Appeal from Superior Court of Skagit County. Docket No: 94-2-00644-7. Date filed: 06/22/95. Judge signing: Hon. George E. McIntosh.
PER CURIAM. The Department of Licensing appeals the superior court decision reinstating Thomas Kurenoff's commercial and personal driver's licenses. Kurenoff was arrested for driving while intoxicated, but refused to submit to a breath test. As a result, the Department of Licensing revoked his driver's licenses. *fn1 Kurenoff appealed the revocations to the superior court, which reinstated both licenses.
We reverse because (1) Kurenoff's refusal to take a breath test may be used in this civil revocation proceeding even if inadmissible at a criminal trial. City of Spokane v. Kruger, 116 Wash. 2d 135, 143 n.8, 803 P.2d 305 (1991). Furthermore, Kurenoff was advised of his rights sufficiently in advance of the request for a breath sample for him to knowingly and intelligently decide whether to submit to the test. State v. Trevino, 127 Wash. 2d 735, 903 P.2d 447 (1995); and (2) the arresting officer had a well founded suspicion that Kurenoff was driving while under the influence of intoxicants or with alcohol in his system.
The following facts are undisputed. In the evening of October 8, 1993, Ron Hyatt, a Commercial Vehicle Enforcement Officer for the Washington State Patrol, observed Thomas Kurenoff walk from a mini mart to his commercial truck. Kurenoff had a sack under his arm and was staggering. Officer Hyatt suspected that Kurenoff might be intoxicated, so he drove to a nearby restaurant and contacted Washington State Patrol Trooper Jeff Lee. Officer Hyatt then returned to the mini mart and spoke with the clerk, who stated that Kurenoff had purchased a six-pack of beer.
Officer Hyatt saw the truck leave the parking lot and drive toward Interstate 5. He then returned to the restaurant and told Trooper Lee what he had learned.
Trooper Lee followed the truck and observed that at approximately midpoint of the freeway on-ramp, it crossed the fog line by the width of one wheel for a distance of approximately 15-30 feet. He then stopped the truck and observed that Kurenoff had a strong odor of intoxicants, slightly slurred speech, and bloodshot, watery eyes. Kurenoff was unsteady on his feet and leaned on his truck for support. In the truck Kurenoff had "unopened cans of beer in a gym bag, an empty sack of Rainer Beer, and a full unopened can of beer in a sock." Kurenoff had difficulty completing or was unable to complete the field sobriety tests. Trooper Lee arrested Kurenoff on suspicion of driving while intoxicated and transported him to the police station for a breath test.
At the station Trooper Lee did a mouth check and then informed Kurenoff of his Miranda *fn2 warnings. Kurenoff signed the warnings form. The trooper then advised Kurenoff of his implied consent warnings for both his commercial vehicle license and his personal vehicle license. Kurenoff signed the warning forms. He did not call an attorney, although the trooper suggested several times that he call one.
Kurenoff refused to submit to a breath test. Accordingly, the trooper informed the Department of Licensing of the refusal, and the Department revoked Kurenoff's driver's licenses.
The trial court concluded that under State v. Trevino, 74 Wash. App. 496, 873 P.2d 1214 (1994), rev'd, 127 Wash. 2d 735, 903 P.2d 447 (1995), Kurenoff's refusal to take a breath test was not a basis to revoke his driver's licenses because the trooper did not advise Kurenoff of his constitutional rights until after he checked Kurenoff's mouth in preparation for the breath test. The court also concluded that Kurenoff did not commit a traffic violation and that the stop of Kurenoff's vehicle was a pretext to investigate the trooper's suspicion that Kurenoff was driving while under the influence of intoxicants. Accordingly, the court ordered the Department to reinstate Kurenoff's driving privileges.
Because the revocation of a driver's license under the implied consent statute is a civil administrative proceeding, separate and distinct from the criminal proceedings that might ensue following a driver's arrest for driving while under the influence of intoxicants, a driver's refusal to take a breath test may be used in a revocation proceeding even if inadmissible at the driver's criminal trial. City of Spokane v. Kruger, 116 Wash. 2d 135, 143 n.8, 803 P.2d 305 (1991); Gonzales v. Department of Licensing, 112 Wash. 2d 890, 900, 774 P.2d 1187 (1989); Brewer v. Department of Motor Vehicles, 23 Wash. App. 412, 415, 595 P.2d 949 (1979).
Moreover, the trial court did not have the benefit of the Supreme Court's decision in Trevino, where the court held that in the absence of prejudice to the driver, suppression of breath analysis test results is not required when an arresting officer checks a suspect's mouth in preparation for a breath test prior to informing the suspect of his right to counsel under CrRLJ 3.1(c)(1) or giving the suspect his implied consent warnings.
Trooper Lee checked Kurenoff's mouth prior to advising him of his right to an attorney and prior to advising him of his implied consent warnings. The trooper began the advisement of rights at 10:15 and completed it at 10:30. Thereafter, Kurenoff declined to call an attorney, although the trooper several times suggested that he call one. The trooper then prepared the machine to accept a breath sample and asked Kurenoff to submit to the test, but he refused. Kurenoff was advised of his rights sufficiently in advance of the request for a breath sample to knowingly and intelligently decide whether to submit to the test. Trevino, 127 Wash. 2d at 745, 748.
Finally, we conclude that the trooper had a well-founded suspicion based on articulable facts that Kurenoff was driving while under the influence of intoxicants or was driving a commercial motor vehicle with alcohol in his system. RCW 46.61.502; RCW 46.25.110. See Campbell v. Department of Licensing, 31 Wash. App. 833, 644 P.2d 1219 (1982). Trooper Lee knew that shortly before the stop, another officer had seen Kurenoff staggering across a mini mart parking lot with a sack under his arm and that Kurenoff had just purchased beer. When the trooper observed Kurenoff drive over the fog line for 15-30 feet, his suspicion was sufficiently confirmed to justify stopping Kurenoff, regardless of whether Kurenoff had committed a traffic infraction. It is undisputed that once Kurenoff was stopped, the officer's additional observations gave him probable cause to arrest Kurenoff for driving while intoxicated.