* State Of Washington, Petitioner V. Darren J. Robison, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Petitioner,
v.
DARREN J. ROBISON,
Respondent.
No. 72260-3-1
DIVISION ONE
PUBLISHED OPINION
CO
FILED: 	February 16,2016 	co
Leach, J. — Before an officer gives a breath test to a person reasonably
believed to be driving under the influence, an officer must provide that driver with
certain warnings required by statute. 	Here, the State asks this court to reverse a
superior 	court 	decision 	suppressing 	breath 	test 	results 	because 	the 	officer
omitted the statutorily required warnings about marijuana. 	The State contends
that a defendant must show prejudice before a court can suppress breath test
results 	because 	of 	incomplete 	warnings. 	Thus, 	because 	the 	breath 	test
administered to Darren J. 	Robison could not measure the active ingredient in
marijuana, tetrahydrocannabinol (THC), the State claims that he cannot show
that the 	officer's 	omission 	prejudiced 	him. 	Because 	the 	applicable 	statute
required the marijuana warning and Robison was not required to show prejudice
caused by its omission, we affirm the superior court.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 72260-3-1 / 2
FACTS
On June 29, 2013, Washington State Patrol Trooper B.S. Hyatt stopped
Darren J. 	Robison for traffic violations. 	Trooper Hyatt smelled intoxicants and
marijuana. 	Trooper Hyatt asked 	how 	long it had 	been 	since 	Robison 	had
smoked 	marijuana. 	Robison 	responded that it had 	been a couple of hours.
Trooper Hyatt arrested Robison. 	At the Tulalip Police Department, officers read
Robison an "Implied Consent Warning for Breath" form, which Robison stated he
understood and signed. 	The form included warnings only about alcohol and did
not include any marijuana-related warnings. 	The two breath tests given Robison
both produced results over the legal limit.
The State charged 	Robison with driving 	under the influence. 	Robison
asked the district court to suppress evidence based on an illegal stop and to
suppress the breath test because Robison did not receive all required implied
consent warnings. 	The district 	court denied 	the 	motion. 	It concluded that
Trooper Hyatt had probable cause to stop Robison. 	The district court also took
judicial notice that the breath test used cannot detect THC. 	It noted that Trooper
Hyatt's warning 	specified that the purpose of the test was to determine the
alcohol concentration in Robison's breath. 	The district court decided that the
implied 	consent 	warnings 	given 	accurately 	informed 	Robison 	of 	the
consequences of the breath tests, which "were all the warnings that were legally
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NO. 72260-3-1 / 3
required on the date of violation given the decision facing the defendant." 	The
district court found Robison guilty but stayed his sentence pending his appeal.
Robison appealed to the superior court. 	The superior court reversed the
district court. 	It found that the marijuana-related warnings were a significant part
of the required implied consent warnings and the failure to give these warnings
under the circumstances made the warnings given incomplete and misleading.
The superior court suppressed the test results and remanded the case to the
district court for further proceedings consistent with its decision.
This 	court granted 	the 	State's 	request for 	discretionary 	review of the
superior court's decision.
STANDARD OF REVIEW
We review de novo a superior court's legal conclusions about suppression
of evidence.1 	We also review de novo the legal sufficiency of implied consent
warnings.2
ANALYSIS
The State contends that a court measures the sufficiency of statutorily
required 	implied 	consent 	warnings 	by 	deciding 	if, 	based 	on 	a 	case's
circumstances, 	the 	warnings 	given 	allow 	the 	recipient 	to 	knowingly 	and
intelligently decide whether to take a breath test. 	The State claims this means an
1 State v. Chacon Arreola. 176 Wn.2d 284, 291, 290 P.3d 983 (2012).
2 State v. Morales, 173 Wn.2d 560, 567, 269 P.3d 263 (2012).
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NO. 72260-3-1 / 4
officer has discretion to tailor the warnings by omitting language he decides is
"irrelevant." 	It also means that the warning recipient must show prejudice before
a court can suppress test results. 	We disagree because we cannot ignore the
plain language of a statute adopted by Washington voters.
