IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
ELON ALEX YALLUP,
Appellant.
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No. 28040-3-III
Division Three
PUBLISHED OPINION
Korsmo, A.C.J. — Elon Yallup challenges his conviction for felony driving while
under the influence (DUI), arguing that the State cannot enforce the implied consent laws
against an enrolled member of the Yakama Nation driving on state highways on the
reservation. We conclude that the implied consent statute is primarily a criminal statute
rather than a civil regulatory statute as that distinction is applied by the United States
Supreme Court in cases interpreting Public Law 280.
FACTS
Mr. Yallup was observed on September 8, 2007, driving his car off the road and
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State v. Yallup
into a canal located on the Yakama Indian Reservation. Emergency crews rescued him
and took him to the Toppenish Community Hospital.1 Washington State Patrol Trooper
Russell Sharpe contacted him at the hospital. Mr. Yallup did not respond to the trooper,
who arrested him and had blood drawn pursuant to Washington’s implied consent statute.
Mr. Yallup was charged in the Yakima County Superior Court with one count of
felony DUI, driving without an interlock device, and second degree driving while license
suspended or revoked. He moved to suppress the results of the blood alcohol test on the
basis that the implied consent statute could not be applied to an enrolled member of the
Yakama Nation who was driving on the reservation. The motion was denied.
The matter proceeded to jury trial. The blood alcohol test, showing a .27 percent
reading, was admitted. The parties also entered a stipulation for the jury that: (1) Mr.
Yallup’s driver’s license was suspended in the second degree and he was not “eligible for
reinstatement due to a prior conviction of RCW 46.61.502 or 46.61.504” and (2) he “is
required by the Department of Licensing to operate only a motor vehicle with an ignition
interlock device.” Clerk’s Papers (CP) at 55. The stipulation expressly left open the
question of whether or not Mr. Yallup was driving the vehicle when it crashed. Defense
counsel argued the case on the theory that Mr. Yallup was not the driver.
1
Toppenish is entirely within the Yakama Indian Reservation. Wesley v.
Schneckloth, 55 Wn.2d 90, 91, 346 P.2d 658 (1959).
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The jury found Mr. Yallup guilty on all three counts. The trial court used an
offender score of seven when scoring the felony DUI count and imposed a standard range
sentence of 57 months on that count. A term of 9-18 months of community custody was
also imposed. Mr. Yallup then timely appealed to this court.
ANALYSIS
The primary issue in this case is whether the implied consent statute2 cannot be
applied to Mr. Yallup because of either Public Law 280 or the treaty with the Yakama
Nation. Mr. Yallup also argues that the trial court used the wrong offender score and
lacked authority to impose community custody. We will address those arguments in the
order listed.
Public Law 280. The application of state laws to Native Americans in “Indian
country”3 raises sensitive questions of sovereignty. Reservations are subject to federal
2
On the same theories, Mr. Yallup also argues that the state of Washington lacked
authority to suspend or even require that he have a driver’s license or to impose an
interlock requirement. Our discussion of the implied consent laws includes our view of
his challenges to these other challenges. We also observe, however, that these license
suspension and interlock requirements are clearly criminal sanctions. The stipulation
recognizes that Mr. Yallup’s license was suspended due to prior DUI or physical control
convictions. CP at 55. Similarly, the ignition interlock requirement is a sanction imposed
due to a criminal conviction. Former RCW 46.61.5055(10)(a) (2007); RCW 46.20.720.
There simply is no question but that those obligations were imposed on Mr. Yallup due to
his prior criminal behavior.
3
The definition of “Indian country” includes “all land within the limits of any
Indian reservation under the jurisdiction of the United States government . . . including
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law, but wholesale application of state law would diminish tribal autonomy. Instead,
state laws apply only to the extent authorized by Congress. California v. Cabazon Band
of Mission Indians, 480 U.S. 202, 207, 94 L. Ed. 2d 244, 107 S. Ct. 1083 (1987).
Public Law 280 authorized the states to assert jurisdiction over reservations within
their boundaries. McCrea v. Denison, 76 Wn. App. 395, 398, 885 P.2d 856 (1994).
Washington’s response to Public Law 280 is found in chapter 37.12 RCW. Washington
asserted civil and criminal jurisdiction over Indians on the reservation in eight specified
areas. RCW 37.12.010. The one area in question here is the assertion of jurisdiction
over the “Operation of motor vehicles upon the public streets, alleys, roads and
highways.” RCW 37.12.010(8) (partial).
