En Banc. Dore, J. Callow, C.j., and Brachtenbach, Dolliver, Andersen, Durham, and Guy, JJ., concur. Utter and Smith, JJ., concur by separate opinion.
Patrick M. Curran appeals his convictions on two counts of vehicular homicide.*fn1 Curran raises numerous 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 the blood draw taken by medical personnel for medical purposes precluded a second blood draw pursuant to RCW 46.20.308(3); (2) whether blood alcohol evidence was admissible to prove vehicular homicide at the time of Curran's arrest; (3) whether the State met its burden of establishing Curran's blood sample and the test chemicals were free from adulteration; (4) whether Curran was entitled to a jury instruction on reckless driving; (5) whether the taking of the blood sample violated Const. art. 1, § 7; (6) whether the trial judge erred in sentencing Curran without considering the deaths of two people in the same vehicle as constituting the same criminal conduct; and (7) whether the taking of the mandatory blood test violated Curran's rights under Const. art. 1, § 7 and § 9. We affirm Curran's conviction but remand for resentencing.
Patrick M. Curran is 41 years old and has been a diabetic for 20 years. He receives insulin continuously throughout the day by means of an insulin infusion pump. At one time Curran experienced frequent low blood sugar episodes during which he would have "fuzziness of thinking, some confusion". Report of Proceedings, at 947. These episodes occurred without warning and when not corrected by the consumption of sugar caused Curran to lapse into a coma.
Dr. Paul Fredlund, who has been Curran's treating physician for 13 years, testified that the symptoms of low blood sugar and of intoxication can be identical. Since Curran began using the insulin pump in 1981, he has had two or three episodes of low blood sugar. These episodes were not foreseeable.
On June 3, 1987, Curran, who was employed as the municipal attorney for Silver Lake Water District, and four of his colleagues had lunch. These colleagues included two district commissioners, its general manager, and engineer. The five ate at a restaurant in Snohomish. One person left after lunch. The others, including Curran, remained until almost 5 p.m. Their credit tab for the afternoon showed a total of 52 drinks purchased. This included several drinks purchased for other bar patrons and excluded some paid for in cash.
Sherry Crawford was the bartender who served the group. At approximately 2:30 p.m., she noticed Curran staring at the olives in his drink and intently poking at them. Crawford testified that she then started serving him only water with olives. Crawford also testified that one of the group members told her to serve Curran water and Curran would never notice. The individual, Rod Keppler, denied giving this instruction to Crawford. Crawford further stated that Curran consumed four alcoholic beverages during the afternoon, all before 2:30 p.m. At approximately 5 p.m., Curran and the three remaining group members left the bar in Curran's car. As Curran approached Highway 9, another driver observed him swerve off the road, onto the gravel two or three times, and drive in excess of the speed limit. One mile from Highway 9, on Marshland Road, Curran encountered a 90-degree turn and drove his car off the road where it struck an embankment and flipped into a ditch. The collision killed two of Curran's passengers.
Trooper Grant Hulteen of the Washington State Patrol responded to the collision. After Trooper Hulteen smelled alcohol on Curran's breath, he arrested Curran at the scene for vehicular homicide. The treating paramedic, Kelly
Downs, took a blood sample which the trial court ruled was for medical purposes. The excess blood was turned over to the trooper at his request. The trooper first read Curran his Miranda rights and then the "special evidence warning", telling Curran he had the right to additional tests at his own expense. Downs then withdrew a second blood sample. This second blood draw was later tested at the State Toxicology Lab using gas chromatography. Two tests were conducted; the first yielded a result of .18 percent blood alcohol and the second, .17 percent. A driver is considered to be under the influence if his blood alcohol level is .10 percent or greater. Curran's was almost twice this limit.
At trial, Curran testified that his behavior on the afternoon of the collision was the result of a miscalculated insulin dosage which resulted in a low blood sugar state. He maintained the insulin overdose had caused a low blood sugar state. However, Curran's blood sugar level within one-half hour of the collision was much higher than normal.
Curran testified to remembering an occasion during the early afternoon when he was asked if he wanted another drink. He was not able to formulate an answer to the question. He was also unable to remember getting in his car or anything about the accident.
Trooper Hulteen testified that at the scene Curran's eyes were watery and bloodshot and there was a strong odor of intoxicants on his breath. Paramedic Downs testified that Curran did not seem completely oriented and was unable to say where he was or to recall events.
Dr. Fredlund testified that when he examined Curran 5 days after the collision, Curran told him his blood sugar at the time of the collision had been abnormally high and that his blood alcohol level had been measured at .20 percent. In response to Curran's high blood sugar reading, Fredlund testified that a diabetic can go from having a low blood sugar level to a high blood sugar level very quickly over a period of hours.
Curran was convicted by a jury on two counts of vehicular homicide. He was sentenced to 26 months in prison on each count to be served concurrently.
The statutory scheme governing the offense of vehicular homicide is set forth in State v. Schulze, 116 Wash. 2d 154, 804 P.2d 566 (1991), which we incorporate herein. The most pertinent statute is RCW 46.20.308, which 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 administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver that (a) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test, and (b) that his or her refusal to take the test may be used in a criminal trial.
(3) Except as provided in this section, the test administered shall be of the breath only. If an individual . . . is under arrest for the crime of vehicular homicide . . . a breath or blood test may be administered without the consent of the individual so arrested.