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Kandler v. City of Kent

Court of Appeals of Washington, Division 1

May 15, 2017

JOANNE KANDLER, Petitioner,
v.
CITY OF KENT, a municipal corporation, Respondent.

          Spearman, J.

         After 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.

         FACTS

         In 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.

         Prior 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.

         DISCUSSION

         We are 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.

         Warrantless 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).

         Breath 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.

         The 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 541.

         The 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).

         In its 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.

         As part 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. Id.

         In 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, ยง 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 ...


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