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State v. Fore

Supreme Court of Washington, En Banc

November 16, 2017

CHELAN COUNTY DISTRICT COURT, HON. ROY S. FORE, Judge, and ROBERT JAMES BOWIE, Real Party in Interest, Respondents.

          GORDON McCLOUD, J.

         In 2015, a Chelan County deputy sheriff arrested Robert James Bowie for driving while under the influence (DUI). Bowie received appropriate RCW 46.20.308 warnings about his right to refuse a breath test, signed the implied consent form, and agreed to take that breath test. But 20 minutes later, just before administering the test, the deputy asked Bowie if he would provide a "voluntary" sample. This time Bowie declined. The State charged Bowie with DUI plus a refusal enhancement.

         The Chelan County District Court granted Bowie's motion to suppress evidence of his refusal. It ruled that the deputy's statement that the test was "voluntary" was "inaccurate[ ]" and "potentially" misleading. Clerk's Papers (CP) at 65 (Conclusions of Law 4-6). The Chelan County Superior Court then denied the State's interlocutory petition for a writ of review. CP at 199-200.

         We granted direct review of that decision. State v. Bowie, 377 P.3d 744 (2016). We now affirm. RCW 7.16.040 governs the availability of the writ of review in superior court. This statutory writ of certiorari is an "extraordinary remedy." City of Seattle v. Holifield, 170 Wn.2d 230, 239, 240 P.3d 1162 (2010). Superior court review via writ was not available in this case.


         In the early morning of June 14, 2015, Deputy Sheriff Michael Morrison stopped Bowie on suspicion of DUI. Deputy Morrison observed that Bowie's "face was flushed and his eyes were blood shot, droopy and watery." CP at 34. Deputy Morrison ordered Bowie out of the car. Bowie was able to complete two of the three field sobriety tests he attempted and exhibited signs of impairment on both tests. CP at 35.

         Deputy Morrison then arrested Bowie for DUI. Once Bowie had been handcuffed and transported to the Chelan County Regional Justice Center, the deputy read him the statutory implied consent warnings and "properly advised [him] of his constitutional rights and the implied consent warning for breath pursuant to RCW 46.20.308, including advice that [Bowie] had the right to refuse the breath test." CP at 84 (Am. Finding of Fact (AFF) 2). Bowie signed the form acknowledging this. The deputy then asked Bowie if he would submit to that breath test. Bowie "initially stated that he would." CP at 84 (AFF 5). But at the moment that the deputy offered the breath test apparatus to Bowie, Bowie applied lip balm. The deputy therefore started the 15 minute observation period all over again. At the end of that period, the deputy asked Bowie if he would "provide a voluntary sample." CP at 84 (AFF 7). Immediately after that description of the sample, Bowie refused.[1]


         The State charged Bowie with DUI plus a refusal enhancement. CP at 29-30. Bowie moved to suppress evidence of his refusal on the ground that the deputy's characterization of the breath test as "voluntary, " when refusal actually carries serious adverse consequences, deprived Bowie of his right to make a "knowing and intelligent decision" about taking or refusing that breath test. CP at 55. The district court granted that motion.[2]

         The State sought interlocutory review via petition for writ of review in the superior court, pursuant to RCW 7.16.040. After briefing and argument, the superior court denied the State's petition due to lack of probable error by the lower court. CP at 195-96. The State then sought direct review in this court, which we granted. Bowie, 377 P.3d 744.


         I. Introduction

         The State argues that there is some tension in our cases about whether all erroneous implied consent warnings require suppression of breath test results and/or breath test refusals. It argues that review of the suppression order in this case would allow us to clarify our holdings on that point; it urges us to adhere to precedent stating that departures from the implied consent warnings may be evaluated for severity of error or prejudice. E.g., Gonzales v. Dep't of Licensing, 112 Wn.2d 890, 901-05, 774 P.2d 1187 (1989) (civil action; dicta that no prejudice necessarily required in criminal case "where the officer omits an entire portion of the statutorily mandated warning"); Lynch v. Dep't of Licensing, 163 Wn.App. 697, 711, 262 P.3d 65 (2011) (prejudice must be shown in civil case); State v. Elkins, 152 Wn.App. 871, 878, 220 P.3d 211 (2009); Grewal v. Dep't of Licensing, 108 Wn.App. 815, 822, 33 P.3d 94 (2001). As noted, most of those cases requiring some showing of prejudice to grant relief are civil. But not all. See State v. Bartels, 112 Wn.2d 882, 884, 774 P.2d 1183 (1989) (granting relief only to indigent defendants because they were the only ones who might have been prejudiced by inaccurate warning about obtaining additional test '"at your own expense'"). The State concludes that the erroneous advice in Bowie's case was minor and harmless and that the defendant should bear the burden of proving that such minor errors caused prejudice.

