Superior Court of Kitsap County. Superior Court Docket No. 92-2-01453-1. Date Filed In Superior Court: January 5, 1994. Superior Court Judge Signing: James Maddock.
Petition for Review Granted February 6, 1997,
Written By: Houghton, A.c.j., Concurred In By: Turner, J., Armstrong, J.
The opinion of the court was delivered by: Houghton
HOUGHTON, A.C.J. -- Thomas R. Medcalf appeals a superior court order affirming the Department of Licensing's (the Department) revocation of his driver's license for refusing to take a breath test. Medcalf contends that the trial court erred in excluding (1) testimony from his treating physician that Medcalf could not take the breath test because he was experiencing an acute episode of obsessive-compulsive disorder (OCD) and (2) evidence that Medcalf was acquitted on the related charge of driving while intoxicated (DWI). Because evidence of a mental condition is not a defense for refusal to take a breath test, and because an acquittal for DWI is irrelevant to a revocation proceeding, we affirm.
FACTS AND PROCEDURAL HISTORY
On June 22, 1991, Winslow Police Officer Denise Giuntoli stopped Medcalf for driving without his headlights. She arrested Medcalf for exhibiting signs of intoxication and took him to the police station. Medcalf asked to speak to a lawyer upon arriving at the "BAC area where the Breathalyzer is" located. Medcalf was unable to reach his attorney by telephone, so he spoke with a public defender. Medcalf requested that the attorney come to the station, and when he would not, Medcalf again requested to speak to his lawyer. Officer Giuntoli told him he could contact any lawyer he chose, and Officer Kevin Jepson explained that the public defender would not come to the station.
After the Discussion regarding counsel, Officer Giuntoli read Medcalf his Miranda *fn1 rights. Medcalf acknowledged these rights and signed the form stating that he understood them. Medcalf invoked his right to remain silent. Officer Giuntoli then read Medcalf his implied consent rights. Medcalf was told that he had a right to refuse the breath test, but that if he refused his license would be revoked. Medcalf "stated that he wouldn't lose his license; he didn't believe [her]." Medcalf refused to submit to the breath test; Officer Giuntoli again explained the consequences of his refusal to take the test, but he still refused to take the test.
Officer Giuntoli issued Medcalf a citation for DWI. Medcalf refused to sign the citation and he was placed in jail. Officer Giuntoli testified that Medcalf appeared capable of answering her questions and, for the most part, did answer them. She submitted a "Report of Refusal" on Medcalf to the Department approximately nine months after the incident, which she had rewritten because the first report was apparently misplaced.
Officer Jepson corroborated Officer Giuntoli's statement that Medcalf insisted on having an attorney come to the station. When Medcalf was asked to take the breath test, he responded that he wanted an attorney brought to the station. Officer Jepson witnessed Officer Giuntoli read the implied consent form to Medcalf, and then explained the form to him. Officer Jepson also explained to Medcalf that his license would be revoked if he refused the test, to which Medcalf responded, "no, it won't." Officer Jepson testified that: Medcalf refused to sign the DWI citation, Jepson explained that Medcalf would be arrested for not signing the citation, Medcalf still refused to sign, and Medcalf was arrested and taken to jail.
Medcalf maintained that he wanted to take the breath test to prove that he was not intoxicated. Medcalf asserted that he tried to take the test, but was unable. He admitted that he asked to speak to an attorney and claimed that he only spoke to someone who purported to be the public defender. Medcalf admitted that he knew the consequences of refusing to take the breath test, but asserted that he was unable to submit to the test.
On May 21, 1992, the Department conducted a formal implied consent hearing pursuant to RCW 46.20.308(8). On June 12, 1992, the Department issued a written order finding that Medcalf was arrested, was advised of the statutory implied consent warnings, was not in a condition rendering him incapable of refusal, was not confused, and refused to take the breath test. On June 25, 1992, the Department issued an order revoking Medcalf's license for two years.
On July 23, 1992, Medcalf appealed the Department's revocation of his driver's license to superior court. The Department asserted that the court's de novo review was limited to the following issues: (1) whether the officer had reasonable grounds to believe that Medcalf was operating a vehicle under the influence of intoxicating liquor; (2) whether Medcalf was arrested; (3) whether the officer informed Medcalf of his statutory implied consent rights; and (4) whether Medcalf refused to consent to the breath test.
In his trial brief, Medcalf asserted that he suffers from OCD, an anxiety disorder. He then outlined testimony on OCD by his expert, Gerald M. Rosen, Ph.D. Medcalf maintained that he had an OCD episode on June 22, 1991. Medcalf stated that he drank some beer in Seattle after work and then took the 2:00 a.m. ferry to Winslow. He slept on the ferry and was awakened by a ferry worker knocking on his window. In his rush, he popped one of the lenses out of his glasses, so did not put them on before driving off of the ferry. He also forgot to turn on his headlights. Officer Giuntoli stopped Medcalf for driving without his headlights.
Medcalf explained his OCD to Officer Giuntoli; but, she still arrested him for exhibiting signs of intoxication. Medcalf claimed that he went to the station intending to take the breath test to prove that he was not intoxicated. Apparently, Medcalf wanted to take the test because his license had previously been suspended for a year. Medcalf claims that his OCD attack became more severe at the station and that his panic prevented him from taking the test and from signing the agreement to appear. Medcalf also asserted that he was found guilty of negligent driving, but not of DWI.
At the December 7, 1993 hearing, the Department moved to exclude all evidence regarding OCD and all reference to the related criminal proceeding. Medcalf made the following offer of proof regarding Dr. Rosen's testimony. Dr. Rosen testified that OCD is a brain disorder in which the brain has problems "inputting" information and regulating the emotional reactions to that information. He asserted that OCD is caused by the biology of the brain, either neurotransmitter levels or structural problems with the brain. Thus, he concluded that the underlying mechanism for OCD is a physical condition.
Dr. Rosen stated that Medcalf is one of his patients, who has an OCD "revolving around images of violence, crimes, and other stimuli associated with the judicial system." More specifically, Medcalf engaged in the ritual of duplicating his actions to purify his thoughts to control his bad thoughts.
Medcalf's OCD began after his daughter's death in 1981. Dr. Rosen testified that an episode involving the improper discharge of a weapon while Medcalf worked as a reserve police officer appeared to have provided the theme for his OCD. Dr. Rosen explained that in an OCD episode concerning thoughts, Medcalf would experience a thought and then believe that he had to think another particular thought to counteract the effect of the prior thought before he could continue his thoughts. Medcalf's episodes of OCD could be triggered by high levels of stress or by encountering a triggering situation.
Medcalf was treated unsuccessfully until 1985 when he checked into the UCLA's treatment unit. During his time at the UCLA program, Medcalf began experiencing undesirable thoughts about "prisons, executions and the judicial system," which he would counter by engaging in ritualistic, repetitive positive thoughts. Upon discharge from that program, Medcalf continued his ...