(concurring) — I concur with the majority’s holding that Crediford’s conviction must be reversed. However, since the majority goes beyond what is necessary to decide the case by way of dicta, I write separately to state my divergent views.
I agree that the Legislature may, pursuant to its police powers, prohibit drunk driving. However, subsections (l)(a) and (b) of RCW 46.61.502, as construed by the majority, do not prohibit drunk driving. Instead subsections (l)(a) and *762(b) outlaw being drunk at the time of a test sometime after driving and make irrelevant the critical question: was the driver impaired when he was driving? Inconsistently, subsections 1(c) and (d) make it a crime to drive when under the influence, regardless of when, or even if, a test is performed. The relevant portion of this statute provides:
(1) A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state:
(a) And the person has 0.10 grams or more of alcohol per two hundred ten liters of breath within two hours after driving, as shown by analysis of the person’s breath made under RCW 46.61.506; or
(b) And the person has 0.10 percent or more by weight of alcohol in the person’s blood within two hours after driving, as shown by analysis of the person’s blood made under RCW 46.61.506; or
(c) While the person is under the influence of or affected by intoxicating liquor or any drug; or
(d) While the person is under the combined influence of or affected by intoxicating liquor and any drug.
(3) It is an affirmative defense to a violation of subsection (l)(a) and (b) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person’s breath or blood to cause the defendant’s alcohol concentration to be 0.10 or more within two hours after driving. . . .
RCW 46.61.502 (emphasis added) (amended by Laws of 1994, ch. 275, § 2).
The ultimate problem is that this statute: (1) is not rationally related to the State’s legitimate purpose of curtailing drunk driving; (2) does not define the proscribed conduct with sufficient definiteness to avoid unconstitutional vagueness; (3) punishes both legal and illegal activity and is therefore unconstitutional for overbreadth; and *763(4) unconstitutionally relieves the prosecution of proving every element of the offense beyond a reasonable doubt.
The majority seems to operate under the influence of a driving desire to uphold this statute. In doing so, it rewrites the offense, strikes part of the statute, and then engrafts an additional element. Although this is a DUI statute, it is nevertheless a criminal statute and the same constitutional rules which we apply to every other criminal statute must equally apply here as well. This is not to say we should yield to the legitimate public passion to get drunks off the road at the expense of constitutional mandates.
The statute clearly is intended to proscribe driving while intoxicated. Its text reads "A person is guilty of driving while under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state . . .,” RCW 46.61.502(1), and at least in part it criminalizes just that—see RCW 46.61.502(l)(c) and (d). The purpose of this statute is to proscribe driving while under the influence of alcohol and/or drugs. The majority agrees: "[I]t seems clear to us that the 'evil’ that the Legislature was intending to correct by enacting RCW 46.61.502(1) is 'driving while under the influence of intoxicating liquor or any drug.’ ” Majority op. at 754.
However, because of the alleged practical evidentiary difficulty of establishing that the driver was under the influence while driving, the Legislature amended the statute to allow the State to show that the driver was under the influence at any time within two hours after driving, which it equates in criminal consequence with being under the influence while driving. The overall legislative intent was to proscribe driving while drunk, and this statute passed to make easy prosecutions even easier.7 While the *764goal of making convictions easier to obtain may be good for prosecutors, it is not permissible if it short-circuits constitutional due process.
This year the deficiencies of an almost identical statute were summarized by the highest court of Pennsylvania in a unanimous opinion. Rather than revising the statute’s text or ignoring its language, the court simply acknowledged its deficiencies and struck it down. Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162 (1996). I would adopt that approach because it is analytically correct. However, our majority chooses to politely disagree with the Barud case ("[W]e respectfully disagree with the Pennsylvania Supreme Court [in Barud\”). Majority op. at 758 n.4.) I disagree on this point and would follow Barud because it is persuasive.
