¶1(dissenting) — In State v. Crediford, this court held that the relationship between a defendant’s alcohol level within two hours of driving and the consumption of *498alcohol prior to driving is an element of the crime of driving under the influence of alcohol (DUI) which must be proved by the State. State v. Crediford, 130 Wn.2d 747, 927 P.2d 1129 (1996). The majority now abandons sub silentio, its analysis in Credifordand relieves the State from its burden of proving the very element it recognized in Crediford. In other words, what this court gave with one hand in Credifordit now takes back with the other. I respectfully dissent.
¶2The DUI statute says a person is guilty of the offense if he drives a vehicle while under the influence of alcohol or drugs or if, within two hours after driving, he has an alcohol concentration of .10 percent or higher in his breath or blood. Former RCW 46.61.502(l)(a). The statute also says it is an affirmative defense to a prosecution for this second form of the offense if the defendant proves by a preponderance of the evidence that he consumed a sufficient quantity of alcohol after driving and before the test to cause an alcohol concentration of above .10 percent. Former RCW 46.61.502(3). The plurality in Credifordfelt the Legislature would not have intended “to punish persons for the consumption of alcohol that was not associated with the operation of a motor vehicle.” Crediford, 130 Wn.2d at 755. In order to give effect to the Legislature’s perceived intent and avoid possible constitutional problems, the plurality said it had to interpret RCW 46.61.502 to include a “legally required, albeit implied, element” that the defendant had a sufficient quantity of alcohol in his system while driving to result in a breath or blood alcohol concentration of .10 or higher within two hours after driving. Crediford, 130 Wn.2d at 755. The plurality also concluded that the statutory affirmative defense unconstitutionally relieved the State of its burden of proving every element of the crime (specifically, the implied element). Id. at 759.
¶3The defendant in Credifordhad been convicted in a bench trial on stipulated facts, so neither the elements of the crime nor the statutory affirmative defense had been incorporated in jury instructions. Thus, the question was *499not whether an instructional error was harmless, but how the constitutional defect in the statute affected Crediford’s bench trial. The plurality found the stipulated facts insufficient to prove the defendant’s .16 reading was caused by alcohol consumed before driving, and thus concluded that a new trial would be barred by double jeopardy. Id. at 760-61.
¶4Robbins had a jury trial. Based on Crediford, his attorney proposed a “to convict” instruction which would have required the State to prove that, while Robbins was driving, he either had a breath alcohol concentration of .10 percent or higher or was actually impaired by alcohol. The trial court instead gave an instruction that required the State to prove Robbins had an alcohol concentration of .10 percent or higher in his breath within two hours of driving.
¶5Today, the majority opinion holds that the State need only prove the “implied element” described in Credifordif the defendant affirmatively asserts that he or she consumed alcohol after driving which resulted in a breath test of .10 or higher. Majority at 495. The opinion analogizes to self-defense, which becomes an issue only if the defendant raises it. Majority at 495-96.
¶6Admittedly, self-defense need be disproved only if the defendant presents some evidence he acted in self-defense. But that is a defense. The reason the State must disprove it is that it negates the intent element of the crime. State v. McCullum, 98 Wn.2d 484, 494-96, 656 P.2d 1064 (1983).
¶7This court has repeatedly held that “nonstatutory” (i.e., “implied”) elements of crimes must be included in the information, just the same as statutory elements. E.g., State v. Moavenzadeh, 135 Wn.2d 359, 362, 956 P.2d 1097 (1998) (citing other cases). This court has also reversed convictions because a nonstatutory element was omitted from the jury instructions. State v. MacMaster, 113 Wn.2d 226, 231, 778 P.2d 1037 (1989) (omission of causation element in vehicular homicide case).
¶8That is why this court found the DUI affirmative defense unconstitutional in State v. Crediford, 130 Wn.2d 747, 927 P.2d 1129 (1996).
¶9The Legislature responded to MacMasterby amending the statute to omit that element. See State v. Rivas, 126 Wn.2d 443, 896 P.2d 57 (1995); State v. Salas, 127 Wn.2d 173, 897 P.2d 1246 (1995).
¶10(dissenting) — While the majority purports to “reaffirm our holding in Crediford that RCW 46.61.502 is constitutional,” Majority at 497, Crediford actually held shifting the burden to the defendant to disprove “an element of the offense by a preponderance of the evidence [] violates Crediford’s right to due process.” State v. Crediford, 130 Wn.2d 747, 750, 927 P.2d 1129 (1996). Although the precise issue raised here was not necessary to determine in Crediford,
¶11Statute Exceeds State’s Legitimate Police Power
¶12A statute is a valid exercise of the police power if it: (1) corrects or protects against some evil; and (2) bears a reasonable and substantial relationship to accomplishing its purpose. See State v. Brayman, 110 Wn.2d 183, 193, 751 P.2d 294 (1988).
