Hyde v. Dorius

¶1On appeal is a judgment of the trial court sustaining a trial examiner’s revocation of plaintiff’s driver’s license. We reverse, for the reason plaintiff’s license is not subject to revocation.

¶2In this matter, the affidavit of the officer states that plaintiff was’ arrested at 9:45 a. m. and the time of her refusal was 9:50 a. m. According to the arresting officer, Nichols, he and a fellow officer removed plaintiff from her vehicle, placed her under arrest, handcuffed her and put her in a police car. Officer Nichols testified they left her in the police vehicle alone for four or five minutes. Then he and Officer Hales returned to the vehicle and Hales informed her of the implied consent law. Plaintiff’s response was that she wouldn’t listen, and that the police didn’t know what they were talking about.

¶3Officer Nichols conceded that he never detected alcohol on plaintiff. He described her responses in the car as requesting the removal of the handcuffs, crying, screaming and belligerent, and asserting that they could not arrest her on private property. Plaintiff was taken to the jail where Officer Nichols gave her two field agility tests; she performed fairly well on the straight line test, but she had difficulty hopping. (Mrs. Hyde who is 55 years old testified that she is unable to hop.)

¶4The affidavit of refusal was based strictly on what occurred in the vehicle within a period of approximately five minutes when the plaintiff was concededly extremely upset. Plaintiff was never again proffered an opportunity to take one of the chemical tests, although she participated in the field sobriety tests at the jail. Officer Nichols testified that he executed the affidavit of refusal on the basis of the statement of Officer Hales that plaintiff’s responses constituted a refusal.

¶5Under the circumstances here, four or five minutes is not a reasonable time within which to expect a sentient consent or refusal; particularly when the court found that, at the scene, plaintiff was upset, irritated and scared as a result of the accident and accompanying events.

¶6The trial court ruled that once plaintiff had been advised of the implied consent, any response other than agreement to take the test was a constructive refusal.

¶7The construction by the trial court does not accord with the express provisions of Section 41-6-44.10, U.C.A.1953. Subsection (a) of this statute provides in mandatory language: “Any person operating a motor vehicle in this state shall be deemed to have given his consent . . ..” Subsection (b) provides: “Any person operating a motor vehicle in this state shall be determined to have given his consent ..” Subsection (d) provides: “Any person who is dead, unconscious, or in any other condition rendering him incapable of refusal to submit to any such chemical test or tests shall be deemed not to have withdrawn the consent provided for in subsections (a) or (b) of this section. ...”

¶8*453In contrast subsection (c) provides:

If such person has been placed under arrest and has thereafter been requested to submit to any one of the chemical tests provided for in subsections (a) or (b) of this section and refuses to submit to such chemical test, the test shall not be given . . .. [Emphasis supplied.]

¶9In State v. Bock 1 the court construed an implied consent statute, with provisions similar to Section 41-6-44.10. The court contrasted the provisions of the Idaho statute (Section 49-352, I.C.), with a North Dakota statute (39-0801, N.D.R.C.1953, Sup.), which specified “no defendant shall be required to submit to any chemical test without his consent.” The court stated:

: . . Our statute is different. By operating a motor vehicle in this state the defendant is “denied to have given his consent to a chemical test”. The only way he can withdraw that consent is to expressly refuse the test. So under our law if he neither refuses nor consents, expressly, the test may be made.

¶10Our Utah statute so requires.

¶11In Mills v. Swanson,2the court elaborated on the holding in State v. Bock by explaining that “expressly” meant in direct or unmistakable terms, by means declared and not merely left to implication. The court stated that what constituted a refusal to take the test must depend on the circumstances. It was suggested that if an officer were in doubt he could request a person to sign a written authorization and waiver for the administration of the test.

¶12A review of the entire record reveals that there was an insufficient evi-dentiary basis to sustain the finding that plaintiff “refused to submit” to the chemical tests. The sole ground upon which the court’s finding was predicated was her alleged constructive refusal which is not consonant with the legislative intent expressed in