(dissenting)—I would reverse the conviction of resisting a lawful arrest, RCW 9A.76.040, because Mr. Hornaday was not lawfully taken into custody. Absent circumstances not present here, RCW 10.31.100 only authorizes a police officer to arrest a person without a warrant for committing a misdemeanor when the offense occurs in the officer's presence.2 The majority concludes Mr. Hornaday possessed or consumed liquor in the arresting officer's presence. RCW 66.44.270. Thus, the question narrows to whether the "appearance" of intoxication plus the odor of intoxication, without more, is "possession" or "consumption" within the meaning of the statute. If it is not, Mr. Hornaday's arrest was unlawful, and his conviction for resisting a "lawful" arrest must therefore fall.
Where the language of a penal statute is unambiguous, it must be construed with its "obvious meaning." In such cases, "there is no room for judicial interpretation." State v. Green, 91 Wn.2d 431, 441, 588 P.2d 1370 (1979). Fundamental fairness precludes "possible but strained interpretation [s]”, and proper judicial restraint mandates "a literal and strict interpretation" of criminal statutes. State v. Bell, 83 Wn.2d 383, 388, 518 P.2d 696 (1974).
According to Webster's Third New International Dictionary 490 (1969), "consume" means "to destroy", as with fire, or "to use up" as in spending wastefully or squander*436ing, or "to eat or drink". Other definitions refer to full absorption, as with attention or energy, and to wasting away. RCW 66.04.010(6) defines "consume" to "[include] the putting of liquor to any use, whether by drinking or otherwise."
The language, "possession of intoxicating liquor" is "clear, plain and unambiguous," State v. Johnson, 129 Wash. 62, 66, 224 P. 602 (1924), and includes constructive as well as actual possession. Constructive possession of liquor denotes control of the substance. State v. Bostock, 147 Wash. 402, 404, 266 P. 173 (1928); accord, State v. Davis, 16 Wn. App. 657, 659, 558 P.2d 263 (1977) (constructive possession of marijuana requires a showing of dominion and control of the premises).
However, in Nethercutt v. Commonwealth, 241 Ky. 47, 43 S.W.2d 330 (1931), the court held, as a matter of law, that liquor in one's stomach does not constitute possession of intoxicating liquor. See also Franklin v. State, 8 Md. App. 134, 258 A.2d 767, 769 (1969) (once a narcotic drug is injected into the vein, or swallowed orally, it is "apparent" it is no longer in the individual's control for purposes of unlawful possession); State v. Downes, 31 Or. App. 1183, 1186, 572 P.2d 1328, 1330 (1977) ("Obviously, after a drug is ingested or injected into the human body, the host body can no longer exercise dominion or control over it." (italics mine)). Consequently, it takes a strained interpretation of the statutory language to say an officer observed possession of liquor by merely seeing an apparently intoxicated person.
The majority relies upon the seemingly broad statutory definition of "consume" (putting the liquor to any use) as operating to allow an officer to observe consumption by viewing, without more, an apparently intoxicated person. However, "putting" means placing in a certain position. Webster's, at 1849. Again, this definition denotes a volitional act or exercise of control. It therefore similarly takes a strained interpretation of the statute to say an officer observes a person consume alcohol simply by seeing an *437individual who is apparently intoxicated. Indeed, the appearance and odor of intoxication may be disease induced or caused by medical conditions. Under such circumstances, the officer has probable cause for an arrest warrant since he has cause to believe a violation of the consumption statute occurred recently but, without more, he may not effect a warrantless arrest.
I do not say that had the arrest been effected lawfully, the minor could not have been convicted. See State v. Lawson, 37 Wn. App. 539, 681 P.2d 867 (1984) (odor of alcohol with unsteady physical conduct and unclear speech constitutes substantial evidence from which a fact finder could conclude consumption had previously occurred). Moreover, in this instance, even if a fact finder were not persuaded of guilt, a proper arrest nevertheless would have occurred for purposes of the charge of resisting a lawful arrest, had a warrant been issued.
Since public policy demands minors be protected from themselves, it may be RCW 10.31.100 should include the additional exception of permitting a warrantless arrest on probable cause that consumption or possession of liquor has occurred, regardless of whether there is probable cause to believe the consumption was associated, as in the other statutory exceptions, with driving. But, this is a matter for the Legislature, not the courts.
Review granted by Supreme Court October 19, 1984.
While RCW 10.31.100 permits an officer to arrest without a warrant anyone for using or possessing cannabis on mere probable cause, the same statutory concession is not made with respect to liquor unless the officer has probable cause to believe the person is driving while under the influence of intoxicating liquor or driving recklessly. RCW 10.31.100(1) and (2)(c) and (d). The record in this case does not reflect motor vehicle involvement.