State v. Robison: Implied Consent & Pot DUI

In State v. Robison the WA Court of Appeals Division I held that a BAC test requires suppression when the officer giving the breath to a driver suspected of marijuana DUI fails to provide that driver with Implied Consent warnings required by that statute.

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 DUI. 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, and that its purpose 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 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.

Ultimately, the WA Court of Appeals granted the State’s request for discretionary review of the superior court’s decision.

First, the Court of Appeals gave background on how police officers apply Washington’s Implied Consent Laws in DUI investigations. 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. 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. 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.

The court further explained that in 2012, Washington voters enacted Initiative 502, which legalized some uses of marijuana. This initiative also amended Washington’s Implied Consent laws by adding a warning about marijuana test results.

In this case, Trooper Hyatt warned Robison about the consequences of test results showing an alcohol concentration in his breath. However, Trooper Hyatt failed to warn Robison of the consequences of test results showing a prohibited level of THC concentration in his blood. Consequently, the Court of Appeals reasoned that the BAC test was properly suppressed because of this omission.

Additionally, the Court rejected the State’s argument that (1) an arresting officer has discretion to edit implied consent warnings as he deems appropriate to the facts of a case, and (2) the officer’s incomplete warning was harmless. Here, 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.”

The Court of Appeals concluded that 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.”

With that, the Court of Appeals affirmed the superior court’s decision to suppress Robison’s BAC test.

My opinion? Good decision.  DUI investigations involving Implied Consent Warnings must keep up with today’s legislative amendments. The law is the law.