Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
41539-9 |
| Title of Case: |
State Of Washington, Respondent V Allen Kelly Dupuis, Appellant |
| File Date: |
06/12/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Grays Harbor County Superior Court |
| Docket No: | 09-1-00370-2 |
| Judgment or order under review |
| Date filed: | 11/08/2010 |
| Judge signing: | Honorable F Mark Mccauley |
JUDGES
------
| Authored by | Christine Quinn-Brintnall |
| Concurring: | J. Robin Hunt |
| Lisa Worswick |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | Maureen Marie Cyr |
| | Washington Appellate Project |
| | 1511 3rd Ave Ste 701 |
| | Seattle, WA, 98101-3635 |
Counsel for Respondent(s) |
| | Gerald R. Fuller |
| | Grays Harbor Co Pros Ofc |
| | 102 W Broadway Ave Rm 102 |
| | Montesano, WA, 98563-3621 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 41539-9-II
Respondent,
v.
ALLEN K. DUPUIS, PUBLISHED OPINION
Appellant.
Quinn-Brintnall, J. -- Allen K. Dupuis appeals the trial court's finding that his driver's
license must be revoked under RCW 46.20.285(4) because he used a motor vehicle while
committing the offense of second degree taking or riding in a motor vehicle without the owner's
permission. Because Dupuis used a motor vehicle to commit his underlying offense, and because
the legislature requires the revocation of driving privileges of those who have been convicted of
offenses even when driving is an essential element of the crime, we affirm.
FACTS
Dupuis lived with Kelli Armfield and her mother, Marilea Armfield. Marilea Armfield was
the protected person in a guardianship proceeding. Following a hearing, the guardianship court
ordered Dupuis to transfer possession of the car he had been driving to Marilea Armfield's
guardian. Dupuis gave two keys to the guardian's attorney and left the courtroom. When family
No. 41539-9-II
members went outside and tried to use the keys, they did not work. Dupuis then went to the
vehicle, used the touch pad to unlock it, and drove away. Police recovered the vehicle five days
later in Snohomish County at an impound lot.
The State charged Dupuis with second degree taking or riding in a motor vehicle without
the owner's permission and he entered an Alford plea.1 At sentencing, defense counsel argued
that the Department of Licensing was not authorized to revoke Dupuis's driver's license because
a motor vehicle was not used in the offense, but the trial court disagreed. The court ordered the
clerk "to immediately forward an Abstract of Court Record to the Department of Licensing,
which must revoke [Dupuis's] driver's license." Clerk's Papers at 25.
Dupuis now appeals the finding that he was using the motor vehicle when he took it
without permission and the corresponding license revocation.
ANALYSIS
Applicability of License Revocation Statute, RCW 46.20.285
RCW 46.20.285(4) requires revocation of the driver's license of any person who uses a
motor vehicle in the commission of a felony. Because this case concerns the application of the
statute to a specific set of facts, our review is de novo. State v. Hearn, 131 Wn. App. 601, 609,
128 P.3d 139 (2006).2
RCW 46.20.285 does not define "use," but we have cited the plain and ordinary meaning
1 See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct 160, 27 L. Ed. 2d 162 (1970); State v.
Newton, 87 Wn.2d 363, 552 P.2d 682 (1976).
2 This issue is not moot because the license revocation period is not triggered until the underlying
conviction becomes final. RCW 46.20.285; see also City of Redmond v. Bagby, 155 Wn.2d 59,
64, 117 P.3d 1126 (2005) (under RCW 46.20.285, license suspension is stayed until conviction
becomes final).
2
No. 41539-9-II
of the word in finding that, in order for RCW 46.20.285(4) to apply, a vehicle must have been
employed in accomplishing the crime. State v. Batten, 95 Wn. App. 127, 129-30, 974 P.2d 879
(1999), aff'd, 140 Wn.2d 362, 997 P.2d 350 (2000). The relevant test is whether the felony had
some reasonable relationship to the operation of a motor vehicle, or whether use of a motor
vehicle contributed in some reasonable degree to the commission of the felony. State v. B.E.K.,
141 Wn. App. 742, 746, 172 P.3d 365 (2007) (citing Batten, 140 Wn.2d at 365).
Dupuis argues that a motor vehicle is incidental to and not used to commit a crime if it
serves simply as a means of transportation from the scene. As support, he cites two cases where
the defendants' possession of drugs had no relationship to the cars they were driving when they
were arrested and did not require license revocation under RCW 46.20.285(4). See State v.
Wayne, 134 Wn. App. 873, 875, 142 P.3d 1125 (2006) (use of car is merely incidental if
possession is with the person rather than the car); Hearn, 131 Wn. App. at 610-11 (drugs found
in defendant's effects did not have reasonable relation to operation of vehicle such that use of
vehicle contributed to commission of offense). Dupuis contrasts these holdings to a case where
the defendant obtained cocaine in exchange for giving someone a ride in his car. State v. Griffin,
126 Wn. App. 700, 708, 109 P.3d 870 (2005). The use of the car was not incidental but
contributed directly to the crime of cocaine possession and was sufficient to trigger RCW
46.20.285(4). Griffin, 126 Wn. App. at 708.
Dupuis also cites California cases concerning an almost identical license revocation
statute. Cal. Veh. Code § 13350(a)(2); see Batten, 140 Wn.2d at 366 (citing as support
California case dealing with that state's license revocation statute). The California Court of
Appeals found the statute triggered when the defendant used a car to travel to and from the
3
No. 41539-9-II
burglary scene and to conceal the fruits of his crime. In re Gasper D., 22 Cal. App. 4th 166, 170,
27 Cal. Rptr. 2d 152 (1994); see also People v. Gimenez, 36 Cal. App. 4th 1233, 1237, 42 Cal.
Rptr. 2d 681 (1995) ("use" found under similar facts even though theft was not completed).