In Cabazon Band, the United States Supreme Court addressed California’s attempt
to regulate tribal high-stakes bingo operations on two reservations. 480 U.S. at 204-206.
Some forms of gambling were permitted in California subject to various regulations;
criminal penalties were included in the regulatory scheme. Id. at 209-211. Adopting an
approach used by the Ninth Circuit in earlier California tribal gambling cases, the
Cabazon Band majority distinguished criminal statutes from regulatory statutes.4 Id. at
rights-of-way running through the reservation.” 18 U.S.C. § 1151 (2006).
4
The enforcement mechanism was not important. “But that an otherwise
regulatory law is enforceable by criminal as well as civil means does not necessarily
convert it into a criminal law within the meaning of Pub. L. 280. Otherwise, the
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209-210. If the conduct was generally prohibited, it was criminal in nature; if the
conduct was permitted, but regulated, it was considered civil in nature. Id. The court
concluded that gambling was a regulated industry rather than a prohibited endeavor and
declined to permit California to regulate the bingo activities. Id. at 210-212.
Seizing upon the Cabazon Band analysis, Mr. Yallup argues that because driving
is generally permitted, the licensing of drivers is a regulatory scheme rather than a
criminal prohibition. He therefore concludes that the State lacks authority to require
licenses for tribal members driving on the reservation. He further argues that the license
enforcement regime, including the implied consent law, is also regulatory in nature and
cannot be enforced against him. Because of that, he concludes that his blood alcohol test
was improperly admitted against him at trial.
There are at least three difficulties with his argument. The initial difficulty
involves his claim that Cabazon Band is even applicable to this case. That problem arises
because Washington and California are not similarly situated under Public Law 280.
California was one of five states granted jurisdiction by that legislation over some or all
of the reservations within their boundaries. Cabazon Band, 480 U.S. at 207. Those five
“mandatory” states were granted broad criminal law authority, but very limited civil law
distinction between § 2 and § 4 of that law could easily be avoided and total assimilation
permitted.” Cabazon Band, 480 U.S. at 211.
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authority over reservation lands because civil authority was limited to actions between
private parties.5 Id. In contrast, Washington and the other states were granted permissive
civil and criminal authority over reservations within their boundaries “to assume
jurisdiction at such time and in such manner” as the State chose. Pub. L. 280 § 7, 67 Stat.
at 590. The extent of the assertion of state jurisdiction varies significantly across the
country. Washington, however, asserted its full civil and criminal jurisdiction in eight
specific areas.6 RCW 37.12.010. Thus, the Cabazon Band test, which distinguishes
between criminal and civil jurisdiction, does not appear to be applicable.7 The actual
5
The criminal laws of the five mandatory states applied “to the same extent that
such State has jurisdiction over offenses committed elsewhere within the State.” Pub. L.
280 § 2(a), 67 Stat. at 588. In contrast, the civil authority of those states applied to “civil
causes of action between Indians or to which Indians are parties.” Pub. L. 280 § 4(a), 67
Stat. at 588.
6
Mr. Yallup argues that the decision in Confederated Tribes of the Colville
Reservation v. Washington, 938 F.2d 146 (9th Cir. 1991), cert. denied, 503 U.S. 997
(1992), which prohibited Washington from asserting authority over traffic infractions,
governs here. Since that case involved civil infractions rather than crimes, it is not on
point, a topic we discuss infra. We also note, however, that in Confederated Tribes the
Ninth Circuit looked to the civil jurisdiction conferred on the mandatory states by § 4(a)
of Public Law 280 rather than the permissive jurisdiction conferred by § 7 to the
nonmandatory states such as Washington.
7
The primary concern in Cabazon Band and the earlier decision in Bryan v. Itasca
County, Minnesota, 426 U.S. 373, 48 L. Ed. 2d 710, 96 S. Ct. 2102 (1976) (civil
authority did not include ability to impose state taxes on reservations), was that states not
use their civil authority to usurp tribal authority or impinge on tribal sovereignty. In
contrast here, the criminal jurisdiction of Washington is being asserted against one
individual, a tribal member, for his actions as a private individual.
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question is whether Washington has asserted jurisdiction rather than what type of
jurisdiction it has asserted.
This question was presented by the decision in State v. Pink, 144 Wn. App. 945,
185 P.3d 634 (2008). There the defendant, a tribal member, was charged with unlawful
possession of a firearm discovered in a car during a traffic stop on a state highway
running through a reservation. Id. at 947-948. The charges were dismissed because the
State lacked authority to prosecute the crime since it did not involve the operation of a
motor vehicle on a public highway under RCW 37.12.010(8). Id. at 949, 956. If
Washington had a broad grant of general criminal jurisdiction, as appears to be the case
in California, the issue would not have even arisen. The Cabazon Band analysis simply
is not apropos here.
