Beck v. Cox

597 P.2d 1335, 1979 Utah LEXIS 908

• Court: Utah Supreme Court
• Decided: June 29, 1979
• Docket: 15795
• Status: Published

Opinions

STEWART, Justice:

Plaintiff appeals from an order of the district court revoking his driver’s license pursuant to Utah’s Implied Consent Statute, Section 41-6-44.10, U.C.A.¹ Plaintiff raises the important issue under that statute of what conduct constitutes a “refusal” to take a blood test so as to warrant the revocation of the license of a person arrested for driving under the influence of alcohol or a drug.

The legislature has provided for the revocation of a driver’s license of a person who refuses to take a blood alcohol test at the request of a police officer. Section 41-6-44.10(a) provides that a person who operates a motor vehicle in this state is “deemed to have given his consent” to submit to a blood alcohol test when an officer has grounds to believe that the driver was driving under the influence of alcohol or a drug. Section 41-6-44.10(b) provides that if a person has been placed under arrest and has been requested by a police officer to take a breath, blood, or urine test and the driver refuses, then the person shall be warned that a “refusal to submit to the test or tests can result in revocation of his license to operate a motor vehicle.” After the refusal and the warning, a person must then request that the test be given. If the driver does not take a test, the police officer is required to file a sworn report stating that he has grounds to believe that the arrested person had been driving while under the influence of alcohol and had refused to submit to a chemical test. A hearing is then held before the Department of Public Safety, and if the Department determines that the person was granted “the right to submit to a chemical test or tests” and refused to take such a test, the Department shall revoke for one year the driver’s license.

On the night of December 8, 1977, the plaintiff, who had recently come from California to Utah, was driving his automobile and was pulled over to the side of the road by two police officers. The arresting officer testified that he stopped the plaintiff because of a call from the dispatcher to be on the lookout for an automobile which resembled the plaintiff’s. The officer, however, also testified that he observed the plaintiff make a right-hand turn, swerve in a jerky fashion, and, instead of returning to the right-hand lane of traffic, straddle the white dividing line. After plaintiff’s car was stopped, he had to hold onto the door of his car, apparently for support, and the officer detected the smell of alcohol on the plaintiff. The officer then administered field sobriety tests, and the plaintiff failed to perform the heel-to-toe test. On the basis of observing the plaintiff and his performance of the field sobriety tests, the officer arrested the plaintiff for driving under the influence of alcohol. The officer then read to the plaintiff the provisions of the Utah Implied Consent Statute. In response plaintiff stated, “I’m a criminal, yeah, yeah, yeah, I’m a criminal.” On two subsequent occasions the arresting officer explained to the plaintiff that if he refused to take a test, he could lose his license for a year. On each occasion the officer expressly asked the plaintiff if he would take a test. Each time the plaintiff refused to give a yes or no answer and instead responded with the words “I don’t know.” Still a fourth time, at the jail, the officer asked the plaintiff to take a test, and this time the plaintiff refused to reply.² All this occurred within 30 or 40 minutes. Clearly, the plaintiff had ample opportunity to learn the consequences of his refusals to take a test and sufficient time to fully deliberate and even to change his mind.

Plaintiff’s self-serving testimony at the hearing that he did not intend to refuse a test and his statement at the booking desk to the effect that he had not taken a test hardly militate against the message conveyed by the totality of his conduct in the presence of the police officer. At the most, they have minimal probative value.³

After a hearing the Department of Public Safety found that plaintiff had refused to take a test. The district court, hearing the case de novo, entered written findings of fact and conclusions of law to the effect that plaintiff’s actions constituted a refusal to take the test. Since the findings of the trial court are supported by substantial, competent evidence, they must be affirmed. Charlton v. Hackett, 11 Utah 2d 389, 360 P.2d 176 (1961); DeVas v. Noble, 13 Utah 2d 133, 369 P.2d 290 (1962).

Plaintiff, however, presses upon us the argument that under the law a refusal must be an express, unequivocal refusal before a driver’s license may be revoked.

