City of Blaine v. Suess , 22 Wash. App. 809 ( 1979 )

Williams, J.

Ernest Suess was arrested in Blaine, Washington, for driving while intoxicated. He was advised of his rights by the arresting officer and transported by county authorities to the county jail in Bellingham.

Suess was subsequently charged and convicted of driving a motor vehicle while under the influence of or aifected by intoxicating liquor. Suess moved to suppress evidence obtained from a Breathalyzer test and, after a guilty verdict was returned, moved for an order in arrest of judgment of a new trial. The motions were based on the contention that he was denied the right to attempt to procure a chemical test in addition to the Breathalyzer test administered by police. The motions were denied and Suess appeals.

Suess contends that the failure of the police to implement his requests for a blood test required suppression of the Breathalyzer evidence or dismissal of the charge for denial of due process.

RCW 46.20.308 (implied consent) provides that:

Such officer shall inform the person of his right to refuse the test, and of his right to have additional tests administered by any qualified person of his choosing as provided in RCW 46.61.506.

Suess was so advised.

At the station and on the drive to Bellingham from Blaine, Suess told the officers that he would like a blood test and asked the officers to drive him to one. There is evidence that while in Blaine, a city officer told him that the county van to be used to transport him to the county jail would go by St. Luke's Hospital in Bellingham for a blood test. The stop-off for a blood test did not materialize, and Suess contends that because he was not given such a test at St. Luke's, his right to have a test administered by a person of his choosing was violated. It was not.

The scheme of the implied consent statute is that the arresting authority will administer one test and the arrested person, if he chooses, may arrange for another. There is no requirement that the arresting authority make one test and then arrange for another if the arrested person is dissatisfied with the result of the first one. The accused must act to protect his interests, and it is only when he is denied a reasonable opportunity to procure additional tests that he may claim a denial of due process. In re Koehne, 54 Cal. 2d 757, 356 P.2d 179, 8 Cal. Rptr. 435, 436 (1960). And see Smith v. Cada, 114 Ariz. 510, 562 P.2d 390, 394 (1977).

One of the purposes of the implied consent law is to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication. Nowell v. Department of Motor Vehicles, 83 Wn.2d 121, 516 P.2d 205 (1973), Greenwood v. Department of Motor Vehicles, 13 Wn. App. 624, 536 P.2d 644 (1975). Of course, Suess, in desiring a blood test by a qualified person of his choosing, hoped to prove his nonintoxication. He did have the right to have additional tests made, State v. Richardson, 81 Wn.2d 111, 499 P.2d 1264 (1972), but he did not exercise that right. He simply said that he wanted an additional test. The statute places no duty or burden upon police officers to select a qualified person for an additional test, or to arrange for it, or to pay for it. All of that was up to Suess, who did nothing. The officers did not deny him a reasonable opportunity to procure the additional tests, and his due process rights were not violated.

RCW 46.61.506(5) states that:

The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.

Suess' inability to obtain an additional test by a person of his choosing therefore does not call for the suppression of the test administered by the authorities.

Affirmed.

Swanson, J., concurs.