NEW WASHINGTON DUI WARNINGS LEAD TO SUPPRESSED BREATH TEST EVIDENCE by

J. Eric Gaston
Veitch, Gaston & Kennedy
www.waduidefense.com
777 108th Ave. NE, Suite 1800, Bellevue, WA 98004

In 1968 the Washington citizenry, via Initiative 242, agreed that in an effort to curtail DUI's in the State of Washington, drivers would impliedly give their consent to a breath or blood test should they be investigated for DUI.  Through the years, the Washington courts, along with the Washington legislature, have found, or otherwise determined, that this "consent" has certain important safeguards.  Perhaps the most important safeguard is that a breath test result, blood test result, or refusal to take either a breath or blood test, is not valid evidence in a criminal or civil proceeding unless the person under investigation had an opportunity to make a knowing and intelligent decision whether or not to take the breath/blood test.  
Pursuant to Initiative 242, as drafted and subsequently amended, Washington drivers suspected of DUI are asked to make a difficult decision; one which may have a significant impact on his/her life and/or livelihood.  The decision -- whether to voluntarily give law enforcement the single most devastating piece of evidence in any DUI case - a breath/blood sample.  Washington drivers suspected of DUI are asked to cooperate with police by either: (1) blowing into a device called the BAC Datamaster , or (2) letting someone put a needle in his/her arm to draw a blood sample. 
The BAC Datamaster is a device that measures a person's breath alcohol level, and through the use of software, estimates that person's blood alcohol level.  In short, the BAC Datamaster is a machine that prints a ticket that essentially says "guilty."  In other words, if a suspected DUI driver elects to voluntarily blow into the BAC Datamaster and that ticket evidences a result of .08 or higher, that individual, for all intents and purposes, is deemed a criminal.  In legal terms this is referred to as the "per se" prong to a DUI charge, and ultimately it means that if the machine says .08 or higher, a jury or judge need look no further for their proof of guilt beyond a reasonable doubt. 
To ensure that a suspected DUI driver is provided an opportunity to make a knowing and intelligent decision whether to take, or not, a breath/blood test, the Washington legislature, via RCW 46.20.308, requires that law enforcement give certain warnings.  These warnings are known as the "Implied Consent Warnings", or "242 warnings" (hereafter "ICW's"), and usually are provided to a suspected DUI driver by a written form drafted by law enforcement agencies. 
Although the ICW's are a creature of statute in the State of Washington, over the years they have evolved to include language not necessarily found in RCW 46.20.308(2).  It has been determined through the courts that the actual legal sufficiency of the ICW's is a question of law."   It has also been determined that the ICW's provided to suspected DUI drivers need not exactly match the statutory language of RCW 46.20.308(2).   It would therefore logically follow that warnings read to a suspected DUI driver which do "exactly match" the statutory language are legally sufficient.  However, the foregoing statement is not necessarily correct, because warnings provided to a suspected DUI driver must also convey accurate information.  
It has been judicially determined that warnings read to a suspected DUI driver must not only accurately reflect the law with regard to consequences, but also may not be misleading.   Washington drivers have a right "…to have accurate warnings given that are phrased so that one of normal intelligence would understand the consequences of his or her actions."   Furthermore, our Washington courts have held that, "…warnings which are inaccurate or misleading contravene the purpose of the implied consent warning and thus require suppression of the test results."  
One June 10th 2004, RCW 46.20.308 was amended, and as a result the Washington State Patrol changed the warnings read to suspected DUI drivers. The writer's of this article submit that the new warnings read to suspected DUI drivers are implicitly misleading and fundamentally unfair.  It should be noted that this is not the first time it has been alleged that suspected DUI drivers have been mislead by the ICW's.  The issue has actually been raised on several occasions.  The most recent challenge to the ICW's dealt with Washington State Patrol's 2001 ICW form.  At issue in that challenge was a semicolon, and the word "violation" in the second paragraph of the implied consent warning.   In Pattison v. DOL, 112 Wash. App. 670 (2002), the court found that the respondents failed to show that the State Patrol warning was misleading or inaccurate.  The respondents in Pattison alleged that inclusion of a semicolon, coupled with the language "or in violation of," in the statutory language of RCW 46.20.308 was misleading.  The respondents argued that the warnings implied that those drivers under 21 would lose their license for merely being arrested for DUI, physical control, or Minor DUI.  The Pattison court disagreed with the respondents on both counts.  With regard to the "if you are in violation of" language, the Pattison court held that,
"[w]e are not persuaded that a person of normal intelligence would believe, upon hearing the State Patrol's warning, that 'if you are in violation of' refers to the arrest that has already occurred.  The more reasonable understanding of the warning, in context, is that the phrase 'if you are in violation of' means 'if you are convicted and prosecuted for.'"

