                                                                                FiLED
                                                                        COURT OFAPPEALS DIV I
                                                                        ,STATE OF WASHINGTON

                                                                         201011A1 14 MI 8:58




      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

MORIAH SARGENT,
                                                       No. 75775-0-1
                       Petitioner,
                                                       DIVISION ONE
       V.

STATE OF WASHINGTON,
DEPARTMENT OF LICENSING,                               UNPUBLISHED OPINION

                       Respondent.                     FILED: May 14, 2018

       SPEARMAN, J. — RCW 46.61.504 makes it a crime to be in actual physical

control of a motor vehicle while under the influence of intoxicating liquor or any

drugs (Physical Control). Subsection (2) of the statute provides an affirmative

defense that applies to the crime and also "to any action pursuant to RCW

46.20.308 to suspend, revoke, or deny the privilege to drive if, prior to being

pursued by a law enforcement officer, the person has moved the vehicle safely

off the roadway." In this case, a Washington State Patrol trooper arrested Moriah

Sargent for violation of RCW 46.61.502, driving while under the influence of

intoxicating liquor or any drugs or both (DUI). She refused a breath test. At a

hearing to revoke her driver's license,1 the hearing officer denied her request to



        1 Under RCW 46.20.308, the Department of Licensing (DOL) has the authority to revoke
a person's right to drive if a law enforcement officer arrests the person having reasonable
grounds to believe the person had been driving or was in actual physical control of a motor
vehicle while under the influence of intoxicating liquor or any drugs or both and the arrested
person refuses to submit to a breath test.
No. 75775-0-1/2

assert the "safely off the road" affirmative defense because she was arrested for

DUI and not Physical Control. He revoked her driver's license. On appeal,

Sargent argues that the hearing officer erred because RCW 46.61.504(2) states

that the defense applies "to any action pursuant to RCW 46.20.308." She

contends that "any action" includes any action to revoke her license whether

based on an arrest for DUI or Physical Control. The Department argues that "any

action" is limited to an action resulting from an arrest for actual physical control. It

points out that the defense is only expressly set out in the statute making actual

physical control a crime and that it does not appear in the DUI statute.

       Because of the particular facts of this case we need not decide whether

the affirmative defense would apply to a person for whom there was only

probable cause to arrest for DUI. Here, it is undisputed that probable cause

existed to arrest Sargent for both DUI and actual physical control. The trooper

could have arrested her for either crime but chose to arrest her for DUI. On these

facts, we conclude that Sargent's revocation proceeding fell within the meaning

of "any action pursuant to RCW 46.20.308" and that the affirmative defense was

available to her. In addition, since Sargent's request to present the affirmative

defense was denied, we will not speculate on whether the evidence would have

been sufficient to sustain the defense or what other evidence may have been

presented in support of the defense. We reverse and remand for further

proceedings consistent with this opinion.




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No. 75775-0-1/3

                                      FACTS

       In the early morning hours of January 23, 2016, a Washington State Patrol

trooper saw a car stopped on the shoulder of Interstate 90. The trooper pulled

over to see if anyone needed assistance. There, Moriah Sargent was standing

beside the vehicle with keys in her hand talking on a cell phone. The front right

tire was flat and damaged, leading the officer to believe that Sargent drove a long

distance with a flat tire. A tire jack was on the passenger seat and a tire wrench

was attached to a lug nut on the tire rim.

       Sargent admitted that she hit a curb, causing the flat tire. She smelled of

alcohol and had watery, bloodshot eyes. Her speech was slurred and she was

unsteady on her feet. She said she drank one beer. Sargent first agreed to

perform field sobriety tests, but then changed her mind and refused. She was

arrested on suspicion of driving under the influence and refused to perform any

breath tests.

       Based on Sargent's breath test refusal, the Department of Licensing

(Department) notified her that it intended to revoke her driving privilege for one

year under the implied consent statute, RCW 46.20.308(a)(i). Sargent requested

an administrative hearing to challenge the decision. At the hearing, she argued

that she had an affirmative defense to the license suspension because she was

parked safely off the roadway. The hearing officer rejected the defense finding

that it was legally unavailable to Sargent because of her arrest for DUI and not

Physical Control. He also found that although there was "likely" probable cause

to arrest for Physical Control, the affirmative defense would have been denied


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No. 75775-0-1/4

because the evidence did not support that Sargent safely moved her vehicle off

the roadway. Department of Licensing Implied Consent, Findings of Fact,

Conclusions of Law & Final Order at 4. The hearing officer sustained the license

revocation. The superior court affirmed the revocation and this court granted

discretionary review.

                                   DISCUSSION

       Sargent argues that the trial court erred by rejecting her defense that she

safely moved her car off the roadway. She contends that this affirmative defense

is available to any administrative action to revoke the privilege to drive under

RCW 46.61.504, which criminalizes physical control of a vehicle while under the

influence. The Department argues that the safely off the road defense is

available only to those arrested for Physical Control, so Sargent could not avail

herself of the defense because she was arrested for DUI.

