also argues that the officers treated him for all practical purposes as if he had formally been arrested for vehicular homicide.
In his affidavit Respondent Rivard stated, "I was not arrested.”
The record before this court also supports the conclusion that Respondent was not under arrest at the scene of the accident. He was not subjected to restraints commonly associated with an arrest. He was initially approached by Officer Olsen in a public area near a telephone booth near the scene of the accident. While he was asked not to leave, he was not physically apprehended, restrained, handcuffed, placed in the police vehicle, nor driven to the police station. At no point did any of the officers draw their weapons. Indeed Respondent telephoned his father and was able to consult with him and have him present during his conversations with Officer Olsen. The only event which might conceivably be associated with an arrest was that Respondent was read his Miranda rights. That event alone does not constitute an arrest.
Respondent also cited cases to support an argument that the evidence seized should be suppressed if there was an unlawful detention.
SUMMARY AND CONCLUSIONS
The Court of Appeals was in error in affirming the decision of the Spokane County Superior Court suppressing the results of the blood test administered to Respondent James D. Rivard after he voluntarily submitted to it. Law enforcement officers were not required to advise him of his rights under former RCW 46.20.308, the implied
In 1973 this court decided State v. Wetherell. After that decision the Legislature in 1975 made revisions to RCW 46.20.308.
The argument is made that Respondent did not actually consent because he was not fully advised of his rights under the implied consent statute. There is nothing in the record to indicate his consent was coerced or was otherwise involuntary. Because the implied consent warning applies only when the person is under arrest, the fact the officer did not give the warning is of no consequence because Respondent was not under arrest.
Deciding whether Respondent was under arrest when he was asked to submit to the blood test was basic to determining whether he should have been given the implied consent warnings. Although the issue was not previously raised by either Petitioner or Respondent, it is evident from the record that Respondent was not under arrest when he was asked to submit to the blood alcohol test. Arrest is a prerequisite for application of the implied consent statute, RCW 46.20.308.
We reverse the Court of Appeals, Division III, which affirmed an order of the Spokane County Superior Court suppressing the results of a blood alcohol test administered
Durham, C.J., and Dolliver, Guy, Johnson, Madsen, Alexander, Talmadge, and Sanders, JJ., concur.
State v. Rivard, 80 Wn. App. 633, 910 P.2d 520 (1996).
The record does not indicate the actual time between the accident and the blood test. However, Miranda rights were read to Respondent shortly after midnight in the early morning of December 2, 1993. The officer wrote his report at 3:00 a.m. on December 2, 1993. Transcript of Defense Mot. to Suppress and 3.5 Hearing at 12, 28, and 30.
Transcript of Defense Mot. to Suppress and 3.5 Hearing at 29 and 31. No. 94-1-00132-0, Findings of Fact and Order Re: Mot. to Suppress Blood Test Results at 1.
Findings of Fact and Order Re: Mot. to Suppress Blood Test Results at 1.
Id. at 1. The record does not indicate the exact time and date of Mr. Mecsko’s death. However, he was alive when he was transported by ambulance from the accident scene to the hospital. Transcript of Defense Mot. to Suppress and 3.5 Hearing at 28.
Commonly referred to as Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966). Transcript of Defense Mot. to Suppress and 3.5 Hearing at 12-13.
Transcript of Defense Mot. to Suppress and 3.5 Hearing at 12-14.
Id. at 19-21. It is not clear from the record whether Respondent’s father arrived at the scene of the accident prior to or immediately after Miranda rights were read to Respondent. However, the father was present during conversations between Respondent and Officer Olsen near the scene of the accident and at the hospital.
Id. at 16, 17, 40.
No. 94-1-00132-0, Findings of Fact and Order Re: Mot. to Suppress Blood Test Results at 1.
Id. at 2.
Id.
Id.
Id.
Transcript of Defense Mot. to Suppress and 3.5 Hearing at 38.
Clerk’s Papers at 13.
Number 94-1-00132-0, Defendant’s Mot. to Suppress, Court’s Oral Decision, at 19.
No. 94-1-00132-0, Findings of Fact and Order Re: Mot. to Suppress Blood Test Results at 2.
No. 94-1-00132-0, Information.
No. 94-1-00132-0, Findings of Fact and Order Re: Mot. to Suppress Blood Test Results at 3.
Id. at 1.
No. 14336-8-III, Mot. to Modify at 2.
No. 94100132-0, Minute Record, Clerk’s Papers at 15.
Rivard, 80 Wn. App. at 634.
No. 14336-8-III, Commissioner’s Ruling.
Id.
No. 14336-8-III, Order Granting Petitioner’s Mot. to Modify Commr’s Ruling of Sept. 27, 1994.
No. 14336-8-III, Div. Three, Panel Pour; State v. Rivard, 80 Wn. App. 633, 910 P.2d 520 (1996).
