(dissenting) — I respectfully disagree with the majority's conclusion that because a driver arrested for negligent homicide has no right to refuse to take a chemical test to determine the alcoholic content of his blood, police *318officers consequently have no duty to advise him of his right to have additional tests taken under RCW 46.20-.308(1).4
When a chemical test to determine blood alcohol content is made and subsequently introduced in a criminal trial where intoxication is the foundation for the charge, the issue of the accuracy of the testing procedures immediately arises. The purpose underlying the defendant's right to have additional tests taken thus becomes obvious: "[T]hat he may have his own tests made if he fears the accuracy or fairness of the test to be given by law enforcement officers." State v. Richardson, 81 Wn.2d 111, 116, 499 P.2d 1264 (1972).
In one of the few cases to address the constitutional significance of the defendant's right to additional sobriety tests, the court in In re Newbern, 175 Cal. App. 2d 862, 1 Cal. Rptr. 80 (1959) held it was a violation of due process to *319refuse a defendant charged with intoxication the opportunity to summon a physician for the purpose of obtaining an additional, independent test to determine his blood alcohol content. The court's reasoning on this point at pages 864-66 is persuasive:
The Constitution gives to every person accused of a crime, including drunks, the right to a fair trial, the right to summon witnesses in his own defense, the aid of counsel and due process of law. (Cal. Const., art. I, § 13.) The spirit and purpose of these constitutional guarantees is to assure everyone a full and ample opportunity to be heard before he can be deprived of his liberty or his property. While it is primarily the function of the courts to see that these rights are not denied, law enforcement agencies also have a responsibility to protect as well as to prosecute.
"While peace officers and officials connected with detection and prosecution of crime should be diligent in ferreting out and prosecuting the guilty they should be fair with an accused. Evidence pointing to his innocence should not be suppressed. For a guilty man to escape punishment is a miscarriage of justice, but for an innocent man to be convicted is unthinkable.” (People v. Reed, 27 Cal.App.2d 484 at page 493, [81 P.2d 162].)
. . . [W]hen, in the exercise of their power to arrest, the police deprived the arrested person of the opportunity to obtain evidence that might establish his innocence, they are suppressing it just as effectively as if it did exist and they withheld it.
The accuracy of blood tests for the purpose of determining intoxication has been recognized in many courts. "... Nor should it be ignored that a test of this kind may serve to exonerate, as well as to convict." (People v. Duroncelay, 48 Cal.2d 766 at page 772, [312 P.2d 690].)
. . . [T]he arrested person, on his own behalf, should be entitled to a reasonable opportunity to attempt to procure a timely sample. To refuse him such reasonable opportunity is to deny him the only opportunity he has to defend himself against the charge.
In State v. Krieg, 7 Wn. App. 20, 27, 497 P.2d 621 (1972), chemical tests performed under the authority of RCW *32046.20.308(1) were rendered inadmissible in a criminal prosecution as a result of the officer's failure to advise the defendant of his right to have additional tests administered. Unlike the instant case, however, Krieg did not involve a criminal prosecution for negligent homicide under circumstances where the defendant had no right to refuse the sobriety test administered by the State. Nevertheless, language contained in a subsequent Washington case indicates the result in Krieg — exclusion of the evidence— should still obtain in the case at hand.
In State v. Canaday, 90 Wn.2d 808, 585 P.2d 1185 (1978), the court held the routine destruction of used Breathalyzer ampules did not violate the constitutional-due process requirement that the State preserve all evidence potentially material and favorable to the defense. In support of this decision, the court placed considerable emphasis upon the defendant's statutory right to obtain additional tests. With respect to this statutory right, the court said at page 817:
Persons arrested and asked to take a Breathalyzer test are uniformly offered the opportunity to obtain their own best evidence for use at any trial resulting from the conduct leading to their arrest. They have the right to obtain an independent test of their blood alcohol content administered by a qualified person of their own choosing. RCW 46.61.505(5). They are informed of this right when asked to take the test. Although we do not believe failure to obtain an independent test could amount to a waiver of any recognized constitutional right to due process, the statutory requirement demonstrates an important protection of the subject's right to fundamental fairness which is built into our implied consent procedure.
(Italics ours.) Therefore, I conclude even though the defendant's consent to take the chemical tests for intoxication was unnecessary under the circumstances, he should have been advised of his right to have additional tests taken by a qualified person of his own choosing. Thus, not knowing of his right to have additional tests was a denial of the opportunity to procure a blood test on the charge of *321negligent homicide and prevented the accused from obtaining evidence necessary to his defense.5 This was a denial of due process. In re Newbern, supra at 83.
Because constitutional due process principles are, in fact, raised by the defendant's appeal, defense counsel's failure to raise this issue at trial does not preclude review by this court. RAP 2.5(a).6
For these reasons, I respectfully dissent.
Reconsideration denied October 31, 1979.
Review denied by Supreme Court January 18, 1980.
RCW 46.20.308(1):
"Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of RCW 46.61.506, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his 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. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor. Such officer shall inform the person of his right to refuse the test, and of his right to have additional tests administered by any qualified person of his choosing as provided in RCW 46.61.506. The officer shall warn the driver that his privilege to drive will be revoked or denied if he refuses to submit to the test. Unless the person to be tested is unconscious, the chemical test administered shall be of his breath only: Provided, That if an individual is under arrest for the crime of negligent homicide by motor vehicle as provided in RCW 46.61.520, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.506, which arrest results from an accident in which another person has been injured and there is a reasonable likelihood that such other person may die as a result of injuries sustained in the accident, a breath or blood test may be administered without the consent of the individual so arrested. In such circumstances, the provisions of subsections 2 through 6 of this section shall not apply." (Italics ours.)
The majority states Mr. Carranza had the opportunity to perform additional tests on the blood sample obtained by the State. However, the availability of this sample may have been of little use to the defendant. Although this case involved a chemical blood test, the court in State v. Canaday, 90 Wn.2d 808, 814, 585 P.2d 1185 (1978), noted the scientific community generally denies the reliability of retesting procedures involving used Breathalyzer ampules. Furthermore, the exercise of the right to obtain additional tests contemporaneous with the test administered by the State undoubtedly has more force in rebutting the State's evidence.
RAP 2.5(a):
"The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: ... (3) manifest error affecting a constitutional right."