Case Law Update (Division I on Informed Consent)

State v. Robison: In a case in which a defendant who smelled of both marijuana and alcohol was given implied consent warnings that omitted any penalty with regard to THC concentration, the Court found that the applicable statute required the marijuana warning, and the State could not prove that the omission was harmless beyond a reasonable doubt. The Court reasoned that Bostrom “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 driver the opportunity to exercise an intelligent judgment.” The Court further followed the Supreme Court’s reasoning in Whitman that the mandatory language of the implied consent statute meant that the officer had no discretion with regard to the wording he used to warn the accused. The Court further found that there was no evidence that Courts had ever ruled that an arresting officer has discretion to edit implied consent warnings as he deems appropriate to the facts of a case, and noted that the State’s arguments consistently failed to distinguish between omitted warnings required by statute and additional warnings not required by the express language of the implied consent statute. With regard to the State’s argument that Mr. Robison could not show prejudice from the improper warnings, the Court found that the State’s reliance on Bartels was inappropriate. The Court explained that the remand in this case to determine if any of the defendants in fact had the financial means to pay for additional testing was not to establish prejudice, but to prove that the warnings were harmless beyond a reasonable doubt.   The Court concluded, “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.

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