En Banc. Dore, J. Callow, C.j., and Brachtenbach, Dolliver, Durham, and Guy, JJ., concur. Andersen, J., concurs in the result only; Utter and Smith, JJ., dissent by separate opinion.
Michael Walter Schulze appeals his conviction on one count of vehicular homicide.*fn1 We affirm.
Schulze raises several issues regarding the blood test mandated by RCW 46.20.308(3) when a driver is suspected of committing vehicular homicide while under the influence of or affected by intoxicating alcohol or drugs. These include: (1) whether Schulze had a CrR 3.1 or Const. art. 1, § 22 (amend. 10) right to counsel before submitting to the mandatory blood test; (2) whether RCW 46.20.308(3) permitted the testing of Schulze's blood for drugs; (3) whether the "special evidence warning" given to Schulze required suppression of the blood test results; and (4) whether the state toxicologist complied with his duty to approve methods for blood alcohol testing under RCW 46.61.506(3).
On August 15, 1987, approximately 1 mile north of Forks, Schulze's vehicle crossed the center line of Highway 101 and collided with a pickup truck driven by Gordon Kopseng. The collision occurred sometime between 9:30 and 9:50 p.m. Mr. Kopseng died at the scene of the collision. There were no witnesses to the collision other than Schulze's passengers: his girl friend, Allison Black, and his son, Matthew Schulze.
The Forks Police Department received a call about the collision at approximately 9:51 p.m. Officers Vern Johnson
and Granville Jack Rice of the Forks Police Department, and Deputy Randy Pieper of the Clallam County Sheriff's Department responded to the collision within 5 minutes of the call. Trooper David Sue of the Washington State Patrol arrived at the scene within an hour. In the Schulze vehicle they found open bottles of Kahlua, George Dickel, and Budweiser.
Sergeant Rice transported Schulze to Forks Community Hospital to be examined. In the emergency room waiting area, at 11:14 p.m., Rice read Schulze his Miranda rights. Troopers Richard Helpenstell and Willie Johnson of the Washington State Patrol arrived at the hospital, and Trooper Helpenstell again read Schulze his Miranda rights at 11:20 p.m. It was not until 11:23 p.m. that Schulze was formally placed under arrest for vehicular homicide by Trooper Helpenstell.
Following the arrest, Trooper Helpenstell gave Schulze the "special evidence warning," which informed Schulze a blood test could be taken without his consent and he had the right to additional tests at his choice and expense. Schulze refused to sign the acknowledgment of the special evidence warning and refused to consent to the blood test. Schulze stated, "'I don't think that's right. I want my lawyer from Seattle.'" Report of Proceedings, at 73, 74 (Jan. 26, 1988). Schulze was defiant about refusing to allow the officers to take his blood. The blood draw was made at approximately 11:45 p.m., without Schulze's consent, but without physical resistance.
Schulze was taken to the Forks Police Department at approximately 1 a.m and was allowed to contact his attorney. The blood sample taken from Schulze was analyzed and found to contain .05 percent blood alcohol. The sample also contained diazepam, the active ingredient of valium, in the quantity of 1.23 milligrams per liter and nordiazepam, the metabolite of diazepam, in the quantity of .52 milligrams per liter.
Several witnesses to Schulze's behavior at the scene of the collision testified at his trial that Schulze had appeared
to be under the influence of some type of intoxicant. Officer Johnson testified that Schulze appeared to be "under the influence of something." Report of Proceedings, at 15, 18 (July 13, 1988). Sergeant Rice testified that Schulze "was affected by something," but he "couldn't say what." Report of Proceedings, at 52-53. Deputy Pieper testified Schulze's eyes were glassy and that he observed a "slight pallor to his skin." Report of Proceedings, at 301, 311. Deputy Pieper also testified that he smelled the odor of intoxicants on Schulze.
Members of the Anderson family, who live near the scene of the collision, arrived at the scene after hearing the crash. Mr. Anderson testified that, although Schulze "didn't seem slopping drunk", he did seem "spaced out." Report of Proceedings, at 138-55. Mrs. Anderson testified she believed Schulze was intoxicated or on drugs.
John Anderson knew Schulze throughout their school years. He denied to Trooper Sue that Schulze was drunk at the scene. Another friend of Schulze, Tammi Scott, who was present at the hospital, testified that Schulze was not falling down or sloppy drunk. Schulze claimed he was not drunk but had fallen asleep or passed out at the wheel.
Some significant facts of this case deserve special attention. Schulze was not formally arrested until he was at the hospital at 11:23 p.m., approximately 1 1/2 hours after the collision. He had been at the scene of the collision for at least 1 hour. During this time he was conscious, not under arrest, and had his girl friend, his son, and a school friend with him. He and his friends had full access to both vehicles and the ability to investigate the gouge marks left in the road or any other relevant evidence. However, he did not attempt to gather exculpatory evidence on his own nor did he call an attorney to come to the scene to conduct an investigation.
Before his formal arrest, Schulze was read his Miranda rights and, at that time, waived his right to an attorney by not requesting one. It was not until the second time he was
read his rights, at 11:23 p.m., that Schulze asked for his attorney in Seattle.
Schulze was convicted by a jury of one count of vehicular homicide on July 22, 1988, and he now appeals this conviction.
Several statutes are relevant to Schulze's appeal. The first is the vehicular homicide statute, RCW 46.61.520. This statute provides that the crime of vehicular homicide is committed:
When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person  while under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, or  by the operation of any vehicle in a reckless manner or  with disregard for the safety of others . . . .
RCW 46.61.502 defines the crime of driving while under the influence. At the time of the collision in this case, the crime could be committed by driving while:
(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
(2) The person has 0.10 percent or more by weight of alcohol in the person's blood as shown by analysis of the person's blood made under RCW 46.61.506; or
(3) The person is under the influence of or affected by intoxicating liquor or any drug; or
(4) The person is under the combined influence of or affected by intoxicating liquor and any drug.
RCW 46.20.308 is the "implied consent law" and is central to this appeal. It provides in relevant part:
(1) Any person who operates a motor vehicle within this state is deemed to have given consent, . . . 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.
(2) . . . 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 ...