The second difficulty with Mr. Yallup’s argument involves the level of generality
at which he argues. The question here is not driving and driver’s licensing in general.
The specific question involves the Washington’s impaired driving statutes and their
application to Mr. Yallup’s conduct on September 8, 2007. Addressing the implied
consent statute as an adjunct of a licensing scheme rather than on its own merits does not
resolve the fundamental question of what type of statute it is.
The third difficulty we have concerns the merits of Mr. Yallup’s claim. Even if
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No. 28040-3-III
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we assume that Cabazon Band is applicable to this case because Washington has greater
criminal authority over reservation roads than it has civil authority, there is no question
that the challenged statutes are criminal in nature. It is a crime to drive in the state of
Washington without a valid driver’s license. RCW 46.20.005.8 It is a crime in this state
to drive when one’s license or privilege has been suspended or revoked. RCW
46.20.342. It is a gross misdemeanor crime to drive, or be in physical control of a
vehicle, when one is impaired by alcohol or drugs. RCW 46.61.502, .504. In some
instances, impaired driving or physical control is a felony. RCW 46.61.502(6), .504(6),
.5055(4). As a result of impaired driving convictions, the driver’s license is suspended
and an ignition interlock may be required for future driving. RCW 46.61.5055(5), (6),
(9).
The implied consent statute, RCW 46.20.308, was adopted to “control or reduce
the drunk-driver hazard to highway safety.” State v. Moore, 79 Wn.2d 51, 53, 483 P.2d
630 (1971). It operates by recognizing that drivers have consented to alcohol testing by
the operation of a motor vehicle within the state. RCW 46.20.308(1). Consent can be
withdrawn in some circumstances, but the license to drive will be suspended when
consent is withdrawn. RCW 46.20.308(2)(a). In the event that consent is withdrawn,
8
It is a noncriminal traffic infraction to fail to have a driver’s license present while
driving or fail to display it to an officer upon demand. RCW 46.20.017.
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evidence of the refusal to take the test “may be used in a criminal trial.” RCW
46.20.308(2)(b). The statute was upheld in Moore against various constitutional
challenges, with the court recognizing the statute “having as its purpose the reduction of
traffic carnage occasioned by the inebriated driver.” 79 Wn.2d at 58.
The clear focus of the implied consent statute is gathering evidence for prosecuting
criminal cases of suspected impaired driving. Statutes that authorize evidence collection
in support of prosecuting criminal cases are properly classified as criminal in nature. To
the extent that the difference between criminal and civil jurisdiction even matters under
RCW 37.12.010(8), we have no trouble categorizing the implied consent statute as
criminal.9
Our courts have previously recognized that Washington has validly asserted
jurisdiction over criminal driving offenses falling within the purview of RCW
37.12.010(8). State v. Abrahamson, 157 Wn. App. 672, 238 P.3d 533 (2010) (attempting
to elude, driving while under the influence, and driving while license revoked in the first
degree); Pink, 144 Wn. App. at 955-956 (a passenger’s unlawful possession of a firearm
did not constitute a driving offense). Washington’s implied consent statute falls within
9
Other states likewise have upheld implied consent statutes against Public Law
280 challenges. State v. McCormack, 117 Idaho 1009, 1013-1015, 793 P.2d 682 (1990);
Bray v. Comm’r of Pub. Safety, 555 N.W.2d 757 (Minn. Ct. App. 1996).
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No. 28040-3-III
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the criminal jurisdiction of RCW 37.12.010(8). The State had authority under that
provision to prosecute Mr. Yallup for felony DUI, driving without an interlock device,
and second degree driving while license suspended or revoked.
Public Law 280 did not bar the criminal prosecution of this case.
Treaty Protections. Mr. Yallup also argues that the implied consent statute cannot
be applied to him because it runs afoul of the treaty with the Yakama Nation. See Treaty
with the Yakamas, 12 Stat. 951 (1855). In particular, he alleges that it contravenes the
provision guaranteeing freedom to travel:
And provided, That, if necessary for the public convenience, roads may be
run through the said reservation; and on the other hand, the right of way,
with free access from the same to the nearest public highway, is secured to
them; as also the right, in common with citizens of the United States, to
travel upon all public highways.
