State v. Marquez

BROWN, Justice.

This appeal by the State is from the district court’s judgment and order rescinding, revising and setting aside an order from the justice of the peace which sustained appellee’s license suspension.

On September 26, 1980, appellee was arrested and charged with the offense of driving while under the influence of an intoxicating beverage (DWUI). Following his arrest the appellee was requested to submit to a chemical test to determine the alcohol content of his blood. An officer read appel-lee the following statement:

“ * * * As a law enforcement officer I advise you that you are under arrest and officially charged with DWI [sic]. I am requesting that you submit to a chemical test of your breath, blood, or urine. Your failure to submit to the chemical test may result in the suspension of your privilege to operate a motor vehicle. You may go to the nearest hospital or clinic and secure a test at your own expense or you may have the test administered by a person at a place and in a manner prescribed by me at the expense of my agency.”

Appellee did not submit to the test and his license was suspended by the Motor Vehicle Division of the Department of Revenue and Taxation. Following an administrative hearing the justice of the peace sustained the suspension of appellee’s license on the basis of appellee’s failure- to submit to the chemical test.

On appeal the district court rescinded the order of the justice of the peace court.

We will reverse the district court.

The issue on appeal is: Does the implied consent law require that a person arrested for driving while under the influence of alcohol or intoxicating beverages be advised that his driving privileges may be suspended or that they will be suspended for thirty days, if he fails to submit to the chemical test.

The statutory provisions that we deem controlling in this case are:

“(a) any person who operates a motor vehicle upon a public street or highway is deemed to have given consent, subject to the provisions herein, to a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood. * * * The arrested person shall be told that his failure to submit to the chemical test may result in the suspension of his privilege to operate a motor vehicle. * * * ” (Emphasis added.) Section 31-6-102(a), W.S.1977.

“(c) If a person under arrest refuses * * to submit to a chemical test * * * none shall be given, but upon the receipt of the law enforcement officer’s sworn report or statement that he had probable cause * * and that the person refused to submit to the test upon the request of the law enforcement officer, the department shall suspend his operator’s license for a period of thirty (30) days subject to review as herein provided.” ¹ Section 31-6-102(c), W.S.1977.

“(b) The scope of such a hearing for purposes of this act [§ 31-6-101 to 31-6-106] shall cover the issues of whether a law enforcement officer had probable cause * * * whether the person was placed under arrest, and whether, he refused to submit to the test * * * and whether, except for the persons described in this act who are incapable of refusing, he had been told that his driving privileges would be suspended for thirty (30) days if he refused to submit to the test. At the conclusion of said hearing, the justice of the peace * * * shall order that the suspension either be rescinded or sustained.” (Emphasis added.) Section 31-6-103(b), W.S.1977.

A reading of § 31-6-102(a) and § 31-6-103(b), W.S.1977, suggests that there is an inconsistency on exactly what a person who is arrested on suspicion of DWUI should be told. We do not think this apparent inconsistency is fatal to the implied consent law. A fair reading of the entire implied consent law indicates that a person arrested for DWUI should be warned that his driving privileges will be in jeopardy unless he submits to a chemical test. We do not think precise words are determinative unless an arrested person can show that the language used by the arresting officer was misleading or was not entirely clear.

The Implied consent law, §§ 31-6-101 through 31-6-106, W.S.1977, was first enacted in 1971. Section 31-6 — 102(a) as originally enacted provided that “such arrested person shall be told that his failure to submit to such chemical test may result in the suspension of his privilege to operate a motor vehicle for thirty days.” (Emphasis added.) Ch. 158, § 2(a), S.L. of Wyoming, 1971. The words “for thirty days” were deleted in 1973 when the implied consent law was amended. Ch. 195, § 1(a), S.L. of Wyoming, 1973. When the implied consent law was again amended in 1977, the words “for thirty days” were again left out of the amendment. Ch. 13, § 1(a), S.L. of Wyoming, 1977. Section 31-6-103(b), W.S.1977, is the same as originally enacted in 1971. Ch. 158, § 3(b), S.L. of Wyoming, 1971.

We do not know that there is any particular significance to the history of the implied consent law, except that the apparent inconsistency has been in the law since its beginning, and it is therefore surprising that this matter has not been brought to our attention before.

In State v. Chastain, Wyo., 594 P.2d 458, 461, (1979) this Court stated:

“ * * * The implied Consent Law was not designed to give greater rights to a suspected drunken driver than were constitutionally afforded before its passage. Its purpose was intended to impose a condition on the right to operate a motor vehicle on the streets and highways of this state. The condition requires that a driver, by so operating a vehicle in Wyoming, consents to submit to chemical tests for intoxication under statutorily determined circimstances. The refusal to submit to a test can result in revocation of a driver’s license. It was intended to facilitate the tests for intoxication and not to inhibit the ability of the state to remove drunken drivers from the highways of our state. In light of this purpose, it must be liberally construed to effectuate its policies. [Citations.]”

A fair reading of State v. Chastain, supra, indicates that the arresting officer is required to advise the motorist of the provisions contained in § 31-6-102(a), W.S.1977, as follows:

“The arrested person shall be told that his failure to submit to the chemical test may result in the suspension of his privilege to operate a motor vehicle. * * *” (Emphasis added.)