We 	begin 	our 	analysis 	by 	reviewing 	the 	general 	framework 	of
Washington's implied consent statute. 	We then 	look at the language of the
applicable statute, RCW 46.20.308, in effect at the time of Robison's arrest.
Before giving a breath test to a person reasonably believed to be driving
under the influence, an officer must provide that person with certain warnings
required by statute. 	Specifically, an officer must inform the driver of his right to
refuse the test or to have additional tests done.3 	The officer's warning must also
state that refusal to take the test will result in license revocation, that the refusal
may be used at a criminal trial, and that the driver may be eligible for an ignition
interlock license.4 	Pertinent to this case, the officer must also warn about the
consequences of certain test results. 	This warning has changed several times in
recent years.
On 	November 	6, 	2012, 	Washington 	voters 	enacted 	Initiative 	502,
legalizing some uses of marijuana.5 	This initiative also amended the test result
3 RCW 46.20.308(2).
4 RCW46.20.308(2)(a), (b), (d).
5 Laws of 2013, ch. 3 (effective Dec. 6, 2012).
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NO. 72260-3-1 / 5
warning in former RCW 46.20.308(2) by adding a warning about marijuana test
results:
The 	officer shall 	warn 	the 	driver, 	in substantially the 	following
language, that:
(c) 	If 	the 	driver submits 	to 	the 	test 	and 	the 	test 	is
administered, the driver's license, permit, or privilege to drive will be
suspended, revoked, or denied for at least ninety days if:
(i) 	The 	driver 	is 	age 	twenty-one 	or 	over 	and 	the 	test
indicates either that the alcohol concentration of the driver's breath
or blood 	is 	0.08 or more or that the THC concentration of the
driver's blood is 5.00 or more.[6]
The legislature again amended RCW 46.20.308, effective September 28,
2013, to omit the language "or blood" from the quoted section as well as other
references to implied consent for a 	blood test.7 	Later, the legislature again
amended 	this 	statute, 	effective 	September 26, 	2015, 	to eliminate a 	driver's
implied consent to a test for THC or any other drug and the warning language at
issue in this case, "or that the THC concentration of the driver's blood is 5.00 or
more."8
Before giving Robison the challenged breath tests, Trooper Hyatt read to
Robison an "Implied Consent Warning for Breath" form. 	It provided the following
warnings about test results:
6 Laws of 2013, ch. 3, §31.
7 Laws OF 2013, 2d Spec. Sess., ch. 35, § 36.
8RCW46.20.308(2)(c)(i).
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NO. 72260-3-1 / 6
FURTHER, YOU ARE 	NOW BEING ASKED TO SUBMIT TO A
TEST 	OF 	YOUR 	BREATH 	WHICH 	CONSISTS 	OF 	TWO
SEPARATE 	SAMPLES 	OF 	YOUR 	BREATH, 	TAKEN
INDEPENDENTLY, 	TO 	DETERMINE 	ALCOHOL
CONCENTRATION.
2. 	YOU ARE FURTHER ADVISED THAT IF YOU SUBMIT TO
THIS BREATH TEST, AND THE TEST IS ADMINISTERED,
YOUR DRIVER'S LICENSE, PERMIT, OR PRIVILEGE TO
DRIVE WILL BE SUSPENDED, REVOKED, OR DENIED BY
THE 	DEPARTMENT 	OF 	LICENSING 	FOR 	AT 	LEAST
NINETY DAYS IF YOU ARE:
(A) 	AGE 	TWENTY-ONE OR 	OVER 	AND 	THE 	TEST
INDICATES THE ALCOHOL CONCENTRATION OF
YOUR BREATH IS 0.08 OR MORE, OR YOU ARE IN
VIOLATION OF RCW 46.61.502, 	DRIVING UNDER
THE INFLUENCE, OR RCW 46.61.504, 	PHYSICAL
CONTROL 	OF 	A 	VEHICLE 	UNDER 	THE
INFLUENCE.
Thus, Trooper Hyatt warned 	Robison 	about the consequences of test
results showing a certain level of alcohol concentration in his breath, but not the
consequences of results showing a prohibited level of THC concentration in his
blood. 	The superior court suppressed the test results because of this omission.
