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Th s opinion was filed for record 

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&«X~ SUSAN L. CARLSON 

SUPREME COURT CLERK 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, ) 

) 

Petitioner, ) No. 92930-1 

) 

v. ) 

) 

JUDITH E. MURRAY, ) 

) 

Respondent. ) 

) 

) 

STATE OF WASHINGTON, ) 

) 

Petitioner, ) No. 92944-1 

) 

v. ) EnBanc 

) 

DARREN J. ROBISON, ) 

) 

Respondent. ) Filed ····-- .d 

) 

) 

GONZALEZ, J.- Washington State citizens decriminalized the recreational 

use of cannabis by initiative. The main psychoactive compound in cannabis is 
State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

tetrahydrocannabinol (THC). The initiative established a legal limit for THC 

concentration in the blood while driving and amended the implied consent statute 

to direct officers to warn drivers of the legal consequences of a breath test that 

revealed that concentration. Unfortunately, no breath test available at the time 

measured THC concentrations in the blood. Our legislature has since amended the 

implied consent statute so it no longer requires officers to give a warning that 

suggests the current breath test will measure something it cannot. Before that 

amendment, Judith Murray and Darren Robison were given implied consent 

warnings that conformed to the ability ofthe breath test but not to the specific 

language ofthe statute. We must decide whether the breath test results should be 

suppressed because the THC warnings were not given. We find that for the breath 

tests given, the warnings did not omit any relevant part ofthe statute, accurately 

expressed the relevant parts ofthe statute, and were not misleading. Accordingly, 

the warnings substantially complied with the implied consent statute and the test 

results were properly admitted. We reverse the Court of Appeals and reinstate 

Murray's and Robison's convictions. 

FACTS 

Robison. Late one night, a state trooper observed Robison speeding through 

a restaurant parking lot toward a road. The trooper had to hit his brakes to avoid a 

collision as Robison exited the parking lot. The trooper decided a traffic stop was 

2 
State v. Murray and Robison, No. 92930-1 canso!. with No. 92944-1 

in order. The trooper could smell both alcohol and cannabis coming from 

Robison's car. Robison performed poorly on field sobriety tests and agreed to take 

a roadside breath test. Based on the results, the officer arrested Robison for 

suspected driving under the influence (DUI) and took him to a police station. 

At the station, the trooper read Robison an implied consent warning from a 

standard form's that did not mention the new statutory language concerning THC. 

The form warning did warn Robison that he was subject to having his driver's 

license suspended, revoked, or denied if the test revealed he was under the 

influence of alcohol. The written implied consent form Robison signed said, in 

relevant part: 

FURTHER, YOU ARE NOW BEING ASKED TO SUBMIT TO A TEST 

OF YOUR BREATH WHICH CONSISTS OF TWO SEPARATE 

SAMPLES OF YOUR BREATH, TAKEN INDEPENDENTLY, TO 

DETERMINE ALCOHOL CONCENTRATION. 

1. YOU ARE NOW ADVISED THAT YOU HAVE THE RIGHT TO 

REFUSE THIS BREATH TEST; AND THAT IF YOU REFUSE: 

(A) YOUR DRIVER'S LICENSE, PERMIT, OR PRIVILEGE TO 

DRIVE WILL BE REVOKED OR DENIED BY THE 

DEPARTMENT OF LICENSING FOR AT LEAST ONE YEAR; 

AND 

(B) YOUR REFUSAL TO SUBMIT TO THIS TEST MAY BE 

USED IN A CRIMINAL TRIAL. 

