homeWelcome, sign in or click here to subscribe.login
     


 

 

Opinion


print  email to a friend  reprints add to mydjc  
Andrew Bergh
Andrew Bergh

December 11, 1997

Don't hold your breath

By ANDREW BERGH
Special to the Journal

Think about it. If you got caught drinking and driving, why in your right mind would you blow into a breathalyzer or some other fancy gizmo that measures exactly how much alcohol you have in your blood? Unless you're under the legal limit, you're essentially giving the cops all the ammo they need to obtain your conviction in court.

Right mind or otherwise, I'll give you one very good reason: Washington's implied consent law. Under that statute, anyone who drives on our streets and highways tacitly agrees to submit to a breath or blood test if he or she gets arrested for DWI.

Moreover, this law comes with teeth. That's because if you get arrested for drunk driving and then refuse to give a sample of your breath or blood, your license will be revoked by the Department of Licensing. Not for a day, week or month, but for one or more years.

But some people don't go down without a fight.

Take, for example, Medcalf v. Department of Licensing. In that case, a Kitsap County man claimed that although he wanted to take a breath test following his arrest for DWI, he was psychologically unable to comply because of a mental condition -- specifically, an obsessive-compulsive disorder. The issue facing our state Supreme Court was whether the driver could assert this mental disorder as a defense at his license revocation hearing.

The Medcalf case involves a DWI arrest that took place over six years ago on June 22, 1991.

After working late in Bellevue, Tom Medcalf had a few drinks before catching a ferry to Bainbridge Island around 2 a.m. Medcalf had barely disembarked from the ferry before he got stopped by Denise Giuntoli, one of the local constabulary who arrested him for drunk driving and took him to the Bainbridge Island police station.

Once they arrived at the police station, Giuntoli advised Medcalf about his obligations under the implied consent law. She specifically warned him that his license would be revoked if he refused to take a breath test. When Medcalf disagreed, a second officer repeated this warning but again to no avail. Even though his license had previously been revoked for refusing to take a breath test, Medcalf kept insisting that nothing would happen to him. (This proved partly true, as he was later found guilty of negligent driving but acquitted of DWI.)

Because he refused to take the breath test, Medcalf's license was eventually revoked for two years by the Department of Licensing. The driver responded by requesting a formal hearing.

At the hearing, Medcalf testified that in the early 1980s, he first began displaying symptoms of a mental or psychiatric condition known as obsessive-compulsive disorder. He explained that he'd been treated by a psychologist for the condition since 1985, and was taking medication -- at the time of his arrest in 1991 -- that more or less controlled it.

Medcalf also maintained that when the officers were trying to administer the breath test, he began going off into a little world of his own. He said his thoughts were of "Gary Gilmore, his execution, what he did to other people," and that even though he was subjectively willing to take a breath test, he couldn't do so while trying to counter these thoughts.

Medcalf's psychologist also joined the fray. There was a good likelihood, he said, that Medcalf had had an obsessive-compulsive disorder attack at the police station which "rendered him unable to comply" with the request for a blood test. Not buying it, the department affirmed the two-year revocation.

Medcalf then slowly weaved his way through the court system. After evidence of his mental disorder was barred by the trial judge, a Kitsap County jury found for the department in late 1993.

More than 30 months later our state appeals court affirmed. Medcalf then succeeded in asking our state Supreme Court to review his case.

Medcalf lost across the board.

It's true, the Supreme Court agreed, that our implied consent law doesn't apply to drivers who are mentally (or physically) incapable of refusing to take a breath test.

But it's also true the police can't read minds. Accordingly, by a 6-3 margin, the justices said that unless an alleged mental disorder is "objectively and physically manifested," it can't be used as a defense at a license revocation hearing. Medcalf clearly lost on that score, the court ruled, as there was no outward sign he was suffering from an obsessional disorder when he "refused" to take the breath test.

Given the nature of his condition, I'm not sure what Medcalf could have done to display it objectively. Fortunately, he'll have at least two years to mull over his options.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


Previous columns:



Email or user name:
Password:
 
Forgot password? Click here.