Implied consent is an important aspect of DUI defense. The Washington implied consent statute, RCW 46.20.308, requires officers to inform a driver suspected of DUI of certain consequences of refusing or submitting to a breath test. When recreational marijuana use was decriminalized in Washington, the legislature set a legal limit for THC levels in the blood while driving. It also added a warning to the implied consent statute, stating the consequences of a breath test that indicated the driver’s THC concentration was above the legal limit. The available breath tests, however, could not measure THC. Although the statute has since been amended again, there were cases that arose under the language requiring the THC warning.
This blog previously discussed the case of State v. Murray, wherein the Court of Appeals found that the defendant’s breath test results were not admissible because the officer did not provide the THC warning.
The Supreme Court of Washington recently reviewed that case, consolidated with another. The trooper involved in each case used an identical form in providing the implied consent warning. The warning did not include statutory language regarding THC, but it advised the defendant that he or she was subject to a driver’s license suspension, revocation, or denial if the test indicated he or she was under the influence of alcohol. The form stated the defendant had the right to refuse the test, but if he or she did so, his or her driver’s license, permit, or privilege to drive would be revoked or denied for at least a year, and that refusal could be used in a criminal trial. It further stated that the driver’s license, permit, or privilege to drive could be suspended, revoked, or denied for at least 90 days if the defendant was at least 21 years old, the test indicated a blood alcohol level of .08 or more, and the defendant was in violation of RCW 46.61.502, Driving Under the Influence, or RCW 46.1.504, Physical Control of a Vehicle under the Influence.
For defendant Murray, the trooper did not read the parts of the warning related to people who were underage, who had commercial drivers’ licenses, or who were driving commercial vehicles, since those sections did not apply to the defendant.
The same district court commissioner denied each defendant’s motion to suppress the breath test results. In both cases, the superior court found the breath test should have been suppressed and reversed, with the Court of Appeals affirming. The Washington Supreme Court granted review of each case and consolidated them.
The implied consent statute was amended to add language regarding THC as part of Initiative 502, which decriminalized the use of cannabis. The amendment added language stating a driver’s license, permit, or driving privilege will be revoked, suspended, or denied for at least 90 days if the test indicated that the THC concentration was 5.00 or more. The statute was also amended in 2004 to require the officer to give the implied consent warning “in substantially the following language.”
Historically, in implied consent cases, the court has looked at whether the warning strictly adhered to the language of the statute and whether the defendant had an opportunity to make a “knowing and intelligent decision” about whether to take the test.
The Supreme Court noted that there was no known case law requiring an officer to read irrelevant warnings to a driver. For a long time, officers have left out warnings regarding underage drinking or commercial drivers when those items did not apply to a particular driver.
Furthermore, when reading the statute as a whole, the Supreme Court found the legislative intent clear. The statute does not require an officer to state the exact words in the statute but instead just requires the officer to give the relevant warning in substantially the statutory language.
The Supreme Court noted that “substantial compliance” is actual compliance as to the substance of every reasonable objective of the statute. Washington case law has identified three objectives of the implied consent statute. The first is to discourage driving under the influence of intoxicants. The second is to remove the driving privileges of those who do drive under the influence. The third is to provide an efficient means to gather reliable evidence regarding whether a driver is intoxicated or not. The Supreme Court found leaving out the THC warnings was consistent with these objectives as well as the objective of the warning to allow a defendant to make a knowing and intelligent decision regarding the test. The court found that telling a defendant about the consequences of a result that the test could not give did not help him or her make that decision.
The court found that a warning is in substantial compliance with the statute if it does not omit any relevant portion of the statute, accurately conveys the relevant portions, and is not otherwise misleading. The court found that the warnings in these cases were in substantial compliance because the breath test could not determine THC levels, and therefore that section of the warning was not relevant. The Washington Supreme Court reinstated the district court decisions finding each defendant guilty of DUI.
Although this case is specific to the THC warning, it provides broader guidance that a warning will not be considered deficient if it omits a specific warning that is not relevant. An officer is not required to read the statutory warning verbatim but must merely substantially comply with the statute.
If you are facing DUI charges, you need an experienced Washington DUI defense attorney to help you defend your rights. Contact Blair & Kim, PLLC by phone at (206) 622-6562 or through our website to discuss your case.
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