City of Kent v. Beigh , 145 Wash. 2d 33 ( 2001 )

Madsen, J.

(dissenting) — The majority holds, and I agree, that RCW 46.20.308(3) does not provide the sole authority for an officer to request that a motorist submit to a blood test. I believe that RCW 46.20.308(2) provides additional exceptions. It places an affirmative duty on police officers to request a motorist suspected of driving under the influence to submit to a blood test if the motorist has a “physical injury, physical incapacity, or other physical limitation” making the motorist incapable of providing a breath sample. RCW 46.20.308(2).

I disagree, however, with the majority’s second holding that a motorist whose breath three times caused a BAC Verifier DataMaster to report “interference detected” is not deemed to have a “physical incapacity, or other physical limitation, of providing a breath sample” as defined in RCW 46.20.308(2). Accordingly, I dissent.

DISCUSSION

RCW 46.20.308(2) provides that “a blood test shall be administered” in those instances “where the person is incapable due to physical injury, physical incapacity, or other physical limitation, of providing a breath sample.” WAC 448-13-055 provides that a “subject whose breath registers the presence of an interference on two or more successive breaths shall be presumed to be incapable of providing a valid breath sample.”

The City of Kent argues that Richard Beigh’s breath caused the BAC DataMaster to report “interference detected,” demonstrating that he was physically incapable under RCW 46.20.308(2) of providing a valid breath test and therefore Officer Dexheimer had a duty to request that Beigh submit to a blood test. The clear language of the statutes and the relevant WACs, the stated legislative intent underlying this State’s implied consent laws, and plain logic support the city’s position.

The majority argues that since WAC 448-13-055 does not explicitly state that the subject will be deemed to have a physical incapacity or physical limitation, then there can be no presumption that the subject has a physical incapacity or physical limitation preventing him from providing a breath sample for purposes of RCW 46.20.308. Therefore, the majority says, no blood test is authorized. Majority at 45-46. The majority’s argument rests exclusively on the fact that another administrative code, WAC 448-13-040, explicitly states that a subject with jewelry in his or her mouth who declines to remove it before providing a breath sample “ ‘will be deemed to have a physical limitation rendering them incapable of providing a valid breath sample and will be required to provide a blood sample under the implied consent statute, RCW 46.20.308,’ ” while WAC 448-13-055 uses the word “incapacity” rather than physical limitations. Majority at 45 (quoting WAC 448-13-040). The majority then quotes State v. Enstone, 137 Wn.2d 675, 680-81, 974 P.2d 828 (1999) which asserts that “ ‘it is an “elementary rule that where the Legislature uses certain statutory-language in one instance, and different language in another, there is a difference in legislative intent.” ’ ” Majority at 45-46; Enstone, 137 Wn.2d at 680-81 (quoting United Parcel Serv., Inc. v. Dep’t of Revenue, 102 Wn.2d 355, 362, 687 P.2d 186 (1984) (citing Seeber v. Pub. Disclosure Comm’n, 96 Wn.2d 135, 139, 634 P.2d 303 (1981))).

Initially, it is unclear why the majority believes that the language of a WAC reflects a legislative choice. But, assuming that the majority’s use of statutory construction rules is appropriate, there is an equal, if not superior, rule of construction that courts will not interpret a statute so as to render any part of the language superfluous. Cf. Svendsen v. Stock, 143 Wn.2d 546, 23 P.3d 455 (2001). The plain purpose of WAC 448-13-055 is to specify one instance in which a person is deemed incapable of giving a breath sample. The only reason to specify that a person is deemed incapable of giving a breath sample is to establish the basis for a blood test. Thus, a person whose breath registers an interference will be deemed incapable of giving a breath sample and will be subject to the blood test requirement. Under the majority’s interpretation, however, WAC 448-13--055 serves absolutely no purpose because the fact that the person is deemed incapable of giving a breath sample will not result in a blood test.

