Joanne Kandler's arrest for driving under the influence
of marijuana, an officer asked Kandler to consent to a blood
test. She agreed. Kandler later sought to suppress the blood
test evidence on the grounds that the officer did not read
her the warnings mandated by the implied consent statute, RCW
46.20.308, before obtaining her consent. But the implied
consent statute in effect at the time of Kandler's arrest
no longer mandated that the warnings be given before asking a
driver to consent to a blood test. We affirm the
admissibility of the evidence.
January 2015, Kandler was arrested for driving under the
influence of marijuana. An officer asked Kandler if she would
consent to a voluntary blood test. The officer informed
Kandler that she had the right to refuse; evidence from the
blood test could be used against her in legal proceedings;
she had a right to consult with an attorney before giving
consent; and consent was to be given knowingly, freely, and
voluntarily. Kandler consented to the blood test.
to trial, Kandler moved to suppress the blood test evidence
on the grounds that police failed to administer the warnings
required by the implied consent statute. The municipal court
granted Kandler's motion. The superior court, however,
reversed. The superior court ruled that by the implied
consent statute's plain language, it applies only to
breath tests and was inapplicable here, where a blood test
was at issue. We granted discretionary review.
asked to determine whether the superior court erred in
denying Kandler's motion to suppress evidence from the
warrantless blood test. Kandler contends that her consent to
the blood test was not valid because officers failed to give
the implied consent warnings set out in RCW 46.20.308. The
State argues that the blood test was a valid search under the
consent exception to the warrant requirement.
searches are unconstitutional unless they fall within "a
narrow set of exceptions" to the warrant requirement.
State v. Tibbies, 169 Wn.2d 364, 369, 236 P.3d 885
(2010) (citing State v. Ringer, 100 Wn.2d 686, 701,
674 P.2d 1240 (1983)). These exceptions include consent,
searches incident to valid arrest, and exigent circumstances.
Id. A warrantless search is lawful under the consent
exception where the State establishes that consent was freely
and voluntarily given. State v. Reichenbach, 153
Wn.2d 126, 131-32, 101 P.3d 80 (2004).
tests conducted subsequent to an arrest for driving under the
influence (DUI) are within the search incident to arrest
exception to the warrant requirement. State v.
Baird. 187 Wn.2d 210, 221, 386 P.3d 239 (2016). But,
under Washington's implied consent statute, RCW
46.20.308, drivers are given the choice of consenting to or
refusing a breath test, "with penalties attached for
refusal." Id. at 224.The implied consent
statute also grants drivers the right to warnings concerning
the legal effect of consenting or refusing consent to a
breath test, Id. at 223-24. The right to the
warnings and the right to refuse the test are not
constitutional but are granted as a matter of legislative
grace, Id. at 224.
issue in this case is whether the implied consent law in
effect at the time of Kandler's arrest applied to blood
tests. If it did, officers were required to provide the
statutory warnings and, absent those warnings, Kandler's
consent was not valid. State v. Avery, 103 Wn.App.
527, 535, 13 P.3d 226 (2000). If the statute did not apply to
blood tests, the State had only the burden of showing that
Kandler voluntarily consented to the test. Id. at
meaning of a statute is a question of law that we review de
novo. State v. Morales. 173 Wn.2d 560, 567 n.3, 269
P.3d 263 (2012). In interpreting a statute, our primary
concern is to discern the intent of the legislature.
Id. at 567. We begin with the statutory language.
Id. Where a statute's plain language is
unambiguous, we must give effect to that meaning. State
v. Bostrum, 127 Wn.2d 580, 586-87, 902 P.2d 157 (1995).
original form, the implied consent statute, RCW 46.20.308,
expressed the legislative determination that drivers in
Washington "are deemed to have consented to a test
of their breath or blood for the purpose of determining
their breath or blood alcohol content."
Id. at 583-84 (citing former RCW 46.20.308(1)
(1995)) (emphasis added). Three amendments to the implied
consent statute are relevant here.
of the 2012 initiative decriminalizing recreational
marijuana, Washington voters amended the statute to include
tetrahydrocannabinol (THC), the main active compound in
marijuana. Laws of 2013, ch. 3, § 31. Under that
amendment, the statute stated that drivers are "deemed
to have given consent ... to a test or tests of his or
her breath or blood for the purpose of determining the
alcohol concentration, THC concentration, or
presence of any drug in his or her breath or
blood." Id. (Emphasis added). The statute
mandated warning that, if the test indicates that the
driver's blood THC exceeds the legal limit, driving
privileges will be revoked for at least one year.
April 2013, the United States Supreme Court held that the
exigent circumstances exception to the warrant requirement
does not automatically apply to a test of a driver's
blood when a driver is under arrest for DUI. Missouri v.
McNeely,133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013).
In response to McNeely, . the Washington legislature
amended the implied consent statute to remove references to
blood tests. Laws of 2013, ch. 35, § 36; H.B. Rep. on
Engrossed Second Substitute H.B. 5912, 63rd Leg., 2d Spec.
Sess. (Wash. 2013). Under the 2013 amendment, the statute
retained the mandatory warning stating that, if the test
indicates a concentration of THC in the ...