Pattison at 676.

With regard to the meaning imparted by the addition of a semicolon, the Pattison court held that,
"…[with the addition of the semicolon] the last sentence of the State Patrol form advises every person, regardless of age, that 'your license, permit, or privilege to drive will be suspended… if you are in violation RCW 46.61.502, 46.61.503 or 46.61.504.'  This contrasts with the statutory language, which makes the 'if… in violation of' warning applicable only 'in the case of a person under age twenty-one.'" 

Pattison at 675.  (Emphasis added).

It is against this historic backdrop of misleading, and even legally inaccurate warnings, that the warnings must be examined as they exist today.  As currently drafted, RCW 46.20.308 reads as follows:
The officer shall warn the driver, in substantially the following language, that:
     (a) If the driver refuses to take the test, the driver's license, permit, or privilege to drive will be revoked or denied for at least one year; and
     (b) If the driver refuses to take the test, the driver's refusal to take the test may be used in a criminal trial; and
     (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 the driver is age twenty-one or over and the test indicates the alcohol concentration of the driver's breath or blood is 0.08 or more, or if the driver is under age twenty-one and the test indicates the alcohol concentration of the driver's breath or blood is 0.02 or more, or if the driver is under age twenty-one and the driver is in violation of RCW 46.61.502 or 46.61.504. (Emphasis added).