The State asks this court to reverse the superior court, claiming that an
officer 	has 	discretion 	to 	omit 	"irrelevant" 	information 	from 	implied 	consent
warnings and that defendant must show prejudice before a court can suppress
breath test results because of incomplete warnings. 	The State reasons that
because the breath test administered to Robison could not measure THC levels,
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NO. 72260-3-1/7
the 	THC warning 	was 	irrelevant 	and 	he 	cannot show 	prejudice 	caused 	by
Trooper Hyatt's omission of the warnings about THC test result consequences.
Robison responds that the statute's plain language says that an 	officer "shall
warn" the accused, leaving Trooper Hyatt without discretion to omit any part of
the statutory warning. 	He further 	responds that he does 	not have to show
prejudice.
When interpreting a statute, this court has the primary goal of carrying out
legislative intent.9 	When the language of a statute is unambiguous, this court
may not change the statute's plain meaning by construction.10 	Following this
rule, Washington cases have "consistently required strict adherence to the plain
language of the implied consent statute."11 	Two Supreme Court cases show this
history.
In State v. 	Whitman 	County 	District Court,12 officers warned 	accused
drivers that a refusal to submit to a breath test "shall" be used against them at
trial instead of the statutory language "may." 	The Supreme Court affirmed the
district court's suppression of the breath test results. 	The court stated that the
implied consent statute used the word "may" and the statute was "worded in the
mandatory sense." 	This meant that "the officer had no discretion with regard to
9 City of Seattle v. St. John. 166 Wn.2d 941, 945, 215P.3d 194(2009).
10 State v. Bostrom, 127 Wn.2d 580, 586-87, 902 P.2d 157 (1995).
11 Bostrom, 127 Wn.2d at 587.
12 105 Wn.2d 278, 714 P.2d 1183 (1986).
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NO. 72260-3-1 / 8
the wording he used to warn the accused."13 	The court also noted that the word
"shall" conveyed 	a 	different meaning than the word "may" and 	had 	a "more
coercive impact."14
In State v. Bostrom,15 the Supreme Court reviewed consolidated district
court cases in which the district court suppressed breath test results of drivers
who took the test and evidence of refusal by drivers who did not. 	Each driver
received all the warnings required by the implied consent statute. 	The drivers
who refused to take the test claimed that they also should have been warned that
they risked enhanced penalties if convicted of driving while intoxicated. 	The
district court agreed. 	The Supreme Court reversed, holding that the additional
warning was not required and noting that the statutory warning sufficiently alerted
drivers that a refusal could be used at any phase of a criminal trial.16
The drivers who took the test claimed that the officers' failure to warn them
about 	new administrative 	consequences 	of certain 	test 	results 	deprived 	the
drivers of the opportunity to make an informed decision about taking the test.
Again, the district court agreed, and the Supreme Court did not.17 	The Supreme
13 Whitman, 105 Wn.2d at 285.
14 Whitman, 105 Wn.2d at 285-86.
15 127 Wn.2d 580, 902 P.2d 157 (1995).
16 Bostrom, 127 Wn.2d at 586.
17 Bostrom, 127 Wn.2d at 586-87.
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NO. 72260-3-1 / 9
Court's 	reasons for 	reversing 	the 	district court 	bear directly on 	the 	State's
position in this case.
The drivers supported their position with the Supreme Court's observation
in Whitman18 and Gonzales v. Department of Licensing19 that the legislature
intended the 	implied consent statute to provide drivers with an 	opportunity to
make an informed decision about taking a breath test.20 	The court stated that
this 	observation 	did 	not 	mean 	that this 	purpose "was 	a 	requirement which
overrode the plain language of the statute."21 	It then stated the applicable rule of
statutory construction: 	"When the language of a statute is unambiguous, courts
may not alter the statute's plain meaning by construction."22 The court noted that
consistent with this rule, "Washington case law has consistently required strict
adherence to the plain language of the implied consent statute."23
Significantly, 	the 	Bostrom 	opinion 	expressly 	disapproves 	of 	any
suggestion that Washington courts will approve warnings in language other than
that stated in the statute because the statutory language denies an arrested
18 Whitman, 105 Wn.2d at 281.
19 112 Wn.2d 890, 897, 774 P.2d 1187 (1989).
