State v. Woolbright

Decision Date30 April 1990
Docket NumberNo. 23955-4-I,23955-4-I
Citation57 Wn.App. 697,789 P.2d 815
PartiesSTATE of Washington, Respondent, v. Jeaneane WOOLBRIGHT, Petitioner.
CourtWashington Court of Appeals

Albert A. Rinaldi, Seattle, for Jeaneane Woolbright.

Pamela Mohr, David Bruce, Deputy King County Prosecutors, Seattle, for State.

SCHOLFIELD, Judge.

The defendant, Jeaneane L. Woolbright, seeks discretionary review of a superior court "Decision on RALJ Appeal" that reversed the Seattle District Court's dismissal of her driving while intoxicated charge. We affirm.

FACTS

On January 29, 1988, at approximately 2:20 a.m., Washington State Trooper R.A. Cooper observed Woolbright's vehicle, stopped her, and subsequently arrested her for DWI. Because it was raining very hard at the time of the arrest, Woolbright declined to perform field sobriety tests on the street. Woolbright was then taken to the Seattle police station located at Northgate. She was read her Miranda rights at 2:52 a.m. and her Initiative 242 warnings at 3 a.m. In particular, she was told:

You are under arrest for driving a motor vehicle under the influence of intoxicating liquor. Further, you are now being asked to submit to a test of your breath which consists of two separate samples of your breath, taken independently, to Woolbright indicated that she understood the implied consent warnings, signed a form indicating that she read and understood the warnings, and agreed to take the breath test.

                determine alcohol content.   You are now advised that you have the right to refuse the breath test.   That if you refuse your privilege to drive will be revoked or denied by the Department of Licensing.   You have the right to additional tests administered by a qualified person of your own choosing and at your own expense, and that your refusal to take the test may be used in a criminal trial
                

Shortly thereafter, the trooper found that the breath testing machine (the BAC verifier machine) at the Seattle police station at the Northgate office was defective. The trooper then advised Woolbright she was going to the University of Washington police station for the breath test. After arriving at the University of Washington police station and after completing some forms, the trooper went to use the BAC verifier machine at that location and found that it was in for servicing and no one had told the state patrol that it had been removed.

The trooper testified that there were other BAC verifier machines located at the King County police station in Kenmore and at the Seattle police station located in the Public Safety Building in Seattle. He indicated that it was approximately 3:30-3:40 a.m. when he learned that the machine at the University of Washington police department was gone.

The trooper indicated that he did not attempt to locate another machine at that time because Woolbright had been in his custody for a lengthy amount of time, she had been very cooperative, and he saw no necessity for transporting her to another police station and possibly running into the same problems on a third attempt. Woolbright did not at any time indicate a desire to have an independent test of her own choosing performed.

Woolbright filed a motion in the district court to dismiss for failure of the officer to take her to a working BAC verifier machine and complete a valid BAC verifier breath test The State filed a notice of appeal on July 22, 1988, to King County Superior Court. On March 17, 1989, the superior court entered an order reversing the trial court, concluding that the failure to provide a BAC test did not violate due process or constitute government misconduct or arbitrary action.

                since he had already invoked Initiative 242 and Woolbright agreed to submit to the test.   On June 10, 1988, a testimonial hearing on this motion occurred.   On July 15, the district court entered its oral decision dismissing the charge of DWI against Woolbright for failure of the State to administer a breath test.   The trial court stated that the breath test could have been favorable to Woolbright
                

In its decision of March 17, 1989, the court indicated:

While the respondent knew she had a right to an independent test administered by a qualified person of her own choosing and at her own expense there is no indication she attempted to exercise that right. She did not have a right under the circumstances to require the State to give her a breathal[y]zer test (BAC) and therefore no governmental misconduct was involved.

On March 20, 1989, Woolbright filed a motion and affidavit for reconsideration in the King County Superior Court. On April 13, 1989, the superior court affirmed the March 17, 1989 order reversing the district court.

On April 28, 1989, Woolbright filed a motion for discretionary review by this court of the superior court's reversal of the district court's decision. On June 6, 1989, this motion was granted.