Id. at 952-953 (Art. III).
Indian treaties are construed as the Indians would have naturally understood the
language to mean at the time the treaty was entered into. Minnesota v. Mille Lacs Band
of Chippewa Indians, 526 U.S. 172, 196, 143 L. Ed. 2d 270, 119 S. Ct. 1187 (1999).
Any ambiguities must be resolved in the Indian’s favor. Id. at 200.
Mr. Yallup relies upon two commercial cases that have interpreted the freedom to
travel provision of this treaty. Yakama Indian Nation v. Flores, 955 F. Supp. 1229, 1233
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No. 28040-3-III
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(E.D. Wash. 1997), aff’d sub nom. Cree v. Flores, 157 F.3d 762 (9th Cir. 1998), required
Washington to apportion licensing and registration fees on logging trucks owned by tribal
members because nonapportioned fees restricted the ability to bring goods to market, a
right that had been understood at the time of the treaty. Id. at 1259-1260. However, the
State could impose registration and identification requirements as long as they were not
accompanied by fees. Id. at 1257. In United States v. Smiskin, 487 F.3d 1260 (9th Cir.
2007), this provision was construed to exempt Yakama tribal members from the
Contraband Cigarette Trafficking Act, 18 U.S.C. § 2342(a), because Washington’s notice
requirement interfered with their ability to bring goods to market. Id. at 1265.
These commercially-oriented cases are not particularly helpful as they both turned
on the treaty right to bring tribal goods to market. More fundamentally, the right to travel
assured by the treaty is not the same as the right to drive. Washington courts have
distinguished between the constitutional right to travel and the right to drive. Those cases
provide the better analogy here.
This court recognized the distinction between travel and driving in City of Spokane
v. Port, 43 Wn. App. 273, 716 P.2d 945, review denied, 106 Wn.2d 1010 (1986). There,
canvassing numerous authorities, this court had no difficulty concluding that requiring a
driver’s license did not impinge upon the right to travel. Id. at 274-277. Similarly, in
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No. 28040-3-III
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State v. Clifford, 57 Wn. App. 127, 787 P.2d 571, review denied, 114 Wn.2d 1025
(1990), this court rejected a religious challenge to driver’s licenses. Reiterating its earlier
distinction between the right to travel and a driver’s license, the court stated that the
appellants were
free to travel public roads using alternative means of transportation, such as
horseback, bicycle, taxi, or public transit. Requiring them to obtain a
driver’s license prior to operating a motor vehicle does not
unconstitutionally infringe upon their freedom of movement.
Id. at 130.
Similarly, requiring Mr. Yallup to drive with a valid license and without being
impaired by alcohol or drugs did not impede his right to travel. While he needed to be
licensed and sober in order to exercise his right to use the roads “in common with” other
citizens of the United States, he was free to travel by other methods if he did not want to
live up to those obligations. He could travel as a passenger in a motor vehicle (which he
claimed to be at trial), on public transit, or on alternative transportation. If, however, he
chose to drive, he was subject to the same reasonable restrictions imposed on all others
using the roadways.
The right to travel guaranteed by the treaty with the Yakama Nation did not
exempt Mr. Yallup from the criminal statutes governing use of the roadways. He was
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No. 28040-3-III
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subject to the licensing and nonimpaired driving requirements. The treaty did not bar the
criminal prosecution of this case.
Sentencing Issues. Mr. Yallup next presents two claims related to his sentence,
asserting that the trial court used an incorrect offender score and lacked authority to
impose a term of community custody.
The parties agree that a 1990 conviction for physical control should not have been
included in the offender score. We agree with the parties and remand for resentencing.
Mr. Yallup also argues that the trial court erred by imposing the term of
community custody. He cites to former RCW 9.94A.545 (2007) and argues that it does
not authorize community custody in this instance. However, that statute only applies to
sentences of 12 months or less. His authority is not apropos.
Instead, the relevant provision governing this case is former RCW 9.94A.715
(2007). That statute provided for a term of community custody whenever a person is
sentenced to serve a term with the department of corrections for a crime against a person.
Felony DUI is a “crime against persons.” RCW 9.94A.411(2). The trial court correctly
imposed a term of 9-18 months of community custody. Former RCW 9.94A.715.
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No. 28040-3-III
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CONCLUSION
The convictions are affirmed. The case is remanded for resentencing.
____________________________
Korsmo, A.C.J.
WE CONCUR:
______________________________
Sweeney, J.
______________________________
Siddoway, J.
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