City Of Kent v. Joanne Kandler , 199 Wash. App. 22 ( 2017 )

-FILED
COURT OF AN'EALS OW I
STATE OF ASIO31 ir!
2011 HAY IS AN 11:53
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
JOANNE KANDLER,
No. 74253-1-1
Petitioner,
DIVISION ONE
V.
CITY OF KENT, a municipal PUBLISHED OPINION
corporation,
Respondent. FILED: May 15, 2017
SPEARMAN, J. — After Joanne Kandler's arrest for driving under the
influence of marijuana, an officer asked Kandler to consent to a blood test. She
agreed. Kandler later sought to suppress the blood test evidence on the grounds
that the officer did not read her the warnings mandated by the implied consent
statute, RCW 46.20.308, before obtaining her consent. But the implied consent
statute in effect at the time of Kandler's arrest no longer mandated that the
warnings be given before asking a driver to consent to a blood test. We affirm the
admissibility of the evidence.
FACTS
In January 2015, Kandler was arrested for driving under the influence of
marijuana. An officer asked Kandler if she would consent to a voluntary blood
No. 74253-1-1/2
test. The officer informed Kandler that she had the right to refuse; evidence from
the blood test could be used against her in legal proceedings; she had a right to
consult with an attorney before giving consent; and consent was to be given
knowingly, freely, and voluntarily. Kandler consented to the blood test.
Prior to trial, Kandler moved to suppress the blood test evidence on the
grounds that police failed to administer the warnings required by the implied
consent statute. The municipal court granted Kandler's motion. The superior
court, however, reversed. The superior court ruled that by the implied consent
statute's plain language, it applies only to breath tests and was inapplicable here,
where a blood test was at issue. We granted discretionary review.
DISCUSSION
We are asked to determine whether the superior court erred in denying
Kandler's motion to suppress evidence from the warrantless blood test. Kandler
contends that her consent to the blood test was not valid because officers failed
to give the implied consent warnings set out in RCW 46.20.308. The State
argues that the blood test was a valid search under the consent exception to the
warrant requirement.
Warrantless searches are unconstitutional unless they fall within "a narrow
set of exceptions" to the warrant requirement. State v. Tibbles, 169 Wash. 2d 364,
369, 236 P.3d 885(2010)(citing State v. Ringer, 100 Wash. 2d 686, 701,674 P.2d
1240 (1983)). These exceptions include consent, searches incident to valid
arrest, and exigent circumstances. Id. A warrantless search is lawful under the
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consent exception where the State establishes that consent was freely and
voluntarily given. State v. Reichenbach, 153 Wash. 2d 126, 131-32, 101 P.3d 80
(2004).
Breath tests conducted subsequent to an arrest for driving under the
influence (DUI) are within the search incident to arrest exception to the warrant
requirement. State v. Baird, 187 Wash. 2d 210, 221, 386 P.3d 239 (2016). But,
under Washington's implied consent statute, RCW 46.20.308, drivers are given
the choice of consenting to or refusing a breath test, "with penalties attached for
refusal." Id. at 224.The implied consent statute also grants drivers the right to
warnings concerning the legal effect of consenting or refusing consent to a
breath test. Id. at 223-24. The right to the warnings and the right to refuse the
test are not constitutional but are granted as a matter of legislative grace. Id. at
224.
The issue in this case is whether the implied consent law in effect at the
time of Kandler's arrest applied to blood tests. If it did, officers were required to
provide the statutory warnings and, absent those warnings, Kandler's consent
was not valid. State v. Avery, 103 Wash. App. 527, 535, 13 P.3d 226(2000). If the
statute did not apply to blood tests, the State had only the burden of showing that
Kandler voluntarily consented to the test. Id. at 541.
The meaning of a statute is a question of law that we review de novo.
State v. Morales, 173 Wash. 2d 560, 567 n.3, 269 P.3d 263(2012). In interpreting a
statute, our primary concern is to discern the intent of the legislature. Id. at 567.
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We begin with the statutory language. Id. Where a statute's plain language is
unambiguous, we must give effect to that meaning. State v. Bostrum, 127 Wash. 2d
580, 586-87, 902 P.2d 157 (1995).