While the majority begins by noting that the Legislature intended to proscribe driving while drunk, it sustains parts of the statute which appear to make the drunkenness of the driver at the time of driving totally irrelevant. The majority reads the statutory text which unambiguously proscribes "driving while under the influence” (RCW 46.61.502(1)) but holds that the statute in fact means something quite different, i.e., being drunk at the exact time of the test if the test is administered within two hours of driving. Majority op. at 755-56. If this is a correct reading of subsections 1(a) and (b), the majority renders irrelevant the only rational basis of the statute: prohibiting drunk driving. I disagree with the majority’s construction of the statute and disagree that it is constitutional if the majority is right about the proper construction.
The majority’s statutory construction violates nearly every canon of statutory interpretation. See In re Cross, 99 Wn.2d 373, 382, 662 P.2d 828 (1983) (statutes are to be interpreted in a manner consistent with their underlying purpose); see also State v. Stannard, 109 Wn.2d 29, 36, 742 P.2d 1244 (1987) (when interpreting a statute, absurd or strained results are to be avoided).
*765 RCW 46.61.502 exceeds the Legislature’s police power
The Legislature may enact a law pursuant to its so-called "police power” only if such law "(1) tends to correct some evil or promote some interest of the State, and (2) bears a reasonable and substantial relationship to accomplishing its purpose.” State v. Brayman, 110 Wn.2d 183, 193, 751 P.2d 294 (1988). For example, in State v. Spino, 61 Wn.2d 246, 250, 377 P.2d 868 (1963) we struck down as unconstitutional a second degree arson statute which criminalized the burning of any building without requiring that the burning be intentionally harmful. We struck down the statute because it made possible the punishment of acts which bore no reasonable relation to the harm sought to be prevented, the intentional harmful burning of a building. Similarly, in City of Seattle v. Pullman, 82 Wn.2d 794, 800, 514 P.2d 1059 (1973) we struck down a statute outlawing loitering by minors as an unconstitutional use of the Legislature’s police power because "it bears no real or substantial relationship to the proclaimed governmental interest—the protection of minors.” This statute flunks the police power test in the same way.
If we believe the majority, the State’s "interest” to be promoted is to curtail drunk driving. Majority op. at 754. However, the text of RCW 46.61.502(l)(a) and (b) is construed to criminalize drunkenness at the time one takes the test, but not necessarily when one drives. In effect the statute was passed to cut off the logical and scientifically correct defense argument that the blood alcohol content in every person fluctuates within certain norms after consumption—for a short time it goes up, peaks, and then declines slowly. Except by sheer coincidence, the BAC reading while driving will always be different from any subsequent test result. But simply being drunk after driving is not a criminal act. See majority op. at 754. However, postdriving drunkenness bears neither a substantial nor a necessary relationship to the accepted goal of prohibiting driving while drunk. Because the stat*766ute is not necessarily related to accomplishing its purpose, it exceeds the Legislature’s police power and is unconstitutional.
RCW 46.61.502 is void for vagueness
Due process requires that citizens have fair warning of what activity is criminally prohibited so they may plan their activity accordingly and freely enjoy those activities which are not expressly illegal. Bouie v. City of Columbia, 378 U.S. 347, 350, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964). A criminal statute is void for vagueness if it fails to define the criminal activity with sufficient definiteness to apprise common citizens of what is a crime. Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); Myrick v. Board of Pierce County Comm’rs, 102 Wn.2d 698, 707-08, 687 P.2d 1152 (1984) (statute requiring massage therapists to be "fully clothed” was void for vagueness because it failed to give fair warning of what manner of dress will run afoul of the law).
Under the majority interpretation of RCW 46.61.502, the statute is unconstitutionally vague because the average citizen cannot know what activity is illegal. Is it illegal to drive with a .00 BAC even if one’s BAC may rise to a .10 two hours after driving? The same driver tested at roadside would be acquitted, whereas if he were tested later, he might be convicted. If he were never tested, the issue would be: was he, in fact, under the influence when driving? Subsections 1(c) and (d). The Pennsylvania Supreme Court held that an identical statute creates "significant confusion as to exactly what level of alcohol in the blood is prohibited” and does not provide the constitutionally required "reasonable standard by which an ordinary person may contemplate their future conduct.” Barud, 681 A.2d at 166. Our statute is no better.