¶13The evil here is drunk driving, which is what the statute was designed to prevent. Crediford, 130 Wn.2d at 754. However the subsections at issue do not necessarily promote this legitimate purpose. The 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 grams 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.
¶14Former RCW 46.61.502 (1994) (emphasis added).
¶15This court examined an analogous statute in City of Seattle v. Pullman, 82 Wn.2d 794, 514 P.2d 1059 (1973). There a Seattle ordinance banned loitering by those under the age of 18 after 10:00 p.m. We held the ordinance exceeded the scope of the police power of the state because it failed to distinguish between harmful and harmless behavior. We recognized that the state had a legitimate interest to promote the well-being of minors but held that a curfew did not reasonably relate to that interest and therefore violated legally protected rights. Likewise, subsections (a)(b) of this statute criminalize persons with a postdriving breath or blood alcohol concentration (BAC) over 0.10, but do not reasonably promote the state interest involved— prohibiting driving with a BAC of 0.10 percent or greater.
¶16In another similar case we struck down an arson statute which banned willful burning of property, finding it exceeded the police power for want of distinction between harmful arson and the election of owner to incinerate his own worthless property. State v. Spino, 61 Wn.2d 246, 250, 377 P.2d 868 (1963).
¶17Legislative history demonstrates the real motive behind subsections (a)-(b) of the statute is not to prohibit drunk driving but to more easily obtain convictions. See Crediford, 130 Wn.2d at 764 n.l (Sanders, J., concurring) (quot*503ing from one of statute’s legislative sponsors that bill is one prosecutors wanted and would be helpful in some prosecutions for drunk driving). However postdriving drunkenness does not bear a substantial or necessary relationship to the legitimate state goal of banning drunk driving unless driving while impaired is an element of the crime. Unfortunately this element is omitted in subsections (a)-(b). See also Commonwealth v. Barud, 545 Pa. 297, 681 A.2d 162, 167 (1996) (statute identical to Washington’s unconstitutional as it “precludes the admission of competent evidence that an accused’s BAC was actually below the legal limit at the time of driving.”).
¶18Vagueness
¶19A statute may also be constitutionally infirm if it is so vague it fails to define the criminal activity with sufficient definiteness to forewarn a citizen of the conduct which is deemed criminal. Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903 (1983). We have held, for example, that a statute requiring massage therapists to be “ ‘fully clothed’ ” was void for vagueness because it failed to give fair warning what manner of dress is unlawful. Myrick v. Pierce County Comm’rs, 102 Wn.2d 698, 707-08, 677 P.2d 140, 687 P2d 1152 (1984).
¶20While RCW 46.61.502 makes clear what level of alcohol exceeds the lawful limit at the time of the postdriving blood or breath test, it does not tell us, and it is impossible to know, what level of alcohol while driving is prohibited since one cannot know in advance if or when a test will be administered. This is necessarily so because the BAC at the time of the test is a function of not only the amount consumed but also the time of the test, to account for absorption, or lack thereof, into the bloodstream. The Pennsylvania Supreme Court concluded a nearly identical statute did not provide a reasonable standard by which an ordinary person could determine what was legal or illegal activity, since a person cannot know when his alcohol level would exceed 0.10 percent at the uncertain time of the *504postdriving test. Barud, 681 A.2d at 166. The Delaware Supreme Court held a statute nearly identical to Washington’s void as such vagueness “encourages arbitrary enforcement.” State v. Baker, 720 A.2d 1139, 1149 (Del. 1998).
¶21Overbroad
¶22A statute is unconstitutionally overbroad if it punishes activity which is otherwise permissible. City of Tacoma v. Luvene, 118 Wn.2d 826, 839, 827 P.2d 1374 (1992). Here the statute specifically criminalizes what is otherwise legal—intoxication while not driving. See Barud, 681 A.2d at 166 (statute allowing for conviction based on postdriving BAC tests unconstitutional as it “sweeps unnecessarily broadly into activity which has not been declared unlawful ----”).
¶23The majority acknowledges that a “literal reading” of the statute in question reveals exactly the flaws outlined, Majority at 492-93; however, the majority rationalizes its decision by relying upon dicta which invented an “ ‘implied element’ ” of RCW 46.61.502 requiring a “ ‘nexus’ ” between alcohol consumed prior to driving and the BAC tested up to two hours after driving. Majority at 493 (quoting State v. Crediford, 130 Wn.2d 747, 755, 927 P.2d 1129 (1996)).