In its original form, the implied consent statute, RCW 46.20.308,
expressed the legislative determination that drivers in Washington "are deemed
to have consented to a test of their breath or blood for the purpose of determining
their breath or blood alcohol content." Id. at 583-84 (citing former RCW
46.20.308(1)(1995))(emphasis added). Three amendments to the implied
consent statute are relevant here.
As part of the 2012 initiative decriminalizing recreational marijuana,
Washington voters amended the statute to include tetrahydrocannabinol (THC),
the main active compound in marijuana. LAWS OF 2013, ch. 3,§ 31. Under that
amendment, the statute stated that drivers are "deemed to have given consent
... to a test or tests of his or her breath or blood for the purpose of determining
the alcohol concentration, THC concentration, or presence of any drug in his or
her breath or blood." Id.(Emphasis added). The statute mandated warning that, if
the test indicates that the driver's blood THC exceeds the legal limit, driving
privileges will be revoked for at least one year. Id.
In April 2013, the United States Supreme Court held that the exigent
circumstances exception to the warrant requirement does not automatically apply
to a test of a driver's blood when a driver is under arrest for DUI. Missouri v.
McNeely, 133 S. Ct. 1552, 1556, 185 L. Ed. 2d 696(2013). In response to
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McNeely, the Washington legislature amended the implied consent statute to
remove references to blood tests. LAWS OF 2013, ch. 35,§ 36; H.B. REP. ON
ENGROSSED SECOND SUBSTITUTE H.B. 5912,63rd Leg., 2d Spec. Sess.(Wash.
2013). Under the 2013 amendment, the statute retained the mandatory warning
stating that, if the test indicates a concentration of THC in the driver's blood
above the legal limit, driving privileges will be revoked. Id. In 2015, the legislature
amended the statute to delete all references to THC. LAWS OF 2015, ch. 3, § 5.
In January 2015, when Kandler was arrested, the 2015 amendment had
not yet taken effect. Kandler contends that the statute in effect at the time of her
arrest applied to both breath and blood tests. This is so, she asserts, because
the statute contained multiple references to THC and to blood. Kandler cites
several provisions of the statute.
At the time of Kandler's arrest, the implied consent statute read:
(1) Any person who operates a motor vehicle within this
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 for the purpose of determining the alcohol
concentration, THC concentration, or presence of any drug in
his or her breath 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... Neither consent nor this
section precludes a police officer from obtaining a search
warrant for a person's breath or blood.
Former RCW 46.20.308(1)(2013)(emphasis added). The statute stated that
drivers impliedly consented to a breath test for the purpose of determining
alcohol or THC concentration in breath. Former RCW 46.20.308(1). It referred to
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a blood test only by stating that an officer may obtain a warrant to search a
person's blood. Id.
The relevant warning provision read:
(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. .. while
having alcohol or THC in a concentration in violation of RCW
46.61.503 in his or her system ... The officer shall warn the
driver, in substantially the following language, that:
(c) If the driver submits to the test and the test is
administered, the driver's license, permit, or privilege to drive
will be suspended, revoked, or denied for at least ninety days
if:
(i) The driver is age twenty-one or over and the test
indicates either that the alcohol concentration of the driver's
breath is 0.08 or more or that the THC concentration of the
driver's blood is 5.00 or more; or
(ii) The driver is under age twenty-one and the test indicates
either that the alcohol concentration of the driver's breath is 0.02
or more or that the THC concentration of the driver's blood is
above 0.00; . ..
Former RCW 46.20.308(2)(emphasis added). The statutory warnings referred to
THC and stated that driving privileges would be revoked if "the test" indicated an
elevated blood THC level. Id. The statute identified the referenced "test" as "R]he
test or tests of breath." Id.
Kandler cites to three further provisions of former RCW 46.20.308. The
statute's third subsection stated that, "[e]xcept as provided in this section, the test
administered shall be of the breath only." Former RCW 46.20.308(3).The
subsection then authorized a blood test in specific circumstances not applicable
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No. 74253-1-1/7
here) Id. And former RCW 46.20.308(5) and .308(7) both discussed procedural
requirements applicable when "after arrest and after the other applicable
requirements of this section have been satisfied, a test or tests of a person's
blood or breath" indicated that the driver had an alcohol or THC concentration
above the legal limit. Former RCW 46.20.308(5). The "other applicable
requirements" specified that a blood test could only be administered pursuant to
a warrant or under the specific circumstances listed in subsection three. Former
RCW 46.20.308(1), .308(3).