Rules of construction are tools to discern Legislative intent, not to subvert it. This court found that RCW 46-.20.308 has a threefold purpose “(1) to discourage individuals from driving an automobile while under the influence of intoxicants, (2) to remove the driving privileges from those individuals disposed to driving while inebriated, and (3) to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication.” Nowell v. Dep’t of Motor Vehicles, 83 Wn.2d 121, 124, 516 P.2d 205 (1973).

The Legislature has made it very clear that by operating a motor vehicle a person is deemed to have consented to a test of his or her breath or blood. To hold that repetitive readings of “interference detected” are not a “physical incapacity or a physical limitation” to providing a breath sample punches a hole in RCW 46.20.308 and will thwart the Legislative intent we found in it 28 years ago.

Even without WAC 448-13-055, logic requires a finding that Mr. Beigh was physically incapable of giving a breath sample. The majority says, “|j]ust because a subject cannot provide a valid breath sample under WAC 448-13-055 it does not necessarily follow that he is physically incapable of providing a breath sample for purposes of RCW 46.20.308.” Majority at 45. The majority’s position rests heavily on Beigh’s apparently normal respiratory system. However, Officer Dexheimer testified that when the BAC DataMaster registers an interfering substance it has to do with the subject’s breath containing substances similar to the chemical makeup of alcohol, such as when “a person that might be drinking isopropyl alcohol, or somebody who is diabetic and has acetone on their breath from that.” Verbatim Report of Proceedings at 7. The makeup of someone’s breath is a physical trait, independent of the respiratory system that renders the individual incapable of providing a breath sample for the purpose of RCW 46.20.308(2).

In this case, the BAC DataMaster reported “interference detected” on each of the three breath samples that Beigh submitted. The evidence at trial was that the BAC Datamaster was working properly, Officer Dexheimer used it properly, and Beigh was trying to provide a valid breath test. Given the interference safeguard built into the BAC DataMaster to protect people from being convicted for having alcohol-like substances in their system, the only logical conclusion is that Beigh had a physical incapacity or other physical limitation preventing him from providing a valid breath sample.

Finally, the majority’s argument is easily answered: the use of the words “physical incapacity” in connection with mouth jewelry and only “incapacity” with regard to interference implies that the Legislature intended different results. In the case of a subject wearing jewelry in his or her mouth, the state toxicologist has determined that a breath test shall not be performed until the subject removes the jewelry from the mouth. The toxicologist needed to promulgate a rule to address how to treat a subject who refuses to remove jewelry from the mouth. Subjects refusing to remove the jewelry from their mouths, who never attempt to give a breath sample, logically cannot be assumed to have a physical limitation rendering them incapable of providing a valid breath sample. Thus, WAC 448-13-040 was needed to allow a presumption of a physical limitation to achieve the legislative intent of RCW 46.20.308(2) since such a subject would not ordinarily be considered to have a physical limitation rendering them incapable of providing a breath sample.

The only impediments to the subject’s providing a valid breath sample are the (1) state toxicologist’s decision to require the jewelry be removed before a breath sample can be taken and (2) the subject’s refusal to cooperate and remove the jewelry. Neither of these impediments can be properly categorized as “physical.” In contrast, a subject whose breath registers the presence of interference on two or more successive breaths will be understood to have a physical incapacity or physical limitation and there is no need for a rule to presume a physical incapacity or limitation.

CONCLUSION

In summary, WAC 448-13-055 makes it clear that Officer Dexheimer correctly presumed that Beigh was incapable of providing a valid breath sample. The legislative intent underlying the implied consent statute is to obtain either a breath or blood sample from subjects suspected of driving under the influence. As the City of Kent points out, if a valid breath test is not possible then there is implied consent for a blood sample. RCW 46.20.308(2) placed an affirmative duty on Officer Dexheimer to request Beigh, a motorist suspected of driving under the influence, to submit to a blood test.

For these reasons, I dissent.

Johnson, Ireland, and Bridge, JJ., concur with Madsen, J.