¶24As held by the Delaware Supreme Court, the problem with a law such as ours is that it fails to account for the rate of alcohol absorption after drinking. It catches within *505its net those whose BAC is below the legally proscribed level while driving, but whose BAC rises above it afterward. Baker, 720 A.2d at 1147. It therefore omits the legally necessary, and reasonable, nexus to the state’s legitimate interest.
¶25New York’s highest court supplied the correct nexus in People v. Mertz, 68 N.Y.2d 136, 497 N.E.2d 657, 506 N.Y.S.2d 290 (1986). There the court upheld a statute that criminalized drunk driving based on a blood test taken within two hours of driving, 497 N.E.2d at 660, but only by construing the statute to require that while a reading of 0.10 percent or more on a postdriving blood test might establish a prima facie violation of the statute, the defendant may nonetheless present evidence in defense that his BAC while driving was below 0.10. Id. at 658. Thus, the New York court rejected an interpretation much like the majority’s that would have criminalized driving based solely on the test results as such ignores the “scientifically accepted fact that a .10 reading within two hours after operation does not establish a .10 reading while operating and, in effect, [rewrites] the statute.” Id. at 661. See also McLean v. Moran, 963 F.2d 1306, 1310 (9th Cir. 1992) (where prosecution rests entirely on statutory presumption that postdriving BAC is not less than BAC at time of driving, the correlation between one’s BAC at the time of arrest and the time of the test may fail “ ‘beyond a reasonable doubt’ standard”).
¶26Conclusion
¶27The evil of drunk driving may be great, but the cure is to stop drunks from driving, not convict the innocent. This *506statute is more than a triumph of form over substance: it is a triumph of prosecution over innocence. I dissent.
¶28Johnson, J., concurs with Sanders, J.
¶29In 1996, seven justices of this court reversed a conviction for drunk driving based on their conclusion that one section of Washington’s driving under the influence (DUI) statute was unconstitutional. State v. Crediford, 130 Wn.2d 747, 759-60, 927 P.2d 1129 (1996). Six justices, however, chose to opine on their assumption that the balance of the statute was constitutionally valid, id.,when there was no need to do so. Such opining is not precedent, hut only dicta. See, e.g., Pedersen v. Klinkert, 56 Wn.2d 313, 317, 352 P.2d 1025 (1960). Therefore, contrary to the majority’s assertion that Robbins needed to “convince us that we *501should abandon our recent decision in Crediford,” Majority at 494, the only thing we need do is determine whether the remainder of the statute, which is what Robbins challenges, does indeed pass constitutional muster.
¶30The applicable statute has been subsequently amended to combine paragraphs (a) and (b) into one paragraph (a), and the alcohol concentration has been lowered to 0.08. However, the law remains substantially the same. RCW 46.61.502(1).
¶31See E. John Wherry, Jr., The Rush to Convict DWI Offenders: The Unintended Unconstitutional Consequences, 19 U. Dayton L. Rev. 429, 438 (1994) (in prosecutions based only on tests of driver’s alcohol content, “Intoxication is not at issue. . . . The ability to operate a motor vehicle is irrelevant. . . .”).
¶32By creating an element of a crime that is not in the statute, the majority ignores “this court’s long history of restraint in compensating for legislative omissions. . . . Courts do not amend statutes by judicial construction, nor rewrite statutes ‘to avoid difficulties in construing and applying them.’ ” Millay v. Cam, 135 Wn.2d 193, 203, 955 P.2d 791 (1998) (citations omitted) (quoting Applied Indus. Materials Corp. v. Melton, 74 Wn. App. 73, 872 P.2d 87 (1994)). See also Spino, 61 Wn.2d at 249-50 (refusing to rewrite statute which exceeded state’s police power by prohibiting willful burning to instead prohibit malicious burning as “rules of statutory construction can be used only to ascertain the meaning of a statute and not to modify it.”).
¶33A detailed explanation' of the alcohol absorption process may be found in Jennifer L. Pariser, Note, In Vino Veritas: The Truth About Blood Alcohol Presumptions in State Drunk Driving Law, 64 N.Y.U.L. Rev. 141, 145-53 (1989). See also McLean v. Moran, 963 F.2d 1306, 1309-10 (9th Cir. 1992) (“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 . . . .”); People v. Mertz, 68 N.Y.2d 136, 497 N.E.2d 657, 660, 506 N.Y.S.2d 290 (1986) (listing cases, treatises, law review articles, and science journal reports).