Opinion
Because these two cases involve an identical issue, we consolidate them for the purpose of issuing a single opinion.
Filed: December 31, 2001 UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 99-2-10070-1 Judgment or order under review Date filed: 10/28/1999
Counsel for Appellant(s), Barbara A. Bowden, Bowden Bowden, 4301 S Pine St Ste 625, Tacoma, WA 98409.
David Ruzumna, Law Office of David Ruzumna, 9725 Third Ave N.E. Ste 600, Seattle, WA 98115.
John W. Scholbe, 815 S Weller St #202, Seattle, WA 98104.
Counsel for Respondent(s), Gwendolyn Howard, Asst Attorney General Licensing Division, 900 4th Ave Ste 2000, Seattle, WA 98164-1001.
David I. Matlick, Fl 3, 1019 Pacific Ave, Tacoma, WA 98402.
We granted discretionary review in these administrative license-revocation proceedings in anticipation of addressing a question of first impression in Washington, i.e., whether RCW 46.20.308 requires a translated reading of the implied consent warnings to suspected drunken drivers who are not fluent in English. But here, both Hak Woo Kim and Sergey Chizh were given the warnings in their respective native tongues, through a telephonic language line service. Thus, the question we expected to review is not squarely presented, and we decline to address it in dicta. Instead, we will assume without holding, for purposes of this opinion only, that there is such a right, and address the petitioners' respective challenges in that light.
Courts in other jurisdictions having similar implied consent statutes have ruled that no such requirement exists. See People v. Wegielnik, 152 Ill.2d 418, 605 N.E.2d 487 (Ill. 1992); Yokoyama v. Commissioner of Public Safety, 356 N.W.2d 830 (Minn.Ct.App. 1984); Martinez v. Peterson, 212 Neb. 168, 322 N.W.2d 386 (1982); State v. Hurbean, 23 Ohio App.2d 119, 261 N.E.2d 290 (Ct.App. 1970).
Because no direct evidence was presented by the Department of Licensing about the qualifications of the translators, the nature of the language line service, or what the translators specifically communicated to the petitioners (as opposed to what the arresting officers communicated to be translated), both petitioners assert a lack of sufficient evidence to establish that they were properly advised of their implied consent warnings. But in so arguing, they overlook the fact that the arresting officers' sworn reports are prima facie evidence, as a matter of law, of compliance with the statute, and that the officers' sworn reports contain evidence from which a rational trier of fact could infer that the translators accurately translated the implied consent warnings. When the Department makes such a showing, as it did here, the burden shifts to the licensee to establish lack of compliance with the statute. Neither petitioner met his burden. Accordingly, we affirm.
I Kim
On January 7, 2000, a trooper of the Washington State Patrol saw Hak Woo Kim driving without a front left tire, large sparks flying as the tireless metal wheel scraped the pavement. The trooper pulled Kim over. Kim exhibited the classic signs of serious intoxication. He spoke to the trooper in a foreign language, which the trooper subsequently determined was Korean. Kim was arrested for driving while under the influence of intoxicants and transported to the Kent Regional Justice Center. There, the trooper contacted a telephonic language line service, and was put in contact with an English/Korean interpreter identified in the trooper's sworn report as Operator No. 5077. Through the interpreter, the trooper asked Kim for permission to record the subsequent conversation and Kim agreed. The trooper then read the implied consent warnings in English, and the interpreter translated them for Kim. Kim stated that he understood the warnings, and signed the implied consent form. He said that he would take the breath test. He was instructed, through the interpreter, how to blow into the machine.
After a required observation period, Kim attempted the test. He puffed up his cheeks and appeared to blow hard into the machine, but the machine produced no tone; thus there was an incomplete sample. The trooper then put Kim back in touch with the interpreter, through whom he was told that he could not "beat the machine." Kim then said he did not want to take the test. A refusal was entered.
This information was transmitted to the Department of Licensing, and Kim's driver's license was revoked for one year. He requested an administrative hearing. At the hearing, the Department relied exclusively on the officer's report. Kim did not testify. By order dated March 8, 2000, the hearing officer sustained the Department of Licensing's action revoking Kim's license for one year. The Superior Court affirmed the Department's order. We granted discretionary review.
Chizh
On January 3, 1999, Sergey Chizh, who is Russian, was stopped by a Kent police officer following a citizen's report that Chizh appeared to be driving while intoxicated. Chizh admitted to the officer that he had consumed a couple of beers within the last hour. He agreed to perform roadside sobriety tests, and followed the officer's instructions with respect to the heel-to-toe and balance tests. He told the officer that he had had surgery on both his knees but that he had no physical problems.
