En Banc. Andersen, J. Dore, C.j., Utter, Brachtenbach, Dolliver, Durham, Smith, and Guy, JJ., and Callow, J. Pro Tem., concur. Johnson, J., did not participate in the disposition of this case.
At issue in this case is whether the Superior Court erred in reversing an automobile driver's District Court conviction of driving while under the influence (DWI). We hold that the dismissal was improper, reverse the Superior Court and order that the District Court conviction be reinstated.
The driver, Donald H. Entzel, was arrested on December 27, 1986 for DWI and resisting arrest. He refused to cooperate with the officer's attempt to administer field sobriety tests. Other officers had to be called to the scene to assist in making the arrest.
At the time of the arrest, the officer did not offer to give a breath test nor did the driver request that he be permitted to obtain one. The arresting officer's report and testimony are to the effect that he did not attempt to obtain a Breathalyzer test because such an attempt would have been futile in view of the driver's behavior in resisting arrest.
Mr. Entzel, the driver, was tried before a Grant County jury and found guilty of driving while under the influence,*fn1 and of resisting arrest.*fn2
On appeal, the Superior Court affirmed the resisting arrest conviction but reversed the DWI conviction. This court granted the State's motion for discretionary review of the Superior Court order vacating and dismissing the District Court DWI conviction. The conviction for resisting arrest is not in issue.
The State's challenge is to the portion of the Superior Court order which held that absent exigent circumstances, the offer of a breath test is mandatory when a police officer takes a driver into custody having reasonable grounds to believe the driver is under the influence of alcohol.
Two issues are presented.
Issue One. Does Washington's implied consent statute, RCW 46.20.308, impose a mandatory duty on police officers to offer a breath test to all persons accused of driving while under the influence?
Issue Two. Even absent such a statutory duty, when the State elects not to invoke the implied consent statute by asking for a breath test, must it nonetheless advise a DWI suspect that he or she has a right to submit to blood alcohol testing?
Conclusion. Nothing in Washington's implied consent statute imposes a mandatory duty on law enforcement personnel to offer a breath test to all persons accused of driving while under the influence.
At all times pertinent herein, RCW 46.20.308 provided ...