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Town of Clyde Hill v. Rodriguez5/26/1992
senting)
The Town of Clyde Hill's warning neither follows the statute literally nor does it convey the significant information that the driver is entitled to secure a blood test. Therefore, I dissent. While the portion of RCW 46.20.308(2) dealing with the duty to inform is awkwardly phrased, it is this court's responsibility to interpret it to achieve its purposes with due respect to the language used.
The applicable portion of the statute reads:
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.
RCW 46.20.308(2). Rather than using the language of RCW 46.20.308, the Town chose to incorporate language from RCW 46.61.506(5):
The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer. . . .
Thus, the Town's warning is an amalgamation of the statutes and reads:
You further have the right to take one or more tests administered by a physician, or a qualified technician, chemist, registered nurse, or other qualified person of your choosing.
I agree with the majority that the difference between "one or more" and "additional" is insignificant. Unfortunately, neither wording is very helpful to the driver.
Previous cases which have grappled with the informed consent statute suggest that the exact language of the statute is most desirable. In my view, however, the warning should go beyond the words of the statute and the driver should be explicitly informed that he may procure an additional breath test or a blood test. This is his right. RCW 46.20.308 requires that he be informed of this right. The warning at issue here is completely ineffectual in informing him of the scope of this right.
The inadequacy of the warning is particularly harmful considering that the right to acquire other tests which may impeach the State's test is one of the constitutional linchpins which support the informed consent statute. There are
few rights more central to a fair trial than the right to obtain and present exculpatory evidence. Indeed, it is hard to imagine any evidence which would be more probative as to a driver's guilt or innocence than an independently obtained blood test which impeaches the State's breath test. Moreover, there is a very narrow window of opportunity in which such a test could be obtained. Thus, of the four warnings which RCW 46.20.308 mandates, the warning at issue here is by no means of secondary importance.
The majority concedes that the warning given to Rodriguez fails to fully apprise him of his right, but approves the warning nonetheless on the basis that Rodriguez could have asked for further information. While it is certainly true that a driver in Rodriguez's position can ask for further information, the majority presents no authority which requires the police to give further information. Nor is it clear what further information should be given. The majority states a preference that the suspect ask counsel for this information. In doing so, the majority has effectively delegated to defense counsel, assuming there is defense counsel, a duty which the Legislature has expressly placed on the State -- the duty to info
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