2. YOU ARE FURTHER ADVISED THAT IF YOU SUBMIT TO THIS 

BREATH TEST, AND THE TEST IS ADMINISTERED, YOUR 

DRIVER'S LICENSE, PERMIT, OR PRIVILEGE TO DRIVE WILL BE 

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State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

SUSPENDED, REVOKED, OR DENIED BY THE DEPARTMENT OF 

LICENSING FOR AT LEAST NINETY DAYS IF YOU ARE: 

(A) AGE TWENTY-ONE OR OVER AND THE TEST INDICATES 

THE ALCOHOL CONCENTRATION OF YOUR BREATH IS 

0.08 OR MORE, OR YOU ARE IN VIOLATION OF RCW 

46.61.502, DRIVING UNDER THE INFLUENCE, OR RCW 

46.61.504, PHYSICAL CONTROL OF A VEHICLE UNDER 

THE INFLUENCE. 

Robison Clerk's Papers at 109. 

Robison moved to suppress the results of the breath test, arguing that the 

implied consent warning was inadequate because it did not mirror the statutory 

language regarding the consequences of a finding ofTHC in his blood. The 

district court commissioner concluded that the warnings "accurately informed the 

defendant that the result of a breath test would reveal the alcohol concentration of 

his breath" and that "[i]t would be misleading to advise or imply to the defendant 

that the breath test could obtain a THC reading." Id. at 23-24. Robison was found 

guilty. 

Robison appealed to the superior court, which reversed, concluding the 

officer had no discretion to leave out a portion of the implied consent warning. 

The Court of Appeals affirmed. State v. Robison, 192 Wn. App. 658,670-71,369 

P.3d 188 (2016). We granted review. 

Murray. Murray was pulled over while driving on Interstate 5 by a state 

trooper after her car crossed the fog line several times. Murray's eyes were 

4 
State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

bloodshot and watery, her speech was slurred, her car smelled of intoxicants, and 

she could not safely complete the field sobriety tests. She told the officer she had 

had a few drinks and may have told him that she had taken a Xanax1 earlier. She 

also told the trooper that she had smoked cannabis earlier in the day for pain. She 

initially declined a breath test. Believing she was impaired by alcohol and possibly 

by the Xanax, the officer arrested Murray for suspected DUI. During the inventory 

search, cannabis was found in her car. 

At the Marysville Police Department, the trooper read Murray the implied 

consent warnings for a breath test from a prepared form. The copy of the form in 

the record appears to be identical to the one used with Robison. According to the 

State's superior court brief, the trooper did not read the portions of the written 

warning regarding people under age, people with commercial drivers' licenses, or 

people driving commercial vehicles because these warnings were not applicable to 

Murray. Like in Robison's case, the form (and thus the warning) did not include 

the then-new statutory language regarding THC and the breath test given to 

Murray could not test for THC. The breath test showed that the alcohol content in 

Murray's blood was higher than is permitted to drive. Murray was charged with 

DUI. The same district court commissioner who denied Robison's motion to 

1 "Xanax" is a brand name of a sedative used to treat anxiety and panic disorder. See Xanax, 

DRUGS.COM (Sept. 28, 2016 10:22 AM), https://www.drugs.com/xanax.htm1 

[https:/ /perma.cc/S4 7 5-M7VT]. 

5 
State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

suppress the breath test also denied Murray's motion on the grounds that the 

inoperative THC warning would not have helped her make a knowing, intelligent, 

and voluntary decision on whether to take the test. Specifically, the commissioner 

analogized the THC warning to specific statutory warnings concerning underaged 

drinking and commercial drivers' licenses that are routinely omitted when 

irrelevant: 

An arresting officer can easily and specifically determine whether a person 

is under 21 years of age or a commercial driver; that officer can then omit 

those warnings if they do not apply to a suspect. An arresting officer can 

just as easily and specifically determine that a defendant being ask [sic] to 

submit to a breath test is not being asked to take a test that can possibly 

obtain a THC result; that officer can then, likewise, omit warnings that 

clearly do not apply to a person being asked to take only a breath test. 

Murray Clerk's Papers at 31. Accordingly, the commissioner concluded that 

"[r]edacting warnings that are irrelevant to the decision before the defendant is 

permissible." !d. 

