(concurring) — Neither the implied consent statute nor its policy underpinnings require the majority’s conclusion that in a driver’s license revocation proceeding based upon "refusal” to submit to a breath test for alcohol, a mental condition rendering the driver unable either to refuse or to cooperate in the test is an irrelevant consideration. The majority’s result is particularly unfortunate because it fails to acknowledge that a mental disorder may be just as debilitating as a physically manifested condition incapacitating the driver. I concur in the result reached by the majority, however, because the driver’s offer of proof was insufficient to show that his mental disorder prevented him from responding when informed of his choice to take a breath test or refuse and have his license revoked.
Fundamental to the majority’s reasoning is the principle that the implied consent statute requires that a driver either willingly cooperate in a breath alcohol test or suffer revocation of his or her driver’s license, the only exception being where a law enforcement officer can determine objectively that a physically manifested condition has incapacitated the driver and he or she is unable either to submit to the test or refuse to do so. There is support for the majority’s approach in Department of Motor Vehicles v. McElwain, 80 Wn.2d 624, 627, 496 P.2d 963 (1972), where the court said that the implied consent statute requires drivers to either submit to a test for blood alcohol content or be subject to license revocation.
However, another principle embodied in the implied consent statute is that the requirement that drivers be advised of the choice to submit to a test or refuse and have their licenses revoked has the "obvious purpose ... to provide [the driver] the opportunity of exercising an intelligent judgment if he is capable of doing so.” Id. at 628. A driver suffering a mental disorder such as Mr. Medcalf alleges may, when suffering an obsessive-compulsive disorder attack, be denied the opportunity to make such an intelligent judgment, not because the officer does not give *304the required advisement, nor because of anything the driver has done or refrained from doing volitionally, but rather because of the mental disorder. In other words, drivers would be just as incapable of making and acting on that intelligent judgment as if they were unconscious. Under such circumstances, there is no meaningful opportunity to make the choice.
A mental disorder which prevents the driver from making any choice at all regardless of the fact the individual may want to cooperate — a disorder which cannot be objectively discerned by the officer — creates obvious tension between the two principles. On the one hand, the apparent failure to cooperate may be deemed a refusal requiring license revocation. On the other hand, the drivers have neither cooperated nor refused to do so because they were unable to make or act on an intelligent judgment when the officer advised them of their choice. The problem, of course, is that while license revocation is intended to be a consequence of refusing to submit to a test, it instead becomes a penalty for suffering from a mental disorder beyond the driver’s control.
Contrary to the Department of Licensing’s position that consideration of a mental disorder would make it impossible for the officer in the field to determine when a refusal to submit to a test occurs, Mr. Medcalf agrees with the judicial interpretations of those portions of the implied consent statute which direct when the officer in the field may deem failure to cooperate as a refusal to take the test. As the majority observes, case law holds that under RCW 46.20.308 if a driver does not willingly submit to and cooperate in the administration of a breath or blood test, that driver will be deemed to have refused the test unless dead, unconscious, or in a physically manifested condition rendering the driver incapable of refusal. Majority at 298-99 (emphasis added); see RCW 46.20.308(4). This interpretation allows an arresting officer to reasonably determine pursuant to objective criteria whether the person was in a condition rendering him or her incapable of *305refusal. If a driver is in such a condition, then by the express terms of the statute the person is deemed not to have withdrawn consent to a breath or blood test and to have received the required warnings, thus permitting a blood test to be administered. RCW 46.20.308(4). The officer in the field cannot be expected to determine whether the driver suffers a mental disorder rendering him or her incapable of refusal without objective factors exhibiting incapacity.
However, Medcalf contends that where former RCW 46.20.308(7) and (8) (now subsections (8) and (9)) are concerned, the focus is on the duties of the Department and the courts, and for purposes of whether a license should be revoked, the Department and the courts should consider whether in fact he refused to submit to a breath or blood test. If he did not, because he was suffering an obsessive-compulsive disorder attack, his license should not be revoked.
The majority rejects this argument. The majority relies upon the presumption that where the same word is used in different parts of an enactment, it is presumed the same meaning is intended throughout. Accordingly, the majority interprets "refuse” the same way throughout the statute. However, the presumption should give way when the context of the statute indicates a different meaning is appropriate. This court has recognized, for example, a nearly identical presumption that the same meaning is intended when the Legislature has used a word with a particular meaning in a statute and then subsequently uses the same word in legislation on the same subject. However, the presumption is only that, i.e., a presumption:
"Whenever a legislature had used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, it will be understood as using it in the same sense, unless there be something in the context or the nature of things to indicate that it intended a different meaning thereby.”
Garrison v. Washington State Nursing Bd., 87 Wn.2d 195, *306197, 550 P.2d 7 (1976) (emphasis added) (quoting State ex rel. American Piano Co. v. Superior Court, 105 Wash. 676, 679, 178 P. 827 (1919) (quoting in turn 36 Cyclopedia of Law and Procedure 1150 (W. Mack ed., 1910))); see also Champion v. Shoreline Sch. Dist. No. 412, 81 Wn.2d 672, 676, 504 P.2d 304 (1972); East v. King County, 22 Wn. App. 247, 254, 589 P.2d 805 (1978). The same reasoning holds true where the same word is used in different subsections of a statute.
