 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Town of Clyde Hill v. Rodriguez5/26/1992
!--REF-->81 Wash. 2d 111, 499 P.2d 1264 (1972). There, the court held that the term "qualified person" was adequate in the context of the implied consent warning, and that the warning need not include a listing of the types of persons qualified to administer tests. In so ruling, the court stated, "if the arrested person decides to exercise his right to have additional tests made, he may ask for the further information". 81 Wash. 2d at 116. We find that reasoning to be equally applicable here.
Rodriquez also argues that the warning is inadequate because Clyde Hill substituted the words "one or more" for the statutory word "additional". The flaw in this argument is that the two terms mean virtually the same thing. Neither term specifies the types of additional tests which are allowed, and substituting one for the other simply makes no substantive difference. The substitution can therefore impact no rights conferred by RCW 46.20.308.
Rodriguez nevertheless contends that case law has established that law enforcement is required to use the exact words of the statute, regardless of whether the modification in wording impacts the driver's understanding of the implied consent warning. We find no such requirement in the cases interpreting and applying the implied consent statute.
In State v. Whitman Cy. Dist. Court, 105 Wash. 2d 278, 285-86, 714 P.2d 1183 (1986), the Supreme Court held that a warning which stated that refusal to take the breath test "shall" be used against the defendant required suppression of the test because it was inaccurate. The statutory language is that the refusal " may be used in a criminal trial." (Italics ours.) RCW 46.20.308(2). The court concluded that use of "shall" in the warning conveyed a different, more coercive, meaning than the statutory term "may". 105 Wash. 2d at 285-86.
Rodriguez also relies on Spokane v. Holmberg, 50 Wash. App. 317, 745 P.2d 49 (1987), review denied sub nom. Box v. Grant Cy. Dist. Court, 110 Wash. 2d 1013 (1988), in which Division Three of this court ruled that suppression was required when the defendant was not advised that refusal to take the test could be used at trial. In the context of that holding, the court stated that "any derogation from the statutory warnings requires suppression of the test results." 50 Wash. App. at 323. Again, however, the "derogation" at issue in that case was not the substitution of one synonymous term for another. Rather, Holmberg involved a complete failure to give one of the four warnings specified by the statute. Clearly, the complete failure to inform a suspect that evidence may be used at trial violated his "right to fundamental fairness". Canaday, 90 Wash. 2d at 817.
Like Bartels, Whitman and Holmberg stand for the proposition that warnings which are inaccurate or misleading contravene the purpose of the implied consent warning and thus require suppression of the test results. These cases do not stand for the proposition that use of a linguistic equivalent of the statutory word requires suppression of the test results. Where no different meaning is implied or conveyed, the defendant is not misled. To hold otherwise would
exalt form over substance. The language used by Clyde Hill in this case is neither inaccurate nor misleading, and does not require suppression of the test results.
Finally, respondent and the dissent posit that the implied consent warning given at
Page 1 2 3 4 5 6 7 Washington DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|