We cannot dispose of this case on the authority of State v. Chastain, supra, alone. The question of the apparent conflicting language in § 31-6-102(b), W.S.1977, was not an issue in the Chastain case.

The ordinary rules of statutory construction are of only minimal help in resolving the apparent conflict in § 31-6-102(a) and § 31-6-103(b), W.S.1977. We conclude that such sections cannot be reconciled.

“ * * * [Legislative intention must be sought from the whole act, and not merely from certain parts of it; and where certain provisions of an act are inconsistent with other provisions of the same act, then it becomes incumbent upon the courts to determine which must prevail in order to carry out the legislative purpose and intention. * * * ” Golden Valley County v. Lundin, 52 N.D. 420, 203 N.W. 317, 319 (1925).

“ * * * [W]hen the provisions of related statutes are irreconcilable, under reasonable interpretation, and one must give way to the other, ordinarily the last in point of enactment will prevail as being the latest expression of the legislative intent. [Citations.]” Victory Cab Co. v. City of Charlotte, 234 N.C. 572, 68 S.E.2d 433, 437 (1951).

See also Johnson v. Safeway Stores, Inc., Wyo., 568 P.2d 908 (1977); Askew v. Schuster, Fla., 331 So.2d 297 (1976); Cable-Vision, Inc. v. Freeman, Fla.App., 324 So.2d 149 (1975); In re Port of St. Helens of Columbia County, 19 Or.App. 87, 526 P.2d 626 (1974); and 14 Uniform Statutory Construction Act, (U.L.A.) § 18. (This Uniform Act not adopted in Wyoming.)

Section 31-6-102(a) in its present form was in fact enacted later than § 31-6— 103(b); however, we do not attach much significance to that fact.

Cases cited by both the State and appel-lee other than State v. Chastain, supra, are of limited value with respect to the issue in this case because they are not concerned with irreconcilable statutory provisions. We agree with appellee that “This case is one of first impression before this court.” Pryor v. State Department of Motor Vehicles, 8 Wash.App. 953, 509 P.2d 1018 (1973), cited by both parties, held that it is not necessary to tell an arrested driver the specific number of days that his driving privileges may or will be suspended if he refused to take the chemical test. Calvert v. State Department of Revenue, Motor Vehicle Division, 184 Colo. 214, 519 P.2d 341 (1974), held that the implied consent law requires that an arrested driver must be warned of the probable consequences of his refusal to take the chemical test before his license can be revoked. It also held that the warning should be phrased so that a person of normal intelligence will understand the consequences of his actions.

Here we seek a construction which will give effect to the purpose of the implied consent law and the intention of the legislature. We said:

“Statutes should be given a reasonable, practical construction. * * *” State Board of Equalization v. Cheyenne Newspapers, Wyo., 611 P.2d 805, 809 (1980).

Also,

“ * * * A statute should be construed in such a fashion that one provision will not destroy another. [Citation.]” DeHerrera v. Herrera, Wyo., 565 P.2d 479, 482 (1977).

It is quite apparent that inadvertent language slipped into either § 31-6-102(a) or § 31-6-103(b), W.S.1977. Effect simply cannot be given to both provisions of the law. Section 31-6-102(a), W.S.1977, clearly says that the arrested person shall be told that his failure to submit to the chemical test may result in the suspension of his privilege to operate a motor vehicle. Section 31-6-103(b), W.S.1977, speaks of what the hearing officer ² must determine, which is, among other things, whether the arrested person had been told that his driving privileges would be suspended for thirty days if he refused to submit to a test.

We conclude that the legislature did not intend the language employed in § 31-6-103(b), W.S.1977, and that the language “would be suspended for thirty days” was inadvertent. This conclusion is consistent with the purpose of the implied consent law. An arresting officer has no right to tell a driver what the Department of Revenue and Taxation will do. The officer has no control over that department. If an arresting officer were to tell a driver that his driving privileges would be suspended, this representation would be similar to an arresting officer telling a suspect what sentence the judge would give him. No authority need be cited in support of the impropriety of this advice to a suspect. Granted, if a driver refuses to submit to a chemical test, as a practical matter, his driving privileges will probably be suspended by the Revenue and Taxation Department. However, the suspension is not automatic. The arresting officer may not, for a variety of reasons, make the report required by § 31-6-102(c), W.S.1977. The employees in the Revenue and Taxation Department may not, for reasons of their own, actually order the suspension of the driver’s driving privileges. In any event, it would be presumptuous of the arresting officer to tell the driver that there would be a suspension of his license when he did not, and could not know whether there would be. People who run afoul of the law are quite ingenious in thinking of things to complain about. If an officer had in fact told the driver that his driving privileges would be suspended, we suspect, for example, he may be in court claiming threats,' intimidation, and duress.

We conclude, therefore, that an arresting officer must tell the arrested person that failure to submit to the chemical test may result in the suspension of his privilege to operate a motor vehicle. We further conclude that when the hearing officer is making his determination at an administrative hearing, he is required to find whether the arrested person has been told that his driving privileges may be suspended.

The judgment and order of the district court is reversed and the order of the Department of Revenue and Taxation suspending appellee’s driving privileges for thirty days is reinstated.

1 . Section 31-6-102(d), W.S.1977, sets out the procedure for requesting a review of the suspension.

2 . A hearing officer may be a county judge or justice of peace of the county. Section 31-6-102(d), W.S.1977.