Here, the structure of the statute indicates that the first subsections deal with the officer’s actions in the field, but the latter sections deal instead with the role of the Department and the courts. This distinction indicates a different approach to "refuse” in the different subsections may be appropriate. Further, while objective physical manifestations may be needed for the law enforcement officer to carry out the purposes of the statute, the same is not true of the Department and the courts. Whether in an administrative or court proceeding, taking and evaluating evidence are routine, and both the Depártment and the courts are well equipped to assess evidence that no refusal in fact occurred, including evidence of a mental disorder alleged to have prevented the driver from submitting to a test, even though such a determination would be beyond the ability of the officer in the field.
In addition, given the purpose of the statute to provide for revocation as a consequence of refusing to submit to and cooperate in a breath or blood test, revocation should not be a consequence where a mental disorder makes it impossible to submit to a test. Significantly, refusal is "deemed” where there is no positive willingness to take and cooperate in the test. Plainly, deeming inaction to be a refusal is not to say that the driver has in fact actually refused. While expediency necessitates the interpretation accorded the term "refuse” in the first subsections of RCW 46.20.308, and the "deeming” of a refusal due to lack of submission to and cooperation in a test, thus permitting the officer to enforce the statute, no similar expediency is needed when the Department and the courts later assess *307whether a mental disorder prevented the driver from exercising and acting on any intelligent judgment. Given the lack of need for such expediency at the revocation proceedings and the obvious intention that revocation is a consequence of failing to cooperate, the term "refuse” should not be given the same meaning in former subsections (7) and (8) as in subsection (4).
The nature and the context of the implied consent statute overcome the presumption that the same interpretation should be accorded the term "refuse” in all its subsections.
Next, the majority concludes that appellate decisions disfavor Mr. Medcalf s position. For example, in McElwain, this court rejected the argument that severe intoxication could be offered as a reason why a driver was "incapable of refusal.” It is important to remember, however, that the nature of the asserted mental condition, severe intoxication while driving, involves the very evil the statute is designed to sanction and deter. As the court noted, accepting defendant’s argument would "exempt from the statutory coverage a class of persons whose driving is the most dangerous — those who, while not too intoxicated to drive, are nevertheless too intoxicated to respond intelligently to stimuli in their surroundings.” McElwain, 80 Wn.2d at 627. The same is true in Steffen v. Department of Licensing, 61 Wn. App. 839, 812 P.2d 516 (1991) (where the driver ingested both drugs and alcohol).
In my view, the few other Court of Appeals’ decisions relied upon by the majority and the Department in its briefing fail to appreciate the distinction between a determination of refusal for purposes of the officer’s actions in the field, necessarily driven by expediency, and the later judicial determination that a refusal in fact occurred.
The majority says, though, that the policies underlying the implied consent statute would not be satisfied if Mr. Medcalf were entitled to present evidence that he wanted to take the test but was unable to do so because of his mental disorder. Those policies are to discourage people *308from driving while under the influence of alcohol or drugs, to remove the driving privileges of those who are inclined to drive while intoxicated, and to provide an efficient means of gathering evidence of intoxication or nonintoxication through breath or blood alcohol tests. Majority at 297 (citing cases). The majority reasons that the evidence-gathering goal in particular would not be furthered. Majority at 302.
As to the first of these policies, discouraging driving while intoxicated, the Department claims that those with mental disorders would drive drunk with impunity if they could later claim they did not refuse a test due to their mental disorder. There are several reasons why this contention is unpersuasive. First, it is completely speculative. Second, although the results of a breath or blood test are valuable evidence in a prosecution for driving while intoxicated, other evidence of impairment is often available to support a conviction. The simple fact that someone suffers from a mental disorder is no assurance that a drunk driving conviction can be avoided, and the deterrent effect of a possible conviction cannot be discounted. Third, the time and expense involved in presenting evidence of a mental disorder would tend to discourage any "plotting” on the part of a person suffering from a mental disorder to drive while intoxicated with the intention of claiming that no refusal to take a breath or blood alcohol test occurred because of a mental disorder attack. Finally, the trier of fact must be convinced that the driver was unable to submit to a test although wanting to do so.
The second policy is the removal of the driving privileges of those inclined to drive while intoxicated. This policy, too, would not be undermined by allowing presentation of evidence that, because of a mental disorder, a driver did not in fact refuse a breath test and would have submitted to a test if able to do so. By way of comparison, a driver who submits to a test obviously is not seeking to avoid the test. The same thing is true of the driver who would have submitted to a test but for a mental disorder *309attack. The policy of removing the driving privileges of those inclined to drive while intoxicated is not implicated any more in the case of the driver who cannot submit to a test because of a mental disorder than it is for the driver who in fact submits to a test. The only significant difference is that in the latter case there will be additional evidence of intoxication or nonintoxication. Perhaps this is why the only policy the majority specifically refers to is the evidentiary policy.
