      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             No. 72260-3-1


                     Petitioner,                 DIVISION ONE


      v.

                                                 PUBLISHED OPINION
DARREN J. ROBISON,
                                                                                CO

                     Respondent.                 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.
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                                        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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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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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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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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      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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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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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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      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)).
                                        -13-
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).
                                        -14-
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.
                                       -15-
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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