[No. 24409-1-III. Division Three. September 12, 2006.]
THE STATE OF WASHINGTON , Respondent , v. THOMAS ROBERT WAYNE , Appellant .
[1] Statutes - Application to Facts - Review - Standard of Review. The application of a statute to an undisputed specific set of facts is a question of law that is reviewed de novo.
[2] Automobiles - Operator's License - Revocation - Commission of Felony - Use - Accomplishment of Crime - Necessity. A criminal defendant's driver's license may be revoked under RCW 46.20.285 (4) for using a motor vehicle in the commission of a felony only if the vehicle was used to accomplish the crime.
[3] Automobiles - Operator's License - Revocation - Commission of Felony - Use - Possessory Offenses. RCW 46.20.285 (4) requires the revocation of a defendant's driver's license if the defendant used a motor vehicle in the commission of a felony offense. A motor vehicle is not ''used'' in the commission of a possessory felony unless the possession has some reasonable relation to the vehicle's operation or the vehicle's use contributes in some reasonable degree to the commission of the offense. This test is not met when the prohibited items, such as drugs, are discovered on the defendant during a search incident to an arrest for a driving-related offense; the prohibited items did not contribute to the driving-related offense; and the defendant did not transport the prohibited items with an intent to deliver them.
Nature of Action: Prosecution for unlawful possession of a controlled substance, driving while under the influence of an intoxicant, and failure to remain at the scene of an accident. Evidence of the controlled substance was discovered on the defendant's person in the course of a search made incident to his arrest for the driving offenses.
Superior Court: After dismissing the charge of failure to remain at the scene of an accident, the Superior Court for Spokane County, No. 05-1-00669-3, Linda G. Tompkins, J., on July 8, 2005, entered a judgment on a plea of guilty to unlawful possession of a controlled substance and driving while under the influence of an intoxicant. The court also found that the defendant had used his motor vehicle to commit the felony offense of unlawful possession of a controlled substance and that the defendant's driver's license is statutorily subject to revocation therefor.
Sept. 2006 State v. Wayne 874
134 Wn. App. 873
Court of Appeals: Holding that the trial court improperly determined that the defendant used a motor vehicle in the commission of a felony offense, the court reverses the "use" finding.
Cece L. Glenn , for appellant .
Steven J. Tucker , Prosecuting Attorney, and Kevin M. Korsmo and Dianne G. Dougherty , Deputies, for respondent .
¶1 SWEENEY, C.J. - RCW 46.20.285 (4) requires the suspension of a defendant's driver's license when the State shows that the defendant "used" a car to commit a felony. Here, a driver was caught with cocaine in his pants pocket. Police stopped him for driving while under the influence and hit and run. The question is whether his car was "used" in the commission of the felony - possession of cocaine. We conclude it was not. We therefore reverse the license suspension.
FACTS
¶2 A police officer stopped Thomas Robert Wayne's car. Mr. Wayne had been drinking and struck two other cars. The officer arrested Mr. Wayne and searched him incident to arrest. The officer found a bottle of cocaine in Mr. Wayne's pocket.
¶3 The State charged Mr. Wayne with possession of a controlled substance, driving while under the influence, and failure to remain at the scene of an accident. Mr. Wayne pleaded guilty to possession of a controlled substance and driving while under the influence. The State moved to dismiss count three (failure to remain at the scene of an accident).
Sept. 2006 State v. Wayne 875
134 Wn. App. 873
¶4 The court entered a finding that the charge for possession of a controlled substance was "a felony in . . . which a motor vehicle was used." Clerk's Papers at 40. And so it found Mr. Wayne's driver's license should be revoked.
DISCUSSION
¶5 Mr. Wayne argues that the trial court erred when it suspended his license. He argues that he did not "use" his car to commit a felony as the statute requires. He argues that the use of his car was incidental to his felony conviction for possession of a controlled substance because the cocaine was in his pocket.
[1]¶6 We review the court's application of this statute de novo. State v. Hearn , 131 Wn. App. 601 , 609, 128 P.3d 139 (2006).
[2, 3]¶7 RCW 46.20.285 requires that a driver's license be suspended following a conviction for "[a]ny felony in . . . which a motor vehicle is used." RCW 46.20.285 (4). Used means that the vehicle must be " 'employed in accomplishing' " a crime. State v. Batten , 95 Wn. App. 127 , 129-30, 974 P.2d 879 (1999) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2524 (1996)), aff'd , 140 Wn.2d 362 , 997 P.2d 350 (2000). Accordingly, there must be " 'some reasonable relation to the operation of a motor vehicle or . . . the use of the motor vehicle must contribute in some reasonable degree to the commission of the felony.' " Hearn , 131 Wn. App. at 610 (quoting Batten , 95 Wn. App. at 131 ).
¶8 A car used to store or conceal a controlled substance falls within the meaning of the statute. Id. ; Batten , 95 Wn. App. at 131 . But in each of these cases the drugs were stored in the car, not on a person. Hearn , 131 Wn. App. at 610 -11; Batten , 95 Wn. App. at 131 . The use of the car is merely incidental if possession is with the person rather than the car. See Hearn , 131 Wn. App. at 610 -11.
¶9 Here, the bottle of cocaine was in Mr. Wayne's pocket. There is, then, no "reasonable relation" between Mr. Wayne's
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134 Wn. App. 873
possession of a controlled substance and the operation of his car. Id. The drugs did not contribute to Mr. Wayne's vehicle accident; the alcohol did. And Mr. Wayne did not transport the drugs with an intent to deliver them.
¶10 The car here did not then " 'contribute in some reasonable degree to the commission of the felony.' " Id. (quoting Batten , 95 Wn. App. at 131 ).
¶11 We therefore reverse the suspension of Mr. Wayne's driver's license.\
SCHULTHEIS and KATO , JJ., concur.