RIGHT TO A BREATHALYZER TEST

Woolbright argues that she had a right to a breath test administered by the arresting officer once she was placed under arrest, the implied consent law (RCW 46.20.308) was invoked, and she agreed to take a breath test.

RCW 46.20.308, the implied consent law, provides in part as follows:

(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.

RCW 46.61.502 provides what constitutes driving while under the influence of intoxicating liquor in pertinent part as follows:

A person is guilty of driving while under the influence of intoxicating liquor or any drug if ...

(1) The person has 0.10 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of the person's breath made under RCW 46.61.506; or

. . . . .

(3) The person is under the influence of or affected by intoxicating liquor or any drug ...

The statutory scheme in Washington relative to breath tests contains no language that can reasonably be interpreted as giving a suspect a right to a breath test to be administered by the arresting officer or under his supervision. The statutory scheme does give a suspect the right to an independent breath test, 1 and Woolbright was advised of that right and could have exercised it in this case. She did not do so.

Furthermore, chemical tests are neither necessary nor required to prove intoxication. People v. Culp, 189 Colo. 76, 537 P.2d 746, 748 (1975). Generally, the giving of a chemical test for intoxication is not mandatory, and the failure to administer such test does not constitute a denial of due process. 7A Am.Jur.2d Automobiles & Highway Traffic § 305, at 494 (1980) (citing Kettering v. Baker, 42 Ohio St.2d 351, 71 Ohio Op.2d 322, 328 N.E.2d 805 (1975)).

The State has a duty to preserve material evidence for a defendant; however, this duty is limited. Investigating officers are not required to seek out exculpatory evidence or conduct tests to exonerate a defendant. State v. Judge, 100 Wash.2d 706, 716-17, 675 P.2d 219 (1984).

Although no Washington case specifically addresses the issue, cases from other jurisdictions with similar statutory schemes unanimously hold that implied consent statutes do not make mandatory the administration of the chemical tests provided for therein nor entitle anyone to the administration of the tests by the city or any arresting officer. 95 A.L.R.3d 710 (1979); Kettering v. Baker, 328 N.E.2d at 807; State v. Reyna, 92 Idaho 669, 448 P.2d 762, 766 (1968); People v. Culp, supra, 537 P.2d at 748; People v. Hedrick, 192 Colo. 37, 557 P.2d 378, 379 (1976); State v. Barry, 183 Kan. 792, 332 P.2d 549, 554 (1958); Hammer v. Jackson, 524 P.2d 884, 887 (Wyo.1974).

In Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986), a motorist was charged with driving under the influence of intoxicating liquor. Because South Tucson, where the defendant was arrested, had no functioning equipment with which to perform chemical tests for intoxication, the defendant was not required to submit to any test, although the officer could have made such a demand pursuant to Arizona's implied consent statute. The defendant did not request that any test be done, nor did the officer inform him that he had a right to an independent test. Montano v. Superior Court, 719 P.2d at 272. The defendant moved to dismiss, claiming that the implied consent law obligates, rather than permits, police departments to request tests of breath, blood, or urine of DWI suspects. This motion was denied. Montano v. Superior Court, 719 P.2d at 272. On review, the court found that the statute allows, but does not require, chemical testing of defendants.

The "spirit and reason" of the implied consent statute "is to remove drunk drivers from the state's highways, not to provide a shield for a drunk driver...." State v. Waicelunas, 138 Ariz. 16, 20, 672 P.2d 968, 972 (App.1983). The statute was enacted as an aid to law enforcement agencies, and it would be ironic indeed if the sword offered to law enforcement in our battle against the appalling consequences of drunk driving were transformed into "a shield for a drunk driver."

Montano v. Superior Court, 719 P.2d at 273.

In Kettering v. Baker, supra, Baker was convicted of operating a motor vehicle while under the influence of alcohol. When transported to the county jail, he was advised that he could, at his own expense and on his own time, have the Breathalyzer or a blood analysis taken. Baker did not request any test. The city did not perform either of these procedures. Kettering v. Baker, 328 N.E.2d at 806. Baker moved to dismiss...

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