The warnings provided to drivers, exactly mirror the statutory language of RCW 46.20.308.  The problem, however, is that the warnings are misleading to those who are 21 years of age or older.  The fact that the Washington State Patrol chose to word the warnings not only in "substantially the same language" as the statute, but to exactly mirror it, does not cure the fact that the language is undeniably deficient on its face. 
The June 2004 ICW's advise suspected DUI drivers that they will be suspended under three scenarios.  The language goes so far as to actually create an "A," a "B," and a "C," for these three scenarios. First, "A," states "IF YOU ARE AGE TWENTY-ONE OR OVER AND THE TEST INDICATES [a BAC of]…0.08 OR MORE."  Next,  "B," states, "IF YOU ARE UNDER AGE TWENTY-ONE AND THE TEST INDICATES [a BAC of]…0.02 OR MORE."  Finally, "C," states, IF YOU ARE UNDER AGE TWENTY-ONE AND YOU ARE IN VIOLATION OF RCW 46.61.502, DRIVING UNDER THE INFLUENCE, OR RCW 46.61.504, PHYSICAL CONTROL OF VEHICLE UNDER THE INFLUENCE."  There is no corresponding fourth scenario, or "D," which advises the class of drivers whom are over 21 that they will likewise be suspended, revoked, or denied, if similarly convicted.  More importantly, by not mentioning this class of driver in this context, the warnings implicitly inform them that they will not be suspended, revoked, or denied if they are in violation of RCW 46.61.502 or 46.61.504.
It is submitted that the new 2004 ICW's are implicitly inaccurate and misleading.  The concept of "implicit inaccuracy" was directly addressed in Cooper v. DOL, 61 Wn. App. 525 (1991); in Cooper the driver asserted that the warnings as read to him were inaccurate, in that the officer provided him with additional advice that, "…his license would be revoked 'probably for at least a year.'"  While the court found that the driver was provided with all of the statutory language contained in the implied consent statute, it nonetheless held that, "…the warning here was inaccurate because it implied that Mr. Cooper might have his license revoked for less than 1 year."  
The problems associated with inaccurate and misleading warnings were likewise addressed in Pattison, which acknowledged that the statutory language as drafted, was deficient in that it addressed only the class of drivers whom are under the age of 21.   Again, the Pattison court specifically states that "[with the addition of a semicolon the WSP warnings]…contras[t] with the statutory language, which makes the 'if …in violation of' warning applicable only 'in the case of a person under age twenty-one."   The Pattison court went on to state that, with the addition of the semicolon, the State Patrol warnings were not inaccurate or misleading, and that in fact, "…the Department is required by RCW 46.61.5055(6) to suspend, revoke, or deny the driving privileges of any person who is convicted of driving or being in physical control of a motor vehicle while under the influence of intoxicating liquor or drugs."   The Pattison court rejected the respondent's claims that the warnings were misleading or inaccurate, holding that it, "…does not make it misleading to include in the warnings accurate information about the loss of license that will occur as the result of a criminal conviction."
As demonstrated in Pattison the Washington State Patrol has, in the past, clearly seen the need to clarify inaccurate and misleading statutory warnings - going so far as to add language and/or punctuation.  First, the Washington State Patrol added a semicolon to change the meaning of RCW 46.20.308.   Again, contrary to the assertions of the respondent's in Pattison, this additional punctuation actually clarified a poorly drafted statute.  Second, following the Pattison decision, the Washington State Patrol clarified and revised the warnings to an even greater extent by pulling language directly from the decision itself, leaving the semicolon in place and adding the verbiage "regardless of your age."  Despite these beneficial changes to the warnings, neither the semicolon, nor the "regardless of your age" language, was left in the new warnings (although the legislature did correctly eliminate the reference to 46.61.503 which was legally incorrect).   
As the warnings now read, drivers are being warned that the only class of people who will be suspended for being in violation of RCW 46.61.502 or 46.61.504, are those people under 21.  This is simply incorrect and ultimately misleading; EVERYONE in violation of RCW 46.61.502 or 46.61.504 will lose their license - regardless of their age.
It is a fact that a driver 21 years of age or older may well be convicted of DUI with a breath alcohol content under the presumptive level of .08.  It is likewise a fact that a driver 21 years of age or older, whom exhibits signs of impairment by drugs, will be charged and likely convicted of DUI.  These individuals will be suspended, revoked, or denied a driver's license upon conviction as mandated by RCW 46.61.5055(6); this information should be conveyed to EVERY driver, not just those drivers who are under 21 years of age.  It is the position of the writers' of this article that law enforcement's failure to so advise should result in the suppression of all breath evidence.
While the concept(s) that: (1) a suspected DUI driver must have an opportunity to make a knowing and intelligent decision to take, or not, a breath/blood test, and (2) implied consent warnings read to a suspected DUI driver must be accurate and not misleading has been granted through the statutory process, it is clear that both are anchored in fundamental fairness and due process.   Moreover it is clear that warnings which are implicitly misleading and fundamentally unfair violate a suspected DUI driver's constitutional right to due process.  
 In explaining this rule, the court in Thompson stated that:
The relevant inquiry [is] whether "the warnings given afforded [Thompson] the opportunity to make a knowing and intelligent decision whether to take the Breathalyzer test."  Gonzales v. Department of Licensing, 112 Wn.2d 890, 897, 774 P.2d 1187 (1989).  The words "knowingly and intelligently" in the context of the implied consent warning first appeared in our law in Connolly v. State, 79 Wn.2d 500, 504, 487 P.2d 1050 (1971).  The failure to provide the driver with the opportunity to make a knowing and intelligent decision whether to take or refuse to take a test of his blood alcohol results in invalidation of the driver's license revocation.  Id.  Accord State v. Whitman County Dist. Court, 105 Wn.2d 278, 282, 714 P.2d 1183 (1986).  A similar result obtains in the criminal context.  State v. Trevino, 127 Wn.2d 735, 747, 903 P.2d 447 (1995) (accused has the right to make a knowing and intelligent decision whether or not to submit to a breath test, and "[f]ailure to give a proper implied consent warning will result in the suppression of the results of the [B]reathalyzer test.".
. . .
The "knowing and intelligent decision" rule applies now both to criminal proceedings and to administrative driver's license revocation hearings:  the accused must have been able to make a knowing and intelligent decision whether to take the BAC test.    No good reason presents itself for creating a different rule for commercial driver's license disqualification hearings.  The rule is anchored in fundamental fairness and due process, although we have previously considered the rule as a right "granted through the statutory process."  Whitman County Dist. Court, 105 Wn.2d at 281, 714 P.2d 1183.