         In contrast, Bowie argues that the district court's suppression decision is not a reviewable interlocutory order under the strict standards of RCW 7.16.040, governing availability of review. He continues that if we reach the merits of the substantive arguments in this case, we should affirm. He urges us to adhere to our line of cases holding that erroneous warnings that understate the adverse consequences of a DUI suspect's decision to refuse the breath test require automatic suppression. E.g., State v. Whitman County Dist. Court, 105 Wn.2d 278, 286-88, 714 P.2d 1183 (1986); State v. Turpin, 94 Wn.2d 820, 827, 620 P.2d 990 (1980).

         The State is correct that there is some tension between these two lines of authority where, as here, it's a close call whether the erroneous warning influenced the defendant. For that reason, as discussed below, we agree with Bowie that the writ of review was not available under RCW 7.16.040, which (as relevant here) limits review to decisions where the trial court "act[ed] illegally."

         II. RCW 7.16.040 governs the availability of interlocutory review of the district court's decision in the superior court via writ of review; since the district court did not "act[] illegally, " that writ was unavailable

         RCW 7.16.040 sets forth the prerequisites to interlocutory superior court review of the district court's suppression order. That statute provides that "[a] writ of review shall be granted" when a lower court (1) "has exceeded [its] jurisdiction" or is "acting illegally" and (2) no appeal or "any plain, speedy and adequate remedy at law" exists. RCW 7.16.040. In this case, the district court clearly had jurisdiction over Bowie's suppression motion; equally clearly, no other speedy pretrial remedy is available. So the question here is whether the district court "act[ed] illegally."

         In Holifield, we provided a '"simple and straightforward'" definition of these words, which, until that point, had been "far from a model of clarity." 170 Wn.2d at 245, 241 (quoting Geoffrey Crooks, Discretionary Review of Trial Court Decisions under the Washington Rules of Appellate Procedure, 61 WASH. L. REV. 1541, 1554 (1986)). We borrowed language from RAP 2.3(b)(1)-(3) and RAP 13.5(b) and stated that a lower court is "acting illegally" for purposes of RCW 7.16.040 when it "(1) has committed an obvious error that would render further proceedings useless; (2) has committed probable error and the decision substantially alters the status quo or substantially limits the freedom of a party to act; or (3) has so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of revisory jurisdiction by an appellate court." Id. at 244-45.

         These are very demanding standards. They make sense, though, because review as a matter of right is available if the suppression order effectively terminates the government's case (RALJ 2.2(c)(2); RAP 2.2(b)(2)); but where, as here, suppression is less critical to the outcome, the trial should typically proceed uninterrupted. Thus, a district court that relies on existing case law has not "act[ed] illegally" so its decision is appropriately shielded from immediate interlocutory RCW 7.16.040 review.

         The district court in this case relied on just such existing case law. It applied one of two possible lines of applicable precedent-the line that requires automatic suppression of refusal evidence due to erroneous warnings (without proof of prejudice). CP at 86; Whitman County, 105 Wn.2d at 286-88; Turpin, 94 Wn.2d at 827. In reviewing that decision, the superior court correctly concluded that "[b]ased on the current nature of the law in the area of DUI implied consent and breath testing, the State has only shown possible error." CP at 195-96. Bowie is therefore correct that under RCW 7.16.040, the superior court did not err in denying the State's petition.

         To be sure, review is available in our court. Under RAP 2.3(d), appellate courts may accept review of "a superior court decision entered in a proceeding to review a decision of a court of limited jurisdiction" if that decision "involved" "a significant question of law under the Constitution of the State of Washington or of the United States" or "involves an issue of public interest which should be determined by an appellate court." RAP 2.3(d)(2), (3). What we are reviewing, though, is the superior court's decision. In this case, the superior court decided it lacked jurisdiction to issue a writ. Since that decision was correct, our review of this interlocutory appeal ends.

         This is clear from our decision in Commanda v. Cary, 143 Wn.2d 651, 655, 23 P.3d 1086 (2001). In that case, the defendants argued that the portion of the Spokane Municipal Code governing DUI sentencing violated the constitutional right to equal protection and that the DUI charges against them should therefore be dismissed. Id. at 654. The municipal court denied the motions. The superior court granted writs of review and reversed; it ruled that the ordinance at issue was unconstitutional. We then granted direct review and reversed the superior court. We did not, however, rule on the merits of the equal protection clause issue. Instead, we held that the defendants failed to establish the statutory prerequisites to issuance of the writ by the superior court. For that reason, the superior court erred in granting review and abused its discretion by denying a motion to quash the writ. Id. at 653, 657. Commanda thus stands for the rule that in cases like this, we review the superior court's decision on whether it had authority to grant or deny the interlocutory writ of review first. Accord Holifield, 170 Wn.2d at 246 (writ of review should not issue to review municipal court's suppression order that, if erroneous, "would constitute at most a mere error of law that, without more, would not justify issuance of a writ of review"). Thus, the superior court here properly denied the interlocutory writ of review.


         We hold that RCW 7.16.040 governs the availability of the writ of review in superior court. Under RCW 7.16.040, the superior court correctly denied the ...

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