Friday, April 08, 2011

DUI Appeal - Washington Says Implied Consent is Criminal Punishment

In State of Washington v. Yallup, --- P.3d ----, 2011 WL 839682 (Wash.App. Div. 3), a tribal Indian was stopped inside his reservation, on a state highway, and arrested for DUI and driving while suspended. Under the implied consent laws, his blood was also drawn. On appeal, the defendant challenged the jurisdiction of the state to charge him. Indian sovereignty prevents a State from imposing laws inside an Indian reservation that are merely regulatory or non-criminal. Here, if the court found that the implied consent laws were civil in nature, the blood result would be inadmissible. Using a result-driven analysis, the court held that implied consent laws are primarily criminal in nature:

The implied consent statute, RCW 46.20.308, was adopted to “control or reduce the drunk-driver hazard to highway safety.” State v. Moore, 79 Wash.2d 51, 53, 483 P.2d 630 (1971). It operates by recognizing that drivers have consented to alcohol testing by the operation of a motor vehicle within the state. RCW 46.20.308(1). Consent can be withdrawn in some circumstances, but the license to drive will be suspended when consent is withdrawn. RCW 46.20.308(2)(a). In the event that consent is withdrawn, evidence of the refusal to take the test “may be used in a criminal trial.” RCW 46.20.308(2)(b). The statute was upheld in Moore against various constitutional challenges, with the court recognizing the statute “having as its purpose the reduction of traffic carnage occasioned by the inebriated driver.” 79 Wash.2d at 58, 483 P.2d 630.
The clear focus of the implied consent statute is gathering evidence for prosecuting criminal cases of suspected impaired driving. Statutes that authorize evidence collection in support of prosecuting criminal cases are properly classified as criminal in nature. To the extent that the difference between criminal and civil jurisdiction even matters under RCW 37.12.010(8), we have no trouble categorizing the implied consent statute as criminal.
NOTE: This approach leaves the prosecution open to attacks under the double jeopardy clause - if a defendant receives an implied consent suspension, then any subsequent criminal prosecution would place the driver in criminal jeopardy twice.

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