These conversations took place in English. Chizh, who spoke with an accent, told the officer that he had completed 12th grade in Russia. The officer arrested Chizh for driving while under the influence of intoxicants, based on the results of the roadside tests and other classic indications that Chizh had consumed a considerable number of alcoholic beverages. The officer read Chizh his Miranda rights. At that point, Chizh indicated he did not understand his rights, and requested a translator.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).
The officer transported Chizh to the Kent jail and contacted a Russian interpreter through a telephonic language line service. Through the interpreter, the officer advised Chizh of his Miranda rights and the implied consent warnings. Chizh acknowledged that he understood his rights. He agreed to take a breath test, and performed it in accord with the instructions he was given. The two readings were .133 and .128. This information was transmitted to the Department of Licensing, and Chizh's driver's license was revoked for two years. He requested an administrative hearing. At the hearing, the Department relied exclusively upon the officer's sworn report. Chizh's motion to suppress the report was denied. Chizh testified that he had been advised of his rights in Russian by way of the language line interpreter, but claimed that he was misinformed on two bases: first, that the interpreter neglected to tell him that he could obtain additional tests if he wished, and second, that the interpreter told him his license would be revoked for one year when it was actually to be revoked for two years whether or not he took the breath test, because he was already on probationary status when he was arrested. The hearing officer offered to grant a continuance if Chizh wanted to locate the Russian translator. But the arresting officer had not included the translator's operator number in his report, and although the record indicates that Chizh's translation session likely was recorded, it is undisputed that the Kent police had not been able to locate the tape.
The hearing officer found that, with assistance from a translator, Mr. Chizh was accurately advised of his implied consent rights, had an opportunity to make an intelligent and informed decision whether to submit to the test, had indicated that he understood both his Constitutional rights and implied consent warnings, and that the officer had taken all reasonable steps to ensure that Chizh had an opportunity to make an informed decision. By Order dated March 14, 1999, the Hearing Officer sustained the Department of Licensing's action revoking Mr. Chizh's license for two years. The Superior Court affirmed the action. We granted discretionary review.
II
The superior court reviews a final order of the Department of Licensing in the same manner as an appeal from a decision of a court of limited jurisdiction. RCW 46.20.308(9). RALJ 9.1 provides in pertinent part:
Further appellate review is not available as a matter of right, but only by discretionary review. Eide v. Department of Licensing, 101 Wn. App. 218, 3 P.3d 208 (2000).
(a) Errors of Law. The superior court shall review the decision of the court of limited jurisdiction to determine whether that court has committed any errors of law. (b) Factual Determinations. The superior court shall accept those factual determinations supported by substantial evidence in the record (1) which were expressly made by the court of limited jurisdiction, or (2) that may reasonably be inferred from the judgment of the court of limited jurisdiction.
This Court reviews an administrative decision from the same position as the superior court. Galvin v. Employment Sec. Dep't, 87 Wn. App. 634, 640, 942 P.2d 1040 (1997). An appellate court reviews questions of law, such as the sufficiency of implied consent warnings, de novo. State v. McCormack, 117 Wn.2d 141, 143, 812 P.2d 483 (1991); City of Bellevue v. Moffitt, 87 Wn. App. 144, 146, 940 P.2d 695 (1997). But the reviewing court shall accept the factual determinations of the administrative agency so long as they are supported by substantial evidence in the record. Walk v. Department of Licensing, 95 Wn. App. 653, 656, 976 P.2d 185 (1999) (citing RALJ 9.1(b)). Substantial evidence exists if the record contains enough evidence to persuade a fair-minded, rational person of the truth of the declared premise. World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 387, 816 P.2d 18 (1991). Credibility determinations in administrative hearings are for the trier of fact, and not the appellate court, and will not be reversed on appeal. Russell v. Department of Human Rights, 70 Wn. App. 408, 421, 854 P.2d 1087 (1993). The party challenging a finding of fact bears the burden of demonstrating that the finding is not supported by substantial evidence. Mairs v. Department of Licensing, 70 Wn. App. 541, 545, 854 P.2d 665 (1993).