In 1995 the legislature made some changes to the statute. Changes in sections (1), (2), and (3) made the statute applicable to drugs, as well as alcohol, and lowered the level of alcohol concentration for persons under twenty-one years of age. Laws 1995, ch. 332, § 1.
Br. of Pet’r at 5.
Id. at 5, 10.
82 Wn.2d 865, 514 P.2d 1069 (1973).
There is some uncertainty from the record in this case whether a breath test was offered Respondent Rivard. Officer Olsen testified he indicated only a blood test. Transcript of Defense Mot. to Suppress and 3.5 Hearing at 42, 48. The affidavits of Respondent Rivard and his father indicate a choice was given between a blood test and a breath test. Affidavits July 1, 1994.
Wetherell, 82 Wn.2d at 866.
Id.
Id. at 869.
Id., at 870-71. New York, Nebraska, Wisconsin, Vermont, Connecticut, Utah, Florida, and South Dakota.
Id. at 871.
Id.
Laws of 1975, 1st Ex. Sess., ch. 287, § 4; Br. of Resp’t at 4.
116 Wn.2d 435, 805 P.2d 228 (1991).
Br. of Pet’r at 8.
Br. of Resp’t at 7.
882 F.2d 1459 (9th Cir. 1989).
Br. of Resp’t at 6-7.
31 Wn. App. 398, 642 P.2d 407 (1982).
94 Wn.2d 820, 620 P.2d 990 (1980).
Id. at 822.
Id.
Black’s Law Dictionary 1575 (6th ed. 1990) ("Produced in or by an act of choice.” "The word, especially in statutes, often implies knowledge of essential facts.”).
Roethle v. Department of Licensing, 45 Wn. App. 607, 726 P.2d 1001 (1986).
79 Wn.2d 500, 504, 487 P.2d 1050 (1971) ("he must have refused knowingly and intelligently, after being advised of his right to have a physician . . . .”).
Rivard, 80 Wn. App. at 638 (citing Couch v. Rice, 23 Ohio App. 2d 160, 161, 261 N.E.2d 187 (1970)).
Wetherell, 82 Wn.2d at 871.
Id. at 869.
94 Wn.2d 820, 620 P.2d 990 (1980).
Rivard, 80 Wn. App. at 635.
116 Wn.2d 154, 804 P.2d 566 (1991).
Rivard, 80 Wn. App. at 635.
Schulze, 116 Wn.2d at 165 ("Before a person arrested for vehicular homicide may be forced to submit to the blood test mandated by RCW 46.20.308(3) . . . [defendant] must he advised of . . . [defendant’s] right to have additional tests administered by a person of. . . [defendant’s] choosing. RCW 46.20.308(2)).”
Rivard, 80 Wn. App. at 638.
State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982) ("[W]henever a police officer accosts ... [a person] and restrains . . . [that person’s] freedom to walk away, . . . [the officer] has 'seized’ that person.”) (quoting Terry v. Ohio, 392 U.S. 1, 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)); State v. Aranguren, 42 Wn. App. 452, 455, 711 P.2d 1096 (1985) (A person is "seized” only if, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that . . . [the person] was not free to leave.”) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980)).
Transcript of Defense Mot. to Suppress and 3.5 Hearing at 23.
id
Br. of Resp’t at 6.
Transcript of Defense Mot. to Suppress and 3.5 Hearing at 28.
State v. Short, 113 Wn.2d 35, 41, 775 P.2d 458 (citing Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984). In Berkemer the court stated "A . . . [police officer’s] unarticulated plan has no bearing on the question whether a suspect was 'in custody’ at a particular time; the only relevant inquiry is how a reasonable . . . [person] in the suspect’s position would have understood . . . [that person’s] situation.” (footnote omitted). Berkemer, 468 U.S. at 442.
Aff. of James D. Rivard, Clerk’s Papers at 10.
No. 94-1-00132-0, Findings of Fact and Order Re: Mot. to Suppress Blood Test Results at 2.
Rivard, 80 Wn. App. at 638.
"I think they treated Mr. Rivard as if-he was under arrest. But he wasn’t clearly. There’s no evidence before the Court that he was under arrest.” Argument of Richard L. Bechtolt, Transcript of Mot. to Suppress and 3.5 Hearing at 51.
See Berkemer, 468 U.S. at 441 ("We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.”) (footnote omitted).
Br. of Resp’t at 9.
Amended by Laws 1975 1st Ex. Sess. ch. 287, § 4; 1979 ch. 158, § 151; 1979, Ex. Sess. ch. 136, § 59; 1979, Ex. Sess. ch. 176, § 3; 1981 ch. 260, § 11; 1983 ch. 165, § 1; 1983 ch. 165, § 2; 1985 ch. 407, § 3; 1986 ch. 64, § 1; 1986 ch. 153, § 5; 1987 ch. 22, § 1; 1989 ch. 337, § 8; 1994 ch. 275, § 13.