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Town of Clyde Hill v. Rodriguez5/26/1992
and in Bartels demonstrates that the Legislature intended that one or the other type of test be mentioned, not both.
This court has said that "' hen the term "or" is used [in a statute] it is presumed to be used in the disjunctive sense, unless the legislative intent is clearly contrary.'" Childers v. Childers, 89 Wash. 2d 592, 595, 575 P.2d 201 (1978). Further, "'or' does not mean 'and'". Childers, at 598.
(Citations omitted.) In re Blauvelt, 115 Wash. 2d 735, 743, 801 P.2d 235 (1990). Had the Legislature intended to direct law enforcement officers to mention both tests, it could easily have used "and" rather than "or". Third, the statute requires that a breath, not blood, test be given unless the suspect is unconscious or is under arrest for injury to another. RCW 46.20.308(3). It would therefore be confusing
to a suspect in Rodriguez' position to be told he had a right to refuse a breath or blood test when it is clear that he can legally be asked only to submit to a breath test. The additional words do nothing to clarify his rights or enlighten his decision. Finally, the Bartels court was neither asked nor did it decide whether the implied consent warning should include any statement about the types of tests a driver could take if he or she wished to contest the accuracy of the test given at the time of arrest. Thus, the language on which Rodriguez relies must be read to require only that the police shall inform the driver that he or she has a right to refuse the type of test the police actually intend to administer. It would be both confusing and unavailing to do otherwise.
Moreover, any specification by law enforcement of the type of tests which may be available to the driver would in itself be potentially inaccurate or misleading. It is not clear what other tests, if any, can be used at trial. For example, RCW 46.61.506 does not provide that other tests, such as a urine test, may be admitted as evidence that the driver was intoxicated. But, as respondent's counsel pointed out at oral argument, this does not necessarily foreclose the use of such tests by the defense for impeachment purposes. Therefore, specification of only blood and breath tests in the warning could mislead the driver into assuming that tests of other bodily substances may not be used to impeach the test obtained by the officer.
The Bartels court made the following observation in ruling that adding the words "at your own expense" is misleading to indigent drivers:
hether the warning can be abstractly characterized as "accurate" is irrelevant. Informing an indigent driver that additional tests will definitely and finally be "at your own expense" is less accurate than saying nothing on that proposition.
112 Wash. 2d at 888. The same reasoning applies here. While it is accurate in the abstract to refer to "breath or blood" tests in informing a driver of what kinds of tests are available, inclusion of this language in the warning might well give the
impression that these are the only tests the arrestee may use to impeach the State's test. This "is less accurate than saying nothing on that proposition." 112 Wash. 2d at 888.
The better practice is for law enforcement to inform drivers in general language, such as that used here and in the statute, of the availability of additional testing. Such wording is sufficient to apprise them that they may seek other tests. This approach follows that of the Supreme Court in State v. Richardson, <
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