Breath-Test Warnings Inadequate, Lawyers Say But Prosecutors Tell Supreme Court Suspected Drunken Drivers Protected

Suspected drunken drivers get “grossly incomplete” warnings before they’re expected to submit to a breath test, defense lawyers told the state Supreme Court on Tuesday.

But prosecutors, backed by the state, said the standard warning now given by troopers and local police during drunken-driving stops is adequate to protect the driver’s rights and should be upheld.

If the court demands more extensive implied-consent warnings, it could throw into question some of the estimated 40,000 drunken-driving cases that work their way through the courts each year, said Thurston County Deputy Prosecutor Jack Jones.

Last year, the Legislature passed a tougher drunken-driving law, including new penalties for refusing to take the breath test and new consequences for taking the test and failing it.

The standard warning that state troopers and police give motorists before asking them to submit to the breath test talks about the penalties for not taking it. It does not detail some of the administrative and criminal consequences that could occur if the person does take the test.

The warning is accurate as far as it goes but is incomplete and misleading because it doesn’t tell the full story of what can happen to a motorist who takes the test, said lawyers for eight defendants. Those possible consequences include license revocation.

“The basics of a warning shouldn’t mislead the person, and we do that by only telling part of the story,” attorney John Sinclair said.

Attorney Ray Munger said people can’t make an intelligent decision if they don’t have adequate information.

Jones said Washington’s implied-consent law, passed by the voters as an initiative in 1968, says that motorists are assumed to give their permission for testing when they apply for a driver’s license and use state highways. The only question is whether they will opt to refuse, and that’s the issue that needs to be covered in the standard warning, he said.

If the current warning isn’t good enough, what among the “litany of possible consequences” should the police describe to every drunken driver they pull over? he asked rhetorically.

Several justices seemed to side with Jones.”How far does the law enforcement officer have to go in substituting for the defense counsel?” asked Justice Phil Talmadge.

“How much detail is required?” asked Justice Rosselle Pekelis.

Defense lawyers didn’t agree on an answer but said the court shouldn’t be satisfied with incomplete and potentially misleading warnings.