20 Bostrom, 127 Wn.2d at 586.
21 Bostrom, 127 Wn.2d at 586.
22 Bostrom, 127 Wn.2d at 586-87.
23 Bostrom, 127 Wn.2d at 587.
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NO. 72260-3-1/10
driver the opportunity to exercise an intelligent judgment.24 	When considering
the State's arguments against suppression, we must follow Bostrom.
Officer Discretion To Modify Statutory Warning
We first address the State's claim that an officer has discretion to omit
from an implied consent warning a part of the statutory language that he decides
is irrelevant 	in a 	particular 	case. 	The 	State 	relies 	exclusively 	on 	State v.
Richardson25 to support this claim. 	It does not.
In Richardson, the court considered if the implied consent statute required
that an arresting officer advise a driver not only "of his right to have additional
tests administered by a qualified person of his own choosing, but also that he
advise that such a person may be a physician, qualified technician, chemist or
registered nurse."26 	Although the statute did not require the second warning, the
drivers 	claimed 	they 	needed 	it to 	understand 	their 	rights. 	The 	court 	held
sufficient a warning in the language of the statute. 	The case did not involve any
claim that an officer can omit from a warning language the statute required. 	It
provides no support for the State's position.
The State's briefing does not address our Supreme Court's statement in
Whitman that the mandatory language of the implied consent statute meant "the
24 Bostrom, 127 Wn.2d at 587.
25 81 Wn.2d 111, 112, 499 P.2d 1264(1972).
26 Richardson, 81 Wn.2dat112.
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NO. 72260-3-1 /11
officer 	had 	no 	discretion 	with 	regard 	to 	the 	wording 	he 	used 	to 	warn 	the
accused."27 We must heed this observation. Additionally, the State cites no case
where 	a 	Washington 	appellate 	court 	has 	accepted 	the 	proposition 	that 	an
arresting officer has discretion to edit implied consent warnings as he deems
appropriate to the facts of a case.
Finally, 	as we 	noted 	earlier, 	in 2015 the 	legislature deleted from 	the
statutory warning the reference to THC concentration. 	The legislature engaged
in a 	meaningless amendment of the statute if an 	officer was not required to
include this reference before the amendment. 	Our decision gives meaning to the
amendment.
Conseguence of Warning Omission
We next consider the State's claim that "[Ijegally accurate warnings do not
trigger suppression, even if elements or adverse consequences are left out," so
long as the warnings given provide the driver with "'an opportunity to knowingly
and intelligently decide whether to take an evidentiary breath test.'"28
The 	State 	claims 	Bostrom 	and 	Grewal 	v. 	Department 	of 	Licensing29
support 	its 	claim 	that 	an 	officer 	may 	omit 	from 	implied 	consent 	warnings
elements of the statutory language or adverse consequences. We disagree.
27 Whitman, 105 Wn.2d at 285.
28 State v. Koch, 126 Wn. App. 589, 594, 103 P.3d 1280 (2005).
29 108 Wn. App. 815, 33 P.3d 94 (2001).
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NO. 72260-3-1/12
In Bostrom. the court considered claims that an arresting officer must give
warnings in addition to those required by the implied consent statute. 	The court
rejected these 	claims, 	stating that it was "not free to graft onto the implied
consent statute any additional warnings not contained in the plain language of
that statute."30 	The court never considered any claim that the arresting officer
could omit some part of the statutorily required warning.
In Grewal. the court considered a driver's claim that the arresting officer
must include in his warnings a description of the elements of the crime for which
he arrested the driver.31 	The officer gave Grewal the implied consent warnings
required by statute and informed Grewal that he was arrested for violating RCW
46.61.503, "'[bjeing under 21 years of age and driving or being in actual physical
control of a 	motor vehicle after consuming 	alcohol.'"32 	Grewal claimed this
warning was insufficient because the officer did not also tell Grewal that violation
of this provision required proof that his blood alcohol concentration was more
than 0.02, but less than 0.08.33
This court rejected Grewal's claim. 	It did not consider, much less decide,
if an arresting officer could omit any part of a warning required by the implied
consent statute. 	Once again, the State fails to distinguish between omitted
30 Bostrom, 127 Wn.2d at 587.
31 Grewal, 108 Wn. App. at 821.
32 Grewal, 108 Wn. App. at 821 (alteration in original).
33 Grewal, 108 Wn. App. at 821.
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NO. 72260-3-1/13
warnings required by statute and additional warnings not required by the express
language of the implied consent statute.
