City of Blaine v. Suess

Decision Date12 June 1980
Docket NumberNo. 46364,46364
Citation612 P.2d 789,93 Wn.2d 722
CourtWashington Supreme Court
PartiesCITY OF BLAINE, Respondent, v. Ernest SUESS, Petitioner.

Rusing & Platte, Richard C. Platte, Bellingham, for petitioner.

Nelle & Packer, Richard A. Nelle, Bellingham, for respondent.

WILLIAMS, Justice.

Petitioner Suess seeks review of a decision of the Court of Appeals affirming his conviction for driving while under the influence of alcohol. Blaine v. Suess, 22 Wash.App. 809, 592 P.2d 662 (1979). We reverse.

At approximately 1:45 a. m. on January 16, 1977, petitioner was stopped and arrested by Blaine Police Officer William Quaade for driving while under the influence of alcohol. Petitioner was transported to the Blaine Police Station by patrol car and, upon arriving at the station, was advised of his rights under RCW 46.20.308(1) (Laws of 1975, 1st Ex. Sess., ch. 287, § 4, p. 1225, amended, Laws of 1979, 1st Ex. Sess., ch. 176, § 3, p. 1629), including the right to take additional tests at his own expense after a breathalyzer test was administered. Officer Quaade then gave petitioner the breathalyzer and recorded a blood alcohol reading of .19 percent by weight.

After the breathalyzer, petitioner informed Officer Quaade that he wished to undergo additional tests, and the officer responded by stating that in accordance with usual practice petitioner would be transported to St. Luke's Hospital in Bellingham for the test. Petitioner indicated that that arrangement was acceptable to him. On the way to Bellingham, he renewed this request to the driver of the patrol car, a deputy sheriff, but petitioner was nevertheless taken directly to Whatcom County Jail in Bellingham, where he spent the night. 1 Petitioner testified that he made no further requests, because the deputy sheriff told him that he was going to jail and that blood tests were not conducted in the county jail building.

Petitioner was subsequently charged with and convicted of operating a motor vehicle while under the influence of or affected by intoxicating liquor. RCW 46.61.506 (Laws of 1975, 1st Ex. Sess., ch. 287, § 1, p. 1223). Prior to trial, he moved to suppress evidence obtained from the breathalyzer test, and after a guilty verdict was returned, he moved for an order in arrest of judgment or a new trial. These motions were based on the contention that he was denied the right to attempt to procure a chemical test in addition to the breathalyzer test administered by the police. The motions were denied, and following conviction petitioner appealed. In a split decision, the Court of Appeals affirmed the conviction, holding that the police did not deny petitioner a reasonable opportunity to procure the additional tests and that there was thus no due process violation. Blaine v. Suess, supra.

The right to have an additional scientific test of one's own choosing when arrested for driving while under the influence of alcohol is secured by statute. RCW 46.61.506(5) provides:

(5) The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.

In addition, the implied consent statute requires the police officer administering the breathalyzer test to inform the accused of his right to have additional tests. It provides, in pertinent part:

Such officer shall inform the person of his right to refuse the test, and of his right to have additional tests administered by any qualified person of his choosing as provided in RCW 46.61.506.

RCW 46.20.308(1).

Moreover, several Washington cases have affirmed an individual's right to undergo additional tests of his own choosing after he has either taken or refused the police-administered test. See, e. g., State v. Richardson, 81 Wash.2d 111, 499 P.2d 1264 (1972); Greenwood v. Department of Motor Vehicles, 13 Wash.App. 624, 536 P.2d 644 (1975).

Petitioner does not dispute that he was advised of his rights, but argues that he was unreasonably prevented from securing a timely sample of his blood after communicating to the police his desire for such a test. The failure to obtain the sample, he argues, directly impaired his ability to prepare a defense, as his due process right to a fair trial requires. The City of Blaine agrees that a defendant must be afforded a reasonable opportunity by the police to obtain additional tests. The crux of the dispute is whether the police in the present case did in fact provide petitioner a reasonable opportunity under all the circumstances.

In interpreting a statute identical to RCW 46.61.506, the Arizona Court of Appeals has held:

(W)hile the state is not required to provide the accused with a free blood test, or to release him from custody without bail, it may not unreasonably interfere with an accused's reasonable attempts to secure, at his own expense, a blood or other scientific test for the purpose of attempting to establish evidence of his sobriety at or near the crucial time under consideration.

Smith v. Cada, 114 Ariz. 510, 514, 562 P.2d 390, 394 (1977). In Cada, the police refused to grant defendant's request to call his attorney or to be released on bail in order to procure an independent blood test. The court held that the police had unreasonably interfered with Cada's right to obtain evidence for his defense, thus denying him his due process right to a fair trial.

In People v. Burton, 13 Mich.App. 203, 163 N.W.2d 823 (1968), the defendant was taken to police headquarters, where he asked the interviewing officer to call his doctor to arrange a blood alcohol test. While defendant was taken to the detention facility, the officer phoned and left a message for the doctor, who did not call back. The defendant...

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24 cases
  • Com. v. Alano
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 26 Aprile 1983
    ...v. Baker, 42 Ohio St.2d 351, 354, 328 N.E.2d 805 (1975). State v. Lewis, 266 S.C. 45, 48-49, 221 S.E.2d 524 (1976). Blaine v. Suess, 93 Wash.2d 722, 728, 612 P.2d 789 (1980). See Snodgrass v. Oklahoma ex rel. Dep't of Pub. Safety, 551 P.2d 259, 263 (Okl.1976); Holland v. Parker, 84 S.D. 691......
  • City of Spokane v. Kruger
    • United States
    • Washington Supreme Court
    • 10 Gennaio 1991
    ...no duty to volunteer to arrange for testing, they must not thwart an accused's attempts to make such arrangements." Blaine v. Suess, 93 Wash.2d 722, 728, 612 P.2d 789 (1980). I also agree with the Superior Court and the Court of Appeals that dismissal is the proper remedy for this rule viol......
  • State v. Brayman
    • United States
    • Washington Supreme Court
    • 3 Marzo 1988
    ...that the State thus impermissibly "thwarts" defendant's attempts to exercise their rights to additional tests. See Blaine v. Suess, 93 Wash.2d 722, 612 P.2d 789 (1980). In Blaine, a DWI defendant's conviction was reversed because police officers "thwarted" his attempts to obtain an independ......
  • Bilbrey v. State, 1 Div. 405
    • United States
    • Alabama Court of Criminal Appeals
    • 10 Marzo 1987
    ...denied, 409 U.S. 979, 93 S.Ct. 332, 34 L.Ed.2d 242 (1972); State v. Magai, 96 N.J.Super. 109, 232 A.2d 477 (1967); City of Blain v. Suess, 93 Wash.2d 722, 612 P.2d 789 (1980); State v. Reed, 36 Wash.App. 193, 672 P.2d 1277 (1983). See generally, 45 A.L.R.4th 11. To refuse an accused this re......
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