Murray appealed the commissioner's ruling to the superior court, which 

found the breath test should have been suppressed and reversed. The Court of 

Appeals affirmed, State v. Murray, noted at 192 Wn. App. 1040 (2016), and we 

granted review and consolidated these two cases. State v. Murray, 185 Wn.2d 

1033,377 P.3d 735 (2016). 

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State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

ANALYSIS 

The validity of an implied consent warning is an issue of law reviewed de 

novo. State v. Morales, 173 Wn.2d 560, 567, 269 P.3d 263 (2012) (citing City of 

Bellevue v. Moffitt, 87 Wn. App. 144, 146, 940 P.2d 695 (1997)). A driver's 

implied consent to a breath test for alcohol, and the arresting officer's duty to warn 

of the potential consequences of the test, have been part of our statutory system for 

decades. See LAWS OF 1969, ch. I §§ 1, 3 (Initiative 242; codified in part at RCW 

46.20.308). We have previously observed that "[t]he choice to submit to or refuse 

the test is not a constitutional right, but rather a matter of legislative grace." State 

v. Bostrom, 127 Wn.2d 580, 590, 902 P.2d 157 (1995) (citing State v. Zwicker, 105 

Wn.2d 228, 242, 713 P.2d 1101 (1986)). Both the legal consequences of driving 

while intoxicated and the details and exactitude of the warning required by the 

legislature have changed during that time. I d. at 583-85 (surveying history). 

Initiative 502, which decriminalized the recreational use of cannabis, also 

amended the implied consent statute. Former RCW 46.20.308(2) (2013); LAWS OF 

2013, ch. 3, § 31 (codifYing Initiative 502). In relevant part, the amended implied 

consent statute said: 

The officer shall warn the driver, in substantially the following language, 

that: 

(c) If the driver submits to the test and the test is administered, the 

driver's license, permit, or privilege to drive will be suspended, revoked, or 

denied for at least ninety days if: 

7 
State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

(i) The driver is age twenty-one or over and the test indicates either 

that the alcohol concentration of the driver's breath or blood is 0.08 or more 

or that the THC concentration of the driver's blood is 5.00 or more. 

LAWS OF 2013, ch. 3, § 31(2) (emphasis added) (formatting omitted). 

In 2004, the legislature amended the implied consent statute to direct 

officers to give warnings "in substantially the following language." LAws OF 2004, 

ch. 68, § 2 (codified at RCW 46.20.308(2)). We have not yet had occasion to 

consider this amendment. Historically, our analysis of the validity ofthe implied 

consent warning given to a driver suspected ofDUI has been guided by two 

considerations. First, we have considered whether the warning given "strict[ly] 

adhere[ d) to the plain language of the implied consent statute." Bostrom, 127 

Wn.2d at 587 (citing Connolly v. Dep't of Motor Vehicles, 79 Wn.2d 500, 487 P.2d 

1050 (1971)). In Connolly, for example, we reversed the Department of 

Licensing's revocation of a driver's license for refusal to take a breath test because 

the implied consent warning given did not inform the driver that he had the 

statutory right to independent testing. 79 Wn.2d at 501, 504. Second, we have 

considered the accused's "right under the implied consent statute to be afforded the 

opportunity to make a knowing and intelligent decision whether to submit to an 

evidentiary breath test." State v. Whitman County Dist. Court, 105 Wn.2d 278, 

282, 714 P.2d 1183 (1986) (collecting cases). 

8 
State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

Murray and Robison ask us to hold that since some of the statutory language 

was omitted, the tests must be suppressed. They rely heavily on our opinion in 

Morales, where we recently found a breath test was improperly admitted. 173 

Wn.2d at 578. But substantial compliance with the statutory warning was not 

before us in Morales. Instead, relevantly, we were considering whether the State 

had met its burden of establishing that the warning was actually read to the 

defendant. !d. at 574-75. Because there was "'[s]omewhat of a language barrier'" 

between the arresting officer and the defendant, the officer "enlisted the help of an 

apparently Spanish-speaking hospital employee" to read the warning. Id. at 564 

(alteration in original). The officer did not spealc Spanish, and the employee was 

not brought in to lay the foundation that the warning was properly given. We held 

that the officer's testimony alone did not lay an adequate evidentiary foundation 

and so the tests were erroneously admitted. Id. at 576. We had no occasion to 

consider whether any variance in the statutory language rendered the test 

inadmissible. 