The 	State 	also 	contends 	that 	incomplete 	warnings 	should 	result 	in
suppression of breath test results only if the driver can demonstrate it prejudiced
him. 	The State relies on State v. Bartels,34 State v. Elkins,35 and Grewal.
In Bartels, the court considered the admissibility of breath tests given after
the arresting officer included additional language in the implied consent warning
not contained 	in the statute. 	The officer told 	Bartels about his 	right to 	an
additional test "'at your own expense."'36 	The court held this additional language
improper.37 	It remanded the consolidated cases before it to allow the State to
prove if any defendant had the financial ability to obtain an additional test at the
time of arrest.38 	Unless the State proved this, 	the 	breath tests were to 	be
suppressed.
Thus, the court did not require the drivers receiving improper warnings to
prove prejudice. 	Instead, the State had to 	prove the improper warning was
"'harmless beyond a reasonable doubt.'"39 	Additionally, in each case, the officer
34 112 Wn. 2d 882, 774 P.2d 1183 (1989).
35 152 Wn. App. 871, 220 P.3d 211 (2009).
36 Bartels. 112 Wn.2d at 884.
37 Bartels. 112 Wn.2d at 889.
38 Bartels. 112 Wn.2d at 890.
39 Bartels. 112 Wn.2d at 890 (quoting Chapman v. California. 386 U.S. 18,
24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)).
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NO. 72260-3-1 /14
gave the warning required by statute but added additional language not found in
the statute.40
Here, the State cannot prove that the incomplete warning was harmless.
As the superior court concluded, Robison smelled of marijuana when arrested
and 	admitted 	smoking 	marijuana 	to 	the 	arresting 	officer. 	Under 	these
circumstances, we cannot conclude beyond a 	reasonable doubt that Robison
would have agreed to take the breath test had he received the THC warning.
In Elkins, the court considered a claim that the trial court should not have
admitted evidence of Elkins's refusal to take the breath test because the statutory
implied consent warnings did not fully inform her of the consequences of refusing
the 	test. 	This court disagreed 	and 	held the 	refusal 	admissible. 	This court
specifically noted that the arresting officer had no authority to add warnings "'not
contained in the plain language of the implied consent statute.'"41 	Elkins provides
no support for the State's position.
As previously explained, Grewal did 	not involve an incomplete implied
consent warning. 	It provides no support for the State's position.
The 	State's 	position 	ignores the 	requirement that 	it prove the facts
required for the admission of a breath test. 	The Supreme Court has interpreted
the implied consent statute to place "squarely on the State the burden of proving"
40 Bartels, 112 Wn.2d at 886-87.
41 Elkins, 152 Wn. App. at 877 (quoting Koch, 126 Wn. App. at 594).
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NO. 72260-3-1/15
implied consent warnings were given before a court admits test results.42 	The
defendant has no obligation to present evidence or show prejudice.43
Because the 	State cannot show that an 	officer gave 	Robison 	all the
statutorily 	required 	warnings, 	it cannot establish 	the foundation 	required 	for
admission of the breath tests given to him. 	While cases have characterized this
result as suppression, when the State cannot show that it complied with the
implied consent statute, the State has failed 	to 	meet its burden of proof for
admission of evidence it offers to prove guilt. 	The defendant does not have to
show prejudice in this circumstance.
CONCLUSION
RCW 46.20.308 requires that before an officer gives a breath test to a
person reasonably believed to be driving under the influence, an officer must
provide that driver with certain warnings required by that statute. 	Here, the State
cannot show that an officer gave all the required warnings to Robison.
42 Morales, 173 Wn.2d at 575: see also Whitman. 105 Wn.2d at 283.
43 Morales. 173 Wn.2d at 575.
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NO. 72260-3-1/16
Therefore, the superior court correctly decided that the breath tests given to
Robison were not admissible as evidence of his guilt. We affirm.
WE CONCUR:
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