Turning to the policy of efficient gathering of evidence, I agree that in a case like this one the evidence of breath or blood alcohol content will not be attainable by the law enforcement officer. To that extent, the circumstances are like those where a driver affirmatively refuses to submit to a breath or blood alcohol test, for in neither case will test results be available.
However, the big difference is that one who affirmatively refuses to submit to a test or fails to willingly cooperate although able to do so "deserves what he gets,” so to speak, by the terms of the statute, i.e., license revocation. In contrast, under the facts Mr. Medcalf alleges, the driver is penalized for having a mental disorder rather than for refusing to submit to a test. Thus, as a policy matter, the majority’s reading of RCW 46.20.308 is fundamentally unfair to those who suffer from a mental disorder rather than a physical injury or condition making it impossible for them to submit to a breath or blood test. This is a particularly unfortunate result in a time when as a society we understand that a mental disorder may be as completely debilitating as a physical condition. It is also unfortunate where the statute does not demand the result.
I would hold that evidence that a driver was suffering from an obsessive-compulsive disorder attack which prevented the driver from submitting to and cooperating in a breath or blood test should be admissible in a driver’s license revocation proceeding in order to determine whether the driver "refused to submit to the test or tests upon the request of the officer . . . .” Former RCW *31046.20.308(7) (now subsection (8)) (concerning Department hearing); see former RCW 46.20.308(8) (now subsection (9)) (concerning court proceedings).
In this case, however, Mr. Medcalfs oifer of proof6 was insufficient to show that he was unable to submit to a test when requested to submit to a breath test. Mr. Medcalf sought to introduce expert psychological testimony about his disorder, reinforced by psychological opinion testimony as to whether he was suffering an obsessive-compulsive disorder attack which prevented him from submitting to the breath test. When Medcalf made his offer of proof, his psychologist testified that he felt "certain” that Medcalf had experienced an obsessive-compulsive episode when arrested, taken to the police station, and requested to submit to a test. Verbatim Report of Proceedings at 34, 35, 37. However, when asked to give his opinion as to whether Medcalf refused or could have refused the breath test, he testified that "there’s a good likelihood that [Medcalfs] obsessional disorder rendered him unable to comply with the request to take the Breathalyzer test.” Id. at 27. He also testified, when asked if an obsessive-compulsive attack had anything to do with Medcalfs response to a request to take the breath test, "I believe it certainly could.” Id. at 24.
Expert opinion testimony about a person’s mental status is not admissible unless the opinion is held with a reasonable degree of medical and psychological certainty. See In re Twining, 77 Wn. App. 882, 891, 894 P.2d 1331 (1995). The issue of the degree of certainty required often arises where causation is at issue. For example, medical opinion testimony that an accident caused a physical condition "must rise to the degree of proof that the resulting condition was probably caused by the accident, or that the *311resulting condition more likely than not resulted from the accident, to establish a causal relation.” Miller v. Staton, 58 Wn.2d 879, 886, 365 P.2d 333 (1961); see Ugolini v. States Marine Lines, 71 Wn.2d 404, 407, 429 P.2d 213 (1967). Testimony that an "accident or injury 'might have,’ 'could have,’ or 'possibly did’ cause the subsequent condition” is insufficient. Id. at 407. The evidence is insufficient if, considering all the medical testimony, the jury must resort to speculation or conjecture in determining the causal relationship. McLaughlin v. Cooke, 112 Wn.2d 829, 837, 774 P.2d 1171 (1989) (citing O’Donoghue v. Riggs, 73 Wn.2d 814, 824, 440 P.2d 823 (1968)).
Here, the psychologist’s testimony that Medcalf suffered from obsessive-compulsive disorder, and that he suffered an attack when he was arrested and requested to submit to a breath test meets the "reasonable degree of medical certainty” standard. However, the psychologist’s opinion testimony concerning the relationship between the disorder attack and Medcalf s response to the officer’s request that he take a breath test was that there was a "good likelihood” the attack rendered Medcalf unable to comply with the request, and that he "believed” that the attack "certainly could” have had something to do with Med-calf s lack of response when requested to take a breath test. This testimony does not rise to the level of a reasonable degree of medical and psychological certainty — it is testimony in terms of possibility, not probability. Accordingly, the proffered testimony would have been inadmissible. For this reason, I concur in the result reached by the majority.
Alexander, J., concurs with Madsen, J.
Medcalf requested a formal hearing on his license revocation, and the revocation was affirmed. He then appealed de novo to superior court under former RCW 46.20.308(8) and RCW 46.20.334. In an order on a motion in limine, the trial court ruled that evidence of a mental disorder is not admissible to establish a defense to a failure to submit to and cooperate in a test. Medcalf then made his offer of proof.