We find no case, and none have been called to our attention, that require 

officers to read an irrelevant statutory warning to a driver suspected ofDUI. 

Instead, as acknowledged by counsel at oral argument, it has long been the 

reasonable practice of arresting officers to omit warnings related to underage 

drinking and commercial drivers' licenses when advising those over 21 or driving 

9 
State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

on a noncommercial license. Mmny and Robison ask us to treat the omission of 

the statutory THC warning as reversible error. But they make no effort to show 

that this type of statutory omission belongs in that category, and it is hard to 

imagine the legislature intends us to treat it so. The fundamental purpose of 

statutory interpretation is to ascertain and carry out the intent of the legislature 

considering the statute as a whole. Dep 't of Ecology v. Campbell & Gwinn, LLC, 

146 Wn.2d 1, 9-10,43 P.3d 4 (2002). Read as a whole, the legislature has made its 

intent clear: the arresting officer does not have to perfectly incant the words ofthe 

implied consent statute; he or she must simply give the accused a relevant warning 

in substantially the statutory language. See RCW 46.20.308(2). Even before the 

2004 amendment, the officer was not required to give irrelevant portions ofthe 

statutory implied consent warning. 

The substantial compliance doctrine helps illuminate what the statute 

commands. "'Substantial compliance has been defined as actual compliance in 

respect to the substance essential to every reasonable objective of [the] statute."' 

Black v. Dep 't of Labor &Indus., 131 Wn.2d 547, 552, 933 P.2d 1025 (1997) 

(alteration in original) (quoting City of Seattle v. Pub. Emp 't Relations Comm 'n, 

116 Wn.2d 923, 928, 809 P.2d 1377 (1991)). We have long held that the implied 

consent statute as a whole has three objectives: 

(1) to discourage individuals from driving an automobile while under the 

influence of intoxicants, (2) to remove the driving privileges from those 

10 
State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

individuals disposed to driving while inebriated, and (3) to provide an 

efficient means of gathering reliable evidence of intoxication or 

nonintoxication. 

Nowell v. Dep't of Motor Vehicles, 83Wn.2d 121, 124, 516 P.2d 205 (1973). Not 

giving an irrelevant and potentially misleading THC warning does not further those 

objectives. The implied consent warning itself is there to give the accused "the 

opportunity to make a knowing and intelligent decision whether to submit to an 

evidentiary breath test." Whitman County, 105 Wn.2d at 282. Omitting the THC 

warning is consistent with this objective too; being told of the consequences of a 

result the test does not give does not help a driver make an informed choice.2 

Taken together, we conclude that an implied consent warning substantially 

complies with the statute when it (1) does not omit any relevant portion of the 

statute, (2) accurately expresses the relevant portions of the statute, and (3) is not 

otherwise misleading. We find the warnings given to Murray and Robison meet 

this standard. As the district court commissioner noted, the breath test could not 

ascertain THC levels in the blood. Therefore, the troopers did not omit any 

relevant portion of the statute by not mentioning THC any more than a trooper 

omits a relevant portion of the statute by failing to warn a 50-year-old of the 

2 Of course, we would be in a different situation if in fact the test did measure THC concentration 

in the blood. 

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State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

consequences of underage drinking. The warnings given accurately expressed the 

relevant portions of the statute and were not otherwise misleading. 

CONCLUSION 

We conclude that Murray and Robison both received adequate warnings. 

We reverse the Court of Appeals and reinstate the district court's decisions finding 

Murray and Robison guilty ofDUI. 

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State v. Murray and Robison, No. 92930-1 consol. with No. 92944-1 

WE CONCUR: 

13 

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