III
The implied consent law was passed by initiative in 1968 and codified at RCW 46.20.308. Initiative Measure 242; Laws of 1969, ch. 1, sec. 1. The statute was enacted as a police power measure: (1) to discourage individuals from driving motor vehicles while under the influence of alcohol or drugs; (2) to remove the driving privileges of those individuals who are disposed to driving while intoxicated; and (3) to provide an efficient means of gathering reliable evidence of intoxication or non-intoxication. Medcalf v. Department of Licensing, 133 Wn.2d 290, 297, 944 P.2d 1014, 76 A.L.R.5th 765 (1997). The purpose of advising a suspected drunken driver of the implied consent warnings is to provide him or her the opportunity to make a knowing and intelligent decision as to whether to submit to a breath test. Town of Clyde Hill v. Rodriguez, 65 Wn. App. 778, 780, 831 P.2d 149 (1992).
The law provides that anyone arrested for driving under the influence of alcohol is deemed to have consented to a test of his or her breath to determine the alcohol content. RCW 46.20.308(1). The statute further provides for administrative action revoking the driver's licenses of persons who are arrested and subsequently refuse a test for alcohol, or submit to a test with a result of .08 or above for persons over age 21, or .02 or above for persons under age 21. RCW 46.20.308(6); (8). However, before conducting a test, an officer must inform the person: (1) of the right to refuse the test; (2) the right to have additional tests administered by a qualified person of his or her choosing; (3) that the privilege to drive will be revoked if he or she refuses to submit to the test; and (4) that refusal to take the test may be used in a criminal trial. RCW 46.20.308(2). Courts scrutinize the implied consent warnings not on a constitutional basis, but rather as rights granted as a matter of grace through the statutory process. Gonzales v. Department of Licensing, 112 Wn.2d 890, 896, 774 P.2d 1187 (1989). Washington courts review the warnings provided by arresting officers to ensure that all of the required warnings were provided and that they were not inaccurate or misleading. Id. at 896-98 (citing Connolly v. Department of Motor Vehicles, 79 Wn.2d 500, 487 P.2d 1050 (1971) (failure to inform driver of right to take additional tests); State v. Whitman Cy. Dist. Court, 105 Wn.2d 278, 287, 714 P.2d 1183 (1986) (warning that a refusal "shall," as opposed to "may," be used in a criminal trial). This does not mean, however, that an arresting officer must ensure that the driver does in fact make a knowing and intelligent decision regarding whether or not to refuse the test; it requires only that the driver have an opportunity to exercise informed judgment. Medcalf, 133 Wn.2d at 299. Such opportunity is provided when, prior to being asked to submit to a breath or blood test, the driver is told of the rights and consequences under the statute. The exact words of the implied consent statute are not required.
A warning, either in general language or in statutory terms, which neither misleads nor is inaccurate, and which permits the suspect to make inquiries for further details is adequate. Town of Clyde Hill, 65 Wn. App. at 784-85. Failure to give proper implied consent warnings generally results in suppression of the results of a breathalyzer test, or the invalidation of a driver's license revocation based on refusal to take a test State v. Bartles, 112 Wn.2d 882, 889, 774 P.2d 1183 (1989); Gonzales, 112 Wn.2d at 894.
The sworn report of an arresting officer is prima facie evidence of a valid arrest and compliance with the requirements of the statute. RCW 46.20.308(8). "A prima facie case, . . . is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side." State v. McAllaster, 31 Wn. App. 554, 557, 644 P.2d 677 (1981). Thus, once a prima facie case is established by the Department, the burden shifts to the opposing party to produce evidence that there was not compliance with a requirement of the statute. Lytle v. Department of Licensing, 94 Wn. App. 357, 362, 971 P.2d 969 (1999) ("[T]he 1995 amendments to RCW 46.20.308(8) now allow the sworn report and the complete police report to constitute prima facie evidence that the implied consent statute was complied with by the officer(s). The [Department's] burden is then met. The burden then shifted to Mr. Lytle to refute the prima facie evidence.").
In Mr. Kim's case, the trooper's sworn report was admitted into evidence, thereby establishing a prima facie case that Kim was provided the warnings required under RCW 46.20.308(2), in English. This evidence is sufficient, as a matter of law, to establish that Mr. Kim was provided his implied consent warnings, in English. Assuming without holding that he was also entitled to receive the warnings in Korean, the evidence contained in the sworn report is also sufficient, circumstantially, to establish that he received the warnings in that language. The trooper contacted the telephonic language service, requested a Korean translator, and read the warnings in English, which were then translated to Mr. Kim in a language that he clearly understood, in that Mr. Kim said, through the translator, that he understood what he was told. There is no indication in the record that he expressed any confusion or lack of understanding of the translated information. To the contrary, Mr. Kim said, through the translator, that he did understand. Cf. Strand v. Department of Motor Vehicles, 8 Wn. App. 877, 878, 509 P.2d 999 (1973) (to establish a confusion defense under RCW 46.20.308, driver must demonstrate that he or she objectively manifested confusion and was denied clarification). A rational trier of fact could reasonably infer that the translator accurately translated the implied consent warnings because it is clear that the instructions on how to blow into the machine were accurately translated so accurately, in fact, that Mr. Kim thought, initially, that he could beat the machine by only pretending to blow hard into the machine, instead of actually doing so. It can reasonably be inferred that because the translator accurately translated the instructions on how to blow into the machine, more likely than not the implied consent warnings were also properly translated. Thus, the hearing officer's findings are supported by substantial evidence.