This interpretation of the statute would effectively emasculate it and is without foundation in authority or logic. If this argument were accepted, any person driving under the influence of alcohol could avoid having his license revoked by temporizing, equivocating, or simply remaining silent, as the facts of this case clearly illustrate. The irony of the argument is that a person inebriated to the point of unconsciousness would be saved from the loss of his license. The Legislature has,'however, rejected this logic by expressly providing that a blood test may be performed on an unconscious person.⁴

The implied consent statute should be construed in a fashion to make its application practicable and to enable an officer to deal realistically with arrested drivers who may be uncooperative, and even hostile. An officer would be confronted with an extremely difficult, if not impossible, problem if the statute were construed to require an express verbal refusal and an arrested driver simply equivocated or remained silent when requested to take a test. How many times should an officer ask a driver, who refuses to give an unequivocal answer, to take the test? Should he be required to persist and continue to repeat the request until such time as the driver believes that he has achieved a degree of sobriety sufficient to pass the test and is safe in giving a straight answer? The consequence of such a construction is to place a premium on uncooperativeness and obstruction that would likely inflame an already tense situation. Certainly the Legislature did not intend that law enforcement officers be placed in such an impossible situation or that the purpose of the law should be so easily evaded.

It cannot properly be argued that an express refusal is required because consent of a driver to take a test is implied by virtue of Section 41-6-44.10(a). That section provides that a driver is “deemed to have given his consent” to a test. The implied consent, however, is nothing more than a legal fiction, (see “The Status of Implied Consent Legislation Since Schmerber v. California,” 1967 Utah Law Review 168, at 169); it is simply a legally “implied consent” of the driver to take a blood test as a condition to using the highways. The fiction has been indulged to avoid possible constitutional difficulties in requiring an alcohol test. In any event, there is no force to the contention that an express, verbal refusal is necessary to withdraw the consent implied by the statute. It is the reality of the situation that must govern, and a refusal in fact, regardless of the words that accompany it, can be as convincing as an express verbal refusal.

Certainly it is unrealistic to contend that the plaintiff had not withdrawn his consent because he had not expressly refused to take the test. The unavoidable fact is that the appellant in this case, under any realistic appraisal of the facts, refused by his actions to take a blood test and simply played verbal games with the officer to avoid a direct refusal.

Hyde v. Dorius, Utah, 549 P.2d 451 (1976), relied upon by the plaintiff for the proposition that there must be an express refusal, does not support that proposition. That proposition was stated in Justice Maughan’s opinion in Hyde, but that opinion was concurred in only by Justice Tuckett. Chief Justice Henriod filed a separate opinion concurring in the result only. There was no indication in the opinion that he adhered to the “express refusal” concept. Justice El-lett dissented, and Justice Crockett concurred in that dissent. Thus, three justices refused to accept the “express refusal” concept. The issue in this case is not therefore controlled by the holding in Hyde.5

The overwhelming weight of authority holds that a refusal may be established on the basis of the conduct of the motorist, without an express refusal, if he has clearly been asked to take a test. Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); Cahall v. Department of Motor Vehicles, 16 Cal.App.3d 491, 94 Cal.Rptr. 182 (1971); Lampman v. Department of Motor Vehicles, 28 Cal.App.3d 922, 105 Cal.Rptr. 101 (1972); Buda v. Fulton, 261 Iowa 981, 157 N.W.2d 336 (1968); Hoban v. Rice, 25 Ohio St.2d 111, 267 N.E.2d 311 (1971); McKenzie v. Bureau of Motor Vehicles, 37 Ohio Misc. 24, 306 N.E.2d 197 (1973); State Department of Motor Vehicles v. Riba, 10 Wash.App. 857, 520 P.2d 942 (1974).

Lampman v. Department of Motor Vehicles, supra, is closely in point and is illustrative of the approach taken by other courts. In Lampman the arresting officer explained the California chemical test requirement of the implied consent law to the motorist on four separate occasions and requested her to submit to a test. Each time she remained mute. The court held that silence under those circumstances constituted a refusal under the California .implied consent statute. Relying upon an earlier California case, Cahall v. Department of Motor Vehicles, supra, in which a refusal had been found on the basis of a motorist’s statement, in response to a request to take a test, that “I’m not even going to give you an answer,” the court affirmed the license revocation.

Spradling v. Deimeke, 528 S.W.2d 759 (Mo.1975), aptly stated the standard that should be applied in determining whether a driver has in fact refused to take a test. The court stated (528 S.W.2d at 766):

There is no mysterious meaning to the word ‘refusal’. In the context of the implied consent law, it simply means that an arrestee, after having been requested to take the breathalyzer test, declines to do 30 of his own volition. Whether the declination is accomplished by verbally saying, T refuse’, or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make any difference. The volitional failure to do what is necessary in order that the test can be performed is a refusal.