Thompson at 791-92 (emphasis added).
 The writer's of this article submit that the Washington State Patrol warnings drafted as a result of the June 2004 changes to RCW 46.20.308 are so misleading as to be fundamentally unfair and thus violative of due process.  A driver 21 years of age or older could not be said to have made a knowing and intelligent decision when that driver is led to believe that there will be no criminal license sanction as the result of being convicted for DUI.  Again, as a result of the Washington State Patrol's current ICW's, a driver 21 years of age who believes that he/she is under the legal limit, has no apparent downside in agreeing to take a breath or blood test as it relates to his or her privilege to drive.  In truth, however, there may be a significant downside to providing the State with the very evidence it needs to convict him/her.  By providing this breath/blood evidence, these drivers may in fact be negatively impacting their ability to drive in the future.  The fact that the ICW's make this a surprise to these drivers is fundamentally unfair, and thus violates due process.
 As of the writing of this article, the issue of misleading and fundamentally unfair 2004 ICW's has been raised and successfully argued in courts throughout the State of Washington.   Such success has resulted in the revision of two cities' ICW forms, and may ultimately lead the Washington State Patrol to revise its own ICW form.  The remedy is simple, and the consequence alleviated is substantial.  The protection provided by an accurate implied consent warning is well documented and important; the citizenry of Washington deserves no less.

 Gonzalez v. Department of Licensing, 112 Wn. 2d 890, 897 (1989). 
  As of October 2004 the State Toxicologist has also authorized use of the Datamaster CDM.
  Jury v. State, Dept. of Licensing, 114 Wn.App. 726, 731, 60 P.3d 615 (2002).
  Town of Clyde Hill v. Rodriguez, 65 Wash App. 778, 785, (1989). 
  Cooper v. Department of Licensing, 61 Wn. App. 525, at 527 (1991).  See also,  Welch v. Department of Motor Vehicles, 13 Wash. App. 591, at 592 (1975); Mairs v. Department of Licensing, 70 Wash. App. 541, 546. (1993); State of Washington v. Whitman County District Court, 105 Wash.2d 278, at 282 (1986).  
  Moffitt v. City of Bellevue, 87 Wash. App. 144, at 148 (1997).
  Gibson v. Department of Licensing, 54 Wn.App. 188, 194, 773 P.2d 110 (1989). 
  Town of Clyde Hill v. Rodriguez, 65 Wash App. 778, 785, (1989). 
  See, Pattison v. DOL, 112 Wash. App. 670 (2002). 
  Cooper, at 528. 
  Id. (emphasis added).
  Pattison, at 675.  
  Pattison, at 675.  
  Pattison, at 675.  
  Pattison, at 675.  
  Thompson v. State Department of Licensing, 138 Wn.2d 783, 791-792 (1999)
  State v. Bostrom, 127 Wash. 2d 580, 590 (1995). 
  The issue has been raised and argued by the authors in conjunction with Bill Kirk, partner at Cowan Smith Kirk.

Eric Gaston is a Partner at the Law Firm of Veitch, Gaston & Kennedy, LLP, where his practice is limited to the defense of DUI.  Eric is the vice chair for the WSTLA Criminal Law Section, and President of the Northwest Academy of DUI Defense.

Greg Schwesinger is a criminal defense attorney with the Law Firm of Veitch, Gaston & Kennedy, LLP.  He is a 1994 graduate of Willamette University College of Law, and is currently a member of the National College for DUI Defense, and the Washington Association of Criminal Defense Lawyers.