The burden then shifted to Mr. Kim to establish that he was not provided with the required statutory warnings. However, Mr. Kim did not present any evidence in rebuttal. Thus, as a matter of law, Mr. Kim did not meet his burden.
In Mr. Chizh's case, the arresting officer's sworn report was also admitted into evidence, thus establishing a prima facie case that Mr. Chizh was provided the warnings required under RCW 46.20.308(2), in English. This evidence is sufficient, as a matter of law, to establish that Mr. Chizh was provided his implied consent warnings, in English. Assuming without holding that Mr. Chizh also had a statutory right to hear the implied consent warnings in Russian, he himself testified that he was informed of the warnings in Russian. It is also clear from the record that Mr. Chizh sufficiently understood English to converse with the arresting officer, to perform the roadside sobriety tests as instructed, and to tell the officer that he did not understand his Miranda rights and to request a translator. Thus he was not entirely dependent upon the translator for his understanding of the implied consent warnings. Unlike Mr. Kim, Mr. Chizh did provide rebuttal testimony. His credibility with respect to whether the translator misinformed him with respect to the content of the translated warnings was a question for the hearing officer, however, and not this appellate court. The trier of fact determines the weight to give testimony and may believe or disbelieve a witness. Segall v. Ben's Truck Parts, Inc., 5 Wn. App. 482, 483, 488 P.2d 790 (1971).
The hearing officer gave Mr. Chizh the opportunity to take additional time to attempt to locate the Russian translator if he wished. It is unfortunate that the tape recording of the translation session was, apparently, lost, but that is not a basis for overturning the hearing officer's findings and credibility determinations. It is clear from the record that the translator accurately told Mr. Chizh how to properly blow into the machine, for Mr. Chizh did so, twice, and readings were obtained both times. A rational trier of fact could reasonably infer that because the translator accurately translated the instructions on how to blow into the machine, so also did the translator accurately translate the implied consent warnings, notwithstanding Mr. Chizh's testimony to the contrary.
Mr. Chizh's attorney told the hearing officer that neither the arresting officer nor the prosecutor would provide her with additional information about the interpreter. However, her requests appear to have been informal, rather than by way of discovery requests. The hearing officer responded to the petitioner's desire for more information about the translator by affording additional time. If you believe you can get any information . . . about what the conversation covered between the interpreter and Mr. Chizh, then I can allow you some time to do that. For instance, is there a record of the conversation and it clearly indicated that the interpreter mis-advised Mr. Chizh or the implied consent warnings then that would be relevant in this hearing, however, Mr. Chizh is capable of telling us what he was told, and the officer has presented his version of what took place too at that point at this point I'll rely on that information. Report of Proceedings at 12-13.
In sum, the hearing officers' findings are supported by substantial evidence in both these cases, notwithstanding the lack of direct and specific evidence in the record concerning the content of the translated warnings. This is not to say that we condone the lack of specific evidence with respect to the nature of the language line service, such means as may be available for identifying and contacting translators for purposes of obtaining evidence from them, and such means as may be available for parties to secure tape recordings of translation sessions in any given case, for evidentiary purposes. We think it commendable that such a telephonic language service is available to law enforcement, whether or not it is legally necessary under the implied consent statute an issue that we leave for another day.
At such time in the future as the issue of the legal necessity for translation of the implied consent warnings may be squarely before an appellate court, however, a better record than is available in these cases would be desirable. Here, none of the counsel for the parties was able to answer the panel's questions with respect to the nature of the service, the procedures by which law enforcement officers utilize it, the means by which drivers whose licenses are in jeopardy may exercise discovery or even the official name of the service.
The Department of Licensing's revocation of each petitioner's driver's license is affirmed. The stays that were granted by this court on October 4, 2000 are lifted.
AGID and ELLINGTON, concur.