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Town of Clyde Hill v. Rodriguez5/26/1992
808, 817, 585 P.2d 1185 (1978), "the statutory requirement [that the defendant may obtain independent tests] demonstrates an important protection of the subject's right to fundamental fairness". If the warnings given are inadequate or misleading, evidence of the breath test must be suppressed. Bartels, 112 Wash. 2d at 889; Spokane v. Holmberg, 50 Wash. App. 317, 323-24, 745 P.2d 49 (1987), review denied sub nom. Box v. Grant Cy. Dist. Court, 110 Wash. 2d 1013 (1988).
With these principles in mind, we first address Rodriguez' contention that the following language from the Bartels
opinion sets forth a bright line rule mandating that these exact words must be used anytime the implied consent warning is given.
very DWI suspect must be advised of these four distinct rights: (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."
112 Wash. 2d at 886. Because the warning in this case does not conform precisely to this language, Rodriguez argues it is inadequate in that it (1) fails to mention the blood test in the appropriate places, and (2) uses the term "one or more" rather than "additional". For the reasons discussed below, we conclude that Bartels supports neither of Rodriguez' arguments.
Bartels involved six consolidated appeals. In each case, the driver had been arrested on suspicion of DWI. Each was given Miranda and implied consent warnings. Each agreed to take either a breath or blood test, and each test indicated the driver's blood contained an excessive amount of alcohol. As part of the implied consent warning, each driver was advised that he or she could seek additional tests "at your own expense". 112 Wash. 2d at 884. The issue before the court was whether these superfluous words misinformed indigent drivers, thus interfering with their opportunity to intelligently exercise their right to take other tests. The Supreme Court ruled that the phrase was inaccurate as to indigent drivers since, under the Washington Rules of Court, an indigent person is entitled to reimbursement for such tests. 112 Wash. 2d at 887.
Inclusion of the disputed clause in the warning thus interfered with an indigent driver's ability to make an informed judgment as to whether to take additional tests, requiring suppression of the results of their breath or blood tests. 112 Wash. 2d at 888-89.
While the court in Bartels used the phrase "breath or blood test" in its recitation of the warning, in so doing it was not mandating that both tests be mentioned every time the warning is given. Rather, it was simply encompassing the facts of the six cases before it in which both types of tests had been administered at the direction of the arresting officers. There are several reasons for this conclusion.
[1-3] First, the portion of the Bartels opinion and the implied consent statute upon which Rodriguez relies mentions both types of tests only in the context of the test that law enforcement will administer, not in the context of informing the driver of his right to take additional tests. Second, even if both types of tests were referred to in the context of taking additional tests, the use of the disjunctive "or" in the statute
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