Mills v. Swanson, 93 Idaho 279, 460 P.2d 704 (1969), relied upon in the main opinion in Hyde as authority for requiring an express verbal refusal, is not in fact inconsistent with the rule above stated, since it dealt with a fact situation involving a dazed or injured driver. In Mills the court stated, 460 P.2d at 706:

We emphasize however that the question as to what constitutes a refusal to take the test must depend on the circumstances. In the case at bar, respondent, injured and in a dazed state, failed to respond to the officer’s request. Under these circumstances it cannot be said that silence constituted a refusal to submit to a chemical test for determining the alcohol content in the blood. If the officer was in doubt he could have requested the respondent to sign a written authorization and waiver for the administration of the test. [Emphasis added.]

Mills does not preclude an officer or a trier of fact from making a realistic appraisal of a motorist’s behavior when he fails to give an unequivocal verbal answer to a request to take a test.

Clearly the loss of driving privileges is a severe deprivation that may have serious consequences for an individual, not the least of which is the possible loss of employment. Accordingly, it is important that a law enforcement officer make a determination that a motorist has refused to take a test on the basis of conduct which clearly indicates a volitional refusal with an understanding of the consequences that follow upon a refusal. However, an officer “is not required to know the state of mind of the person arrested and determine whether such person understood he was refusing to submit to the test”; necessarily that judgment must be made under an objective standard, Strand v. State Department of Motor Vehicles, 8 Wash.App. 877, 509 P.2d 999, 1002 (1973). If there is doubt, it may be advisable for an officer to request a motorist to sign a document attesting to his refusal to take a test, or actually to present the test implements to the motorist. However, such actions are not mandatory,⁶ but rather an additional step which an officer may take in an effort to clarify the response of the motorist if there is genuine, confusion caused by trauma.

In the instant case the officer read the implied consent statute verbatim to the plaintiff, and on two subsequent occasions the officer explained to the plaintiff the consequence of refusing to take a test. Applying an objective standard, Strand v. State, supra, to whether plaintiff understood the consequences of his actions, there can be no question that the plaintiff was adequately informed and that any reasonable person would have understood. The trial court’s conclusion that the plaintiff had a “misconception” can only be founded upon the plaintiff’s testimony that he relied upon his asserted understanding of California law in subjectively concluding that he would have still another opportunity, after the fourth request, to take a test. That view of California law is certainly questionable in the light of the California law above cited, but in any event the officer did all that was required of him, and the trial court’s conclusions are adequately supported by the evidence- and its order of revocation decided under a proper legal standard.

The judgment of the trial court is affirmed.

CROCKETT, C. J., and WILKINS and HALL, JJ., concur.

1 . U.C.A. refers to Utah Code Annotated, 1953, as amended. The particular section in question appears in the 1977 supplement.

2 . The findings of fact indicate he was asked to take the test three times. These findings apparently do not include the one time at the jail.

3 . In any event, it was incumbent on plaintiff at that time affirmatively to ask that the test be administered. Under the Utah statute it is necessary that after a refusal the motorist be told that he may lose his license if he does not then request the administration of a test. Section 41-6-44.10(b).

4 .Section 41-6-44.10(c).

5 . It should be noted that the 1977 amendments to the Implied Consent Statute expressly state an arrested person does not have the right to consult an attorney or to have his physician present as a condition to taking the test. Section 41-6-44.10(g), U.C.A., 1953, (1977 Pocket Supplement). This amendment has the effect of overruling several prior Utah cases involving a motorist’s demand that an attorney or physician be present, i. e., Hunter v. Dorius, 23 Utah 2d 122, 458 P.2d 877 (1969); Gassman v. Dorius, Utah, 543 P.2d 197 (1975); Peterson v. Dorius, Utah, 547 P.2d 693 (1976).

6 . Lampman v. Department of Motor Vehicles, supra, 105 Cal.Rptr. at 104, discussed the suggestion that an officer should be required to present the test implements to a motorist in an • effort to force a clear answer. The court rejected the proposition as tending to introduce an undesirable element of force into what may be an inflammatory situation.