Dupuis contends that because he used the motor vehicle only to leave the scene, he did not use it
in a manner that implicated Washington's license revocation statute.
Dupuis also argues that where the car is merely the object of the crime, RCW
46.20.285(4) does not apply. As support, he cites this court's decision in B.E.K., where the
juvenile defendant was convicted of second degree malicious mischief for spray painting a police
vehicle. 141 Wn. App. at 744. License revocation under RCW 46.20.285(4) was not required
because the defendant did not employ the patrol car to commit his act of mischief; rather, he
simply made the car the object of his crime. B.E.K., 141 Wn. App. at 748. The nexus between
the crime and the vehicle was based not on a manner of use but on a relationship similar to that
between an offender and his victim. B.E.K., 141 Wn. App. at 748.
Where a vehicle was both the object and the instrumentality of the offense, however,
RCW 46.20.285(4) applied. State v. Dykstra, 127 Wn. App. 1, 12, 110 P.3d 758 (2005), review
denied, 156 Wn.2d 1004 (2006). As part of his participation in an auto theft ring, Dykstra used
cars to drive around looking for others to steal, and he also took possession of the stolen cars by
driving them away from the scene. Dykstra, 127 Wn. App. at 12. Division Three of this court
held that the record supported the trial court's finding that Dykstra used a motor vehicle in
committing first degree theft. Dykstra, 127 Wn.2d at 12.
Division Three recently applied similar reasoning when the defendant argued that his
possession of a stolen vehicle did not involve use of a vehicle in the manner contemplated by
4
No. 41539-9-II
RCW 46.20.285(4). State v. Contreras, 162 Wn. App. 540, 254 P.3d 214, review denied, 172
Wn.2d 1026 (2011). In rejecting this argument, the court first referred to B.E.K., where the
police vehicle was only the object of the crime. Contreras, 162 Wn. App. at 547 (citing B.E.K.,
141 Wn. App. at 748). Division Three then found the facts in Contreras distinguishable:
Here, Mr. Contreras used this car. He tried to relicense it. He possessed
it. It was not something he did to the car. It was his use and his possession and
assertion of ownership that satisfied the elements of the [crime].
He drove the car to the state patrol office and attempted to relicense it with
the false VIN tags from his previous car. The car was not simply the object upon
which he visited his crime. The court, then, did not err by finding that Mr.
Contreras used a motor vehicle in the commission of a felony.
162 Wn. App. at 547 (citations omitted).
Dupuis argues that both Dykstra and Contreras are distinguishable because he used the
car only as a means to transport himself from the scene. The felony to which he pleaded guilty
did not occur, however, while the car was parked outside the courthouse. Rather, it occurred
when Dupuis drove the vehicle away without permission. Although it is possible to take a car
without using it (as when, for example, a tow truck is employed), Dupuis used the car to
accomplish the crime of taking or riding in a motor vehicle without the owner's permission. See
B.E.K., 141 Wn. App. at 748 (offender must operate or use vehicle in some fashion to carry out
the crime).
Dupuis also argues, however, that the reference to "use" in RCW 46.20.285(4) is
ambiguous because his underlying offense already punishes him for using a motor vehicle. He
asserts that under the rule of lenity, the license revocation provision should not apply in this
instance. See B.E.K., 141 Wn. App. at 745 (under the rule of lenity, if two possible statutory
constructions are permissible, the court construes the statute strictly against the State in favor of a
5
No. 41539-9-II
criminal defendant). But when read in context, the fact that operating a motor vehicle is already
an essential element of taking a motor vehicle without the owner's permission does not render the
license revocation statute either ambiguous or inapplicable to Dupuis. See State v. Jacobs, 154
Wn.2d 596, 600, 115 P.3d 281 (2005) (plain meaning of statute is discerned in part from context
of statute in which provision is found). With one exception, the other subsections of RCW
46.20.285 also require revocation of the privilege to drive despite the fact that operating a motor
vehicle is an essential element of the underlying offense. See RCW 46.20.285(1) (vehicular
homicide), .285(2) (vehicular assault), .285(3) (driving under the influence), .285(5) (hit and run),
and .285(7) (reckless driving); but see RCW 46.20.285(6) (perjury or false statement or affidavit
under Title 46 RCW or other law relating to ownership or operation of motor vehicle).
In particular, subsections (3) and (7) of RCW 46.20.285 require revocation where the
defendant has already been punished solely for driving a motor vehicle, albeit in a compromised
manner. These subsections and subsection (4) were passed simultaneously so are in pari materia
and should be construed together in determining their meaning.3 In re Arbitration of Mooberry,
108 Wn. App. 654, 658, 32 P.3d 302 (2001); see also State v. Williams, 94 Wn.2d 531, 547, 617
P.2d 1012 (1980) (purpose of reading statutory provisions in pari materia with related provisions
is to determine legislative intent underlying entire statutory scheme and to read the provisions as a
unified whole). When viewed as a whole, RCW 46.20.285 clearly contemplates revocation of a
driver's license following a crime involving the operation of a motor vehicle. We see no
3 Enacted in 1965, the subsections in RCW 46.20.285 were renumbered in 1983. Laws of 1965,
Ex. Sess. ch. 121, § 24; Laws of 1983, ch. 165, § 15.
6
No. 41539-9-II
ambiguity sufficient to trigger the rule of lenity and hold that, as a matter of law, the trial court
did not err in applying RCW 46.20.285(4) to Dupuis.
Affirmed.
QUINN-BRINTNALL, J.
We concur:
HUNT, J.
WORSWICK, C.J.
7
|