       We review an administrative license revocation from the same position as

the superior court. Clement v. Dep't of Licensing, 109 Wn. App. 371, 374, 35

P.3d 1171(2001)(citing Walk v. Dep't of Licensing, 95 Wn. App. 653, 656, 976

P.2d 185 (1999)). Our review is limited to determining whether the Department

has committed any errors of law and whether the findings of fact are supported

by substantial evidence in the record. RCW 46.20.308(8).

       The meaning of a statute is a question of law that we review de novo.

Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9,43 P.3d 4(2002).

When possible, we derive the legislative intent of a statute solely from the plain

language enacted by the legislature, considering the text of the provision in


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No. 75775-0-1/5

question, the context of the statute in which the provision is found, related

provisions, and the statutory scheme as a whole. State v. Evans, 177 Wn.2d 186,

192, 298 P.3d 724(2013)(citing State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d

354 (2010)). If more than one interpretation of the plain language is reasonable,

then the statute is ambiguous and we must construe it. Id. We may then rely on

rules of statutory construction, legislative history, and relevant case law to

discern legislative intent. Ervin, 169 Wn.2d at 820.

       The Department must suspend the license of a person arrested for DUI or

Physical Control who refuses to submit to a breath test. RCW 46.20.308(5). A

driver may request an administrative hearing to challenge the revocation. RCW

46.20.308(7). It was at this hearing that Sargent asserted the affirmative defense

that she was safely off the road. The safely off the road defense is codified in the

Physical Control statute:

           The fact that a person charged with a violation of this section
       is or has been entitled to use a drug under the laws of this state
       does not constitute a defense against any charge of violating
       this section. No person may be convicted under this section
       and it is an affirmative defense to any action pursuant to
       RCW 46.20.308 to suspend, revoke, or deny the privilege to
       drive if, prior to being pursued by a law enforcement
       officer, the person has moved the vehicle safely off the
       roadway.

RCW 46.61.504(2)(emphasis added). While this statute has long allowed the

safely off the road defense in Physical Control criminal proceedings, it was only

in 2015 that the legislature amended it to permit the defense for administrative

license revocation proceedings. Prior to the amendment, it was well established

that the safely off the road defense did not apply to DUI criminal proceedings.


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No. 75775-0-1/6

State v. Votava, 149 Wn.2d 178, 186,66 P.3d 1050 (2003); State v. Daily, 164

Wn. App. 883, 889, 265 P.3d 945 (2011).

       Sargent argues that the plain language of the amended Physical Control

statute allows the safely off the road defense for all administrative license

revocations under the implied consent statute, including revocations based on a

DUI arrest like hers. The Department contends that, despite the statute's

inclusive language, the text of the provision, as well as the statutory scheme as a

whole, demonstrate an intent to limit application of the defense to the Physical

Control statute. Thus, it argues "[Necause Sargent was arrested for DUI, she
                                                                                 If
was not entitled to assert the safely off the roadway affirmative defense...

Brief of Resp't at 7.

       Neither argument is persuasive however, because both rest on the

premise that the arresting officer's decision to arrest for one crime or the other

controls the availability of the defense. This is incorrect. The hearing officer is not

bound by the arresting officer's decision to arrest for one offense and not the

other. The issue before the hearing officer is whether there were reasonable

grounds to arrest for either offense. This is an issue of law that is properly

decided by a judicial officer, not by law enforcement. The existence of probable

cause is determined based on an objective view of the known facts, and is not

dependent upon the officer's subjective belief or the officer's ability to correctly

articulate his or her suspicion in reference to a particular crime. State v. Mitchell,

80 Wn. App. 143, 147, 906 P.2d 1013(1995). Thus, regardless of the officer's

stated choice to arrest for DUI, the hearing officer must decide as a matter of law


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No. 75775-0-1/7

whether the facts are sufficient to support probable cause for DUI or Physical

Control or, as in this case, both.

       The parties dispute, whether the defense is unavailable where, as here,

there are reasonable grounds to arrest for DUI. But there is no dispute that the

defense is available where there are reasonable grounds to arrest for Physical

Control. Here, the trooper chose to arrest Sargent for DUI and the hearing officer

correctly determined there was probable cause to do so. But, the hearing officer

also found there was probable cause to arrest her for Physical Control. In light of

this undisputed finding, under the statute, the affirmative defense was clearly

available to Sargent. Even if the Department is correct in its reading of the

statute, we see no reason why the finding of probable cause as to DUI would

make Sargent ineligible to assert the defense when there was also probable

cause to arrest her for Physical Control. This is particularly so in view of the

statute's broad, inclusive language that it applies to "any action pursuant to RCW

46.20.308... ." RCW 46.61.504(2).

       The hearing officer also found that even if the affirmative defense were

available to Sargent, it would have been denied. But because the defense was

unavailable to Sargent at the hearing, we decline to speculate on whether the

evidence was sufficient or on what other evidence she may have presented had

the defense been allowed.




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No. 75775-0-1/8

      Reversed and remanded.

                                        ......_.
WE CONCUR:
                                   e,N. J




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