RCW46.61.502 is unconstitutionally overbroad
A statute is overbroad if it sweeps so broadly that it punishes activity which is otherwise permissible. City of *767Tacoma v. Luvene, 118 Wn.2d 826, 827 P.2d 1374 (1992). Also see generally Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853 (1990-1991). The over-breadth doctrine has been termed "strong medicine;” however, the elixir the majority applies does not cure this disease. O’Day v. King County, 109 Wn.2d 796, 804, 749 P.2d 142 (1988). Strong medicine is sometimes required to protect our constitutional rights. Activity which is not illegal may not be punished. Thus, by opening the door to punishment for being under the influence of alcohol after driving, the sweep of RCW 46.61.502 is overbroad. If the same person tested while driving or shortly after driving blew less than a 0.10, he would not have violated the statute, although if the police wait a sufficient time, the reading could increase and he would have violated the statute. But the facts are the same, only the time of testing has changed. See Barud, 681 A.2d at 166 ("[T]he statute sweeps unnecessarily broadly into activity which has not been declared unlawful in this Commonwealth, that is, operating a motor vehicle with a BAC below .10%.”).
RCW46.61.502 unconstitutionally relieves the State of proving an element of the crime
As the majority holds, RCW 46.61.502(3) unconstitutionally shifts the burden to the defendant to show that he consumed the alcohol after driving. Majority op. at 760 (this shift of burden "flies in the face of the well-established principle that every person accused of a crime is constitutionally endowed with an overriding presumption of innocence . . .”). The majority so holds because the statute relieves the State of proving "every element of its case beyond a reasonable doubt.” Id. at 760 (citations omitted).
I agree entirely and think that the majority is right on point. In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (state must prove every element beyond a reasonable doubt); State v. Lively, 130 Wn.2d 1, 11, 921 P.2d 1035 (1996). Every accused is endowed with an overriding presumption of innocence which extends to *768every element of the crime. Morissette v. United States, 342 U.S. 246, 275, 72 S. Ct. 240, 96 L. Ed. 288 (1952); State v. McHenry, 88 Wn.2d 211, 558 P.2d 188 (1977). Any attempt to relieve the State of its burden to prove every element of the crime is a deprivation of the accused’s liberty without due process of law. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); State v. Summers, 120 Wn.2d 801, 817, 846 P.2d 490 (1993).
However, the majority’s remedy falls short. The majority’s solution addresses only the element of whether the accused consumed the alcohol after driving. It still relieves the State of its burden to prove the quintessential element of a DUI case, namely that the driver was drunk while driving (by test or observation or both). The State is now allowed to get a conviction for driving while under the influence without proving that the accused was under the influence while driving. This violates due process and common sense.
In McLean v. Moran, 963 F.2d 1306, 1310 (9th Cir. 1992), the United States Court of Appeals for the Ninth Circuit held a Nevada statute similar to RCW 46.61.502 unconstitutional because it allowed the state to prove its case by showing that the defendant had a particular BAC level at the time of testing after driving and then allowed a "conclusive presumption” that the accused’s BAC level was the same at the time of testing as at the earlier time of driving. The Ninth Circuit reasoned:
Most experts agree that it ordinarily takes forty-five to ninety minutes to attain a peak BAC level on an empty stomach, and two to three hours if alcohol is consumed with or after a meal, while a few contend that the time lag between alcohol consumption and absorption into the blood stream is even longer.
McLean, 963 F.2d at 1309-10.
The Pennsylvania high court is in complete accord: "[T]he most glaring deficiency of § 3731(a)(5) is that the statute completely fails to require any proof that the ac*769cused’s blood alcohol level actually exceeded the legal limit at the time of driving.” Barud, 681 A.2d at 166. Our statute has the same deficiency. This statute is facially unconstitutional and I would so hold.
Johnson and Madsen, JJ., concur with Sanders, J.
One of the bill’s sponsors, Senator Adam Smith, informed the Senate before passage that "This bill is going to be one the prosecutors wanted and will be helpful in some prosecutions on DWI offenses to deal with the blood alcohol test taken within two hours of the arrest is accurate for the time of arrest.” Clerk’s Papers (CP) at 27.