WA: While impoundment was permissible, state law required reasonable alternatives be considered first

While impoundment was statutorily permitted, state law requires alternatives be explored before impoundment. Here it wasn’t, so the impoundment is suppressed. State v. Froehlich, 2017 Wash. App. LEXIS 366 (Feb. 14, 2017):

3. Reasonable Alternatives to Impoundment

¶42 Even though the trial court erred in ruling that RCW 46.55.113(2)(b) and (c) did not apply here, we can affirm a trial court’s decision on any correct basis. State v. Vanderpool, 145 Wn. App. 81, 85, 184 P.3d 1282 (2008). Froehlich argues that Richardson’s impoundment of her vehicle was unlawful under Tyler because Richardson did not consider reasonable alternatives to impoundment. We agree.

¶43 The trial court did not make an express finding or conclusion on the existence of a reasonable alternative, but did tangentially address the issue. The trial court found that Richardson did not discuss any alternatives to impoundment with Froehlich. And in its conclusion of law regarding the second community caretaking requirement, the trial court distinguished this case from Tyler because in Tyler the officer explored reasonable alternatives to impoundment.

¶44 Richardson testified that he explored alternatives to impounding Froehlich’s car, although he did not explain what alternatives he explored. But the trial court did not make any finding that Richardson considered alternatives. And Richardson also admitted that this process did not include asking Froehlich about any other alternatives. One of the alternatives that an officer should consider is asking the driver if arrangements can be made for someone to move the vehicle.“Although an officer is not required to exhaust all possibilities, the officer must at least consider alternatives; attempt, if feasible, to obtain a name from the driver of someone in the vicinity who could move the vehicle.” Coss, 87 Wn. App. at 899. Richardson’s failure to ask Froehlich about alternatives showed that he did not consider reasonable alternatives to impoundment.

¶45 We acknowledge that there may be situations when an officer has no obligation to ask a driver about reasonable alternatives to impoundment. But here, the trial court entered unchallenged findings that Richardson had the opportunity to have discussions with Froehlich on several issues before she left the scene. Under the specific facts of this case, we hold that Richardson had an obligation to ask Froehlich about other alternatives to impounding the car and therefore that the State did not satisfy its burden under Tyler of establishing that Richardson considered reasonable alternatives to impoundment. 177 Wn.2d at 698-99.

¶46 Accordingly, we hold that even though Richardson’s impoundment of Froehlich’s car was authorized under RCW 46.55.113(2)(b) and (c), the impoundment was not lawful because Richardson did not consider reasonable alternatives.