Kandler is correct in asserting that former RCW 46.20.308 included
references to THC and to blood. But the statute did not state that drivers
impliedly consented to a blood test or mandate warnings before obtaining
consent to a blood test. The statute unambiguously stated that drivers consented
to a breath test and set out warnings that officers were required to give before
administering a breath test.
1 In its entirety, former RCW 46.20.308(3) read:
(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 felony driving while under the influence of intoxicating liquor
or drugs under RCW 46.61.502(6), felony physical control of a motor
vehicle while under the influence of intoxicating liquor or any drug under
RCW 46.61.504(6), 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 there has been serious bodily injury to
another person, a breath or blood test may be administered without the
consent of the individual so arrested pursuant to a search warrant, a
valid waiver of the warrant requirement, or when exigent circumstances
exist.
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By including warnings concerning the consequences of driving with a
blood THC concentration above the statutory limit, the statute implied, incorrectly,
that a breath test could measure the concentration of THC in a person's blood.
See State v. Murray, 187 Wash. 2d 115, 118, 384 P.3d 1150(2016)(stating that the
statute was amended in 2015 to avoid suggesting that "the current breath test will
measure something it cannot"). See also, S.B. REP. on SECOND ENGROSSED
SECOND SUBSTITUTE H.B. 1276,64th Leg., 2d Spec. Sess.(Wash 2015)(prior to
2015 amendment, drivers impliedly consented to a breath test for the purposes of
determining level of THC but breath test cannot detect THC). But this faulty
understanding of what a breath test could measure is not relevant here, where
officers did not seek to administer a breath test.
Prior to the 2013 amendment, Washington's implied consent law
mandated warnings before administering a test of a driver's blood. Had Kandler's
offense taken place before the 2013 amendment, she would have had a statutory
right to the warnings set out in the statute. But this statutory right was eliminated
in the 2013 amendment. See State v. Sosa, No. 33859-2-111, 2017 WL 1023994,
at *3(Wash. Ct. App. Mar. 16, 2017)("Once the 2013 amendment eliminated
references to blood testing, the right to advice in this context was also
removed."). The statute in effect at the time of Kandler's arrest expressly applied
to breath tests. The superior court did not err in ruling that the statute was
inapplicable to Kandler's blood test.
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However, Kandler argues that her case is analogous to Avery, 103 Wn.
App. 527. In that case, a driver was arrested for hit and run. Id. at 531. Officers
sought a blood test without reading the driver the implied consent warnings,
although the implied consent statute in effect at that time applied to both breath
and blood tests. Id. at 531, 533. The driver consented to a blood test but later
moved to suppress the evidence. Id. at 531. We held that, "where the implied
consent statute applies, the State cannot avoid complying with the statute by
obtaining a drivers ``voluntary' consent to a blood test." Id. at 535. But because
the statute did not apply in the particular circumstances of that case, we upheld
the admissibility of the blood test evidence. Id. at 541.
Avery is of no help to Kandler. At the time Avery was decided, the implied
consent statute stated that drivers were "deemed to have given consent.. . to a
test or tests of his or her breath or blood... ." .at 533(quoting former RCW
46.20.308(1)(1996)). But at the time of Kandler's arrest, the statute did not apply
to blood tests. As the Avery court concluded,"where the implied consent statute
does not apply, the suspect may voluntarily consent to a blood test." Id. at 541
(citing State v. Rivard, 131 Wash. 2d 63, 77, 929 P.2d 413(1977)).
Because the implied consent statute did not apply to Kandler's blood test,
evidence from the test was admissible if the State showed that the test was
within the consent exception to the warrant requirement. Consent to a search is
valid if it is voluntarily given. Reichenbach, 153 Wash. 2d at 132. Kandler does not
dispute that she consented to the test and she makes no argument that her
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consent was not voluntary. The superior court did not err in reversing the order
granting Kandler's motion to suppress the evidence.
Affirmed.
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