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King v. State

May 19, 1997

JAMES E. KING, APPELLANT,
v.
STATE OF WASHINGTON, DEPARTMENT OF LICENSING, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 95-2-14310-5. Date filed: 03/15/96. Judge signing: Hon. James W. Bates Jr.

PER CURIAM. -- The Department of Licensing (DOL) revoked King's drivers license for refusal to submit to a breath test, and the revocation was sustained during a subsequent administrative review. King petitioned for de novo review by the superior court. After hearing testimony, the superior court entered findings of fact and Conclusions of law and affirmed the revocation. King appeals this decision.

We affirm because Officer Cozart's sworn report conferred on the DOL the jurisdiction to initiate proceedings to revoke King's driver's license, and the officer had reasonable grounds to believe that King was driving under the influence of intoxicating liquor, regardless of other possible explanations for King's erratic driving.

FACTS

Officer Steven Cozart testified that on February 10, 1995, at approximately 9:20 p.m., he received a radio dispatch of a possible intoxicated driver near a McDonald's restaurant. When Officer Cozart arrived there, King was leaving the drive-up window. Officer Cozart followed him and observed him make a very wide right-hand turn. King's vehicle then drifted to the left and crossed the raised separation line by 12-18 inches three or more times over the next one-half mile. At one point, King's car drifted completely into the left lane without signaling, causing a near collision. Officer Cozart activated his emergency lights and stopped King.

Standing just outside King's car door, Officer Cozart noticed that King was very slow and lethargic in responding to the officer's requests, sometimes requiring the officer to repeat his questions several times. King's eyes were bloodshot and had a watery, glassy look. Officer Cozart noticed an odor of alcohol on King's breath. In response to the officer's question about drinking, King said he had had two beers.

King then agreed to perform field sobriety tests. Officer Cozart asked King if he had any medical or physical problems that would prevent him from performing the tests. King said that several weeks earlier he had surgery on his right leg and he would not be able to perform some tests. King said his leg did not hurt at the time or cause him difficulty walking. Officer Cozart asked King if he was taking any medication. King responded that he was taking medication due to the surgery, but he did not know the name of the medication and he did not have it with him. In response to the officer's question as to whether King was supposed to be drinking on top of the medication, King replied, "No." King did not say when he had last taken the medication. King had difficulty performing the field sobriety tests. According to Officer Cozart, King "seemed to be struggling with listening and following directions."

Officer Cozart arrested King on suspicion of driving while intoxicated and transported him to the station. After receiving proper warnings, King refused to take the breath test. Officer Cozart completed a sworn report of King's refusal, which he forwarded to the DOL.

King testified that after working all day, he took two pain pills at 4 p.m. for leg pain. He had not eaten all day and felt lightheaded. At about 8:15 p.m., he went to a restaurant where he drank two beers. He then drove to the McDonald's. As he left the drive-up window, he placed the sack of food on the console, but it fell behind the seat. He reached back several times, trying to get the bag. King believed that the pain pills had a significant effect on his physical abilities and that the alcohol did not.

Dr. Michael Seiler, the orthopedic surgeon who operated on King's leg, testified that he prescribed the pain medication Vicodin. Although there is a very large difference in individual reactions to the medication, because it is a central nervous system depressant it can cause lethargy, delayed reactions and disorientation. While it causes pinpoint pupils, it would not necessarily cause bloodshot eyes. If taken on an empty stomach, the drug would have a more rapid effect. Alcohol consumed with the drug would increase the intensity of the depressant effect, but not the duration. Because both Vicodin and alcohol are central nervous system depressants, it is not possible to visually discern the relative effect on someone of the two substances. Dr. Seiler testified that it takes approximately 45 minutes for the drug to be well absorbed, and its peak effect occurs after two hours. By four hours, the vast majority of the drug has worn off. Thus, Dr. Seiler testified that the effect of the two Vicodin King had taken at 4 p.m. would be worn off by 9 p.m.

DOL'S JURISDICTION

King contends that the DOL was without jurisdiction to revoke his driver's license because the officer's sworn report stated that there were reasonable grounds to believe that King was under the influence of intoxicating liquor and/or drugs, but the version of RCW 46.20.308(6) then applicable referred only to intoxicating liquor. He contends that due to the additional language, the report asserted an unlawful basis for revocation.

A sworn or certified officer's report is a jurisdictional prerequisite to the DOL's power to revoke a driver's license. Broom v. Department of Licensing, 72 Wash. App. 498, 502, 865 P.2d 28 (1994); Waid v. Department of Licensing, 43 Wash. App. 32, 36, 714 P.2d 681, review denied, 105 Wash. 2d 1015 (1986); Metcalf v. Department of Motor Vehicles, 11 Wash. App. 819, 822, 525 P.2d 819 (1974). Receipt of the sworn report from the arresting officer is the jurisdictional prerequisite to the DOL's power to institute the license revocation proceeding. Martinez v. Department of Licensing, 70 Wash. App. 398, 401, 854 P.2d 43 (1993); Binckley v. Department of Motor Vehicles, 16 Wash. App. 398, 400, 556 P.2d 561 (1976). The existence of the report establishes the jurisdictional prerequisite. Martinez, 70 Wash. App. at 403. A technical deficiency in the officer's report does not deprive the DOL of jurisdiction to proceed. Broom, 72 Wash. App. at 503; Waid, 43 Wash. App. at 36. As the court stated in Broom, 72 Wash. App. at 503-04:

It is the existence of a certified report, not its contents, that confers jurisdiction on DOL and . . . the use of summary language in a report is adequate, so long as it sets forth the information required by RCW 46.20.308(6). In holding that the contents of a report are not the basis of DOL's jurisdiction, we do not suggest that a report containing a significant variation from or an omission of the information required under RCW 46.20.308(6) would be adequate to confer jurisdiction. We hold only that the use of summary language will not defeat jurisdiction where the summary language accurately conveys the information required under the statute. (Footnote omitted.) Thus, at a de novo trial the sworn statement is relevant only when the DOL relies on the sworn report and does not put on testimony. Martinez, 70 Wash. App. at 402-03; Lewis v. Department of Motor Vehicles, 81 Wash. 2d 664, 667, 504 P.2d 298 (1972).

In this case, Officer Cozart's sworn report conferred on the DOL the jurisdiction to initiate proceedings to revoke King's driver's license. The report set forth the information required by RCW 46.20.308(6). Addition of the reference to drugs was not a significant variation from the statutory language. Moreover, King cannot demonstrate that he was prejudiced by addition of the reference to drugs. Gonzales v. Department of Licensing, 112 Wash. 2d 890, 901, 774 P.2d 1187 (1989) (in a driver's license revocation proceeding where the arresting officer gave all the required implied consent warnings, but they contained ...


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