State v. Entzel
|805 P.2d 228,116 Wn.2d 435
|21 February 1991
|United States State Supreme Court of Washington
|STATE of Washington, Petitioner, v. Donald H. ENTZEL, Respondent. En Banc
Larson, Tracy & Ries, P.S., Larry W. Larson, Moses Lake, for respondent.
At issue in this case is whether the Superior Court erred in reversing an automobile driver's District Court conviction of driving while under the influence (DWI). We hold that the dismissal was improper, reverse the Superior Court and order that the District Court conviction be reinstated.
The driver, Donald H. Entzel, was arrested on December 27, 1986 for DWI and resisting arrest. He refused to cooperate with the officer's attempt to administer field sobriety tests. Other officers had to be called to the scene to assist in making the arrest.
At the time of the arrest, the officer did not offer to give a breath test nor did the driver request that he be permitted to obtain one. The arresting officer's report and testimony are to the effect that he did not attempt to obtain a Breathalyzer test because such an attempt would have been futile in view of the driver's behavior in resisting arrest.
Mr. Entzel, the driver, was tried before a Grant County jury and found guilty of driving while under the influence, 1 and of resisting arrest. 2
On appeal, the Superior Court affirmed the resisting arrest conviction but reversed the DWI conviction. This court granted the State's motion for discretionary review of the Superior Court order vacating and dismissing the district court DWI conviction. The conviction for resisting arrest is not in issue.
The State's challenge is to the portion of the Superior Court order which held that absent exigent circumstances, the offer of a breath test is mandatory when a police officer takes a driver into custody having reasonable grounds to believe the driver is under the influence of alcohol.
Two issues are presented.
ISSUE ONE. Does Washington's implied consent statute, RCW 46.20.308, impose a mandatory duty on police officers to offer a breath test to all persons accused of driving while under the influence?
ISSUE TWO. Even absent such a statutory duty, when the State elects not to invoke the implied consent statute by asking for a breath test, must it nonetheless advise a DWI suspect that he or she has a right to submit to blood alcohol testing?
CONCLUSION. Nothing in Washington's implied consent statute imposes a mandatory duty on law enforcement personnel to offer a breath test to all persons accused of driving while under the influence.
At all times pertinent herein, RCW 46.20.308 provided in relevant part:
(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcoholic content of his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor.
(2) The test or tests of breath shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor.... The officer shall inform the person of his or her right to refuse the breath or blood test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver that (a) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test, and (b) that his or her refusal to take the test may be used against him or her in a subsequent criminal trial.
Additionally, at all times pertinent herein, RCW 46.61.502 stated in relevant part:
A person is guilty of driving while under the influence of intoxicating liquor or any drug if he drives a vehicle within this state while:
(1) He has 0.10 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of his breath, blood, or other bodily substance made under RCW 46.61.506 as now or hereafter amended; or
(2) He is under the influence of or affected by intoxicating liquor or any drug; or
(3) He is under the combined influence of or affected by intoxicating liquor and any drug.
Whether the tests described in the implied consent statute, RCW 46.20.308, are mandatory was undecided by any appellate court in this state until the recent Court of Appeals decision in State v. Woolbright, 57 Wash.App. 697, 789 P.2d 815 (1990). In Woolbright, the officer had been unable to locate a functioning BAC Verifier machine and the suspect did not request an independent test, though she had consented to a state-administered breath test. In Woolbright, the Court of Appeals held that the statutory scheme relative to breath tests cannot be interpreted as giving a DWI suspect a right to a breath test administered by or under the supervision of the arresting officer. The court further held that such tests are not necessary nor required to prove intoxication. Woolbright reasoned that although the State has a duty to preserve material evidence, it does not have to seek out exculpatory evidence or conduct tests to exonerate a defendant. Woolbright concluded that the implied consent statute does not require a DWI suspect to be given a breath test, but merely provides that a driver is deemed to have given consent and establishes certain guidelines for testing in the event the test is utilized. We agree with the result and reasoning in Woolbright.
Woolbright is also in accord with the vast weight of authority in other jurisdictions. Nationally, case law holding that implied consent statutes do not impose a duty on law enforcement to offer breath or blood tests has been remarkably consistent over several decades. 3
In the present case, the driver criticizes Woolbright for failing to discuss the "minority rule as set forth in State v. Lund, 475 A.2d 1055 (Vt.1984)," and argues that we should adopt the Lund court's rationale. In point of fact, Lund was soundly overruled in State v. Begins, 148 Vt. 186, 531 A.2d 595 (1987) by the court that handed it down in the first place. The Vermont Supreme Court overruled its Lund opinion in Begins, holding that police are not required to offer DWI suspects a breath or blood test as a precondition for prosecution. The Begins court held that the primary purpose of the legislature in authorizing breath and blood tests was to make available to law enforcement an alternative aid to detecting the extent of alcohol impairment of persons suspected of driving while intoxicated and did not bar prosecutions based upon other evidence of intoxication.
Language in prior Washington cases regarding the implied consent statute lends support to the Court of Appeals conclusion in Woolbright. In Blaine v. Suess, 93 Wash.2d 722, 728, 612 P.2d 789 (1980), we stated that "[w]hile the law enforcement authorities have no duty to volunteer to arrange for testing, they must not thwart an accused's attempts to make such arrangements."
We also recently listed the following four rights which DWI suspects must be advised of:
(1) "you have the right to refuse the breath or blood test;" (2) "if you refuse to submit to the test your privilege to drive will be revoked or denied;" (3) "your refusal to take the test may be used in a criminal trial;" and (4) "if you take the breath or blood test, you have the right to additional tests administered by any qualified person of your own choosing."
State v. Bartels, 112 Wash.2d 882, 886, 774 P.2d 1183 (1989). None of these rights suggest a further right to have the State administer a test should it choose not to do so.
The driver argues that the language in RCW 46.20.308(2), that "[t]he test ... of breath shall be administered at the direction of a law enforcement officer", imposes a mandatory duty on police to offer the test to everyone accused of driving while intoxicated. The West Virginia Supreme Court in Albrecht v. State, 314 S.E.2d 859, 863 (W.Va.1984), addressed this same contention, declaring that
we disagree ... that the language stating that a chemical test "shall be administered at the direction of the arresting law-enforcement officer" means that such a test is mandatory. All this phrase means is that if a chemical test is given, it has to be administered at the direction of the arresting officer.
We agree with this statement; the statutory language quoted above merely designates under whose direction the breath tests by police shall be administered. 4
Given the statutory scheme in Washington for apprehending and punishing persons who drive while under the influence, it would be unreasonable to construe the implied consent statute as mandating breath or blood tests. The 1986 version of RCW 46.61.502, 5 pertinent herein, allowed the State to convict if the person drives either while that person:
has 0.10 grams or more of alcohol ... as shown by analysis of his breath, blood, ...
RCW 46.61.502(1); or when the person
is under the influence of or affected by intoxicating liquor or any drug; ...
RCW 46.61.502(2); or when the person
is under the combined influence of or affected by intoxicating liquor and any drug.
RCW 46.61.502(3). 6
Recently, we have also directly held that this statute (RCW 46.61.502) sets out alternative means of committing the crime of driving while under the influence. 7
In short, under our state statutes, demonstrating that a person failed a breath or blood test is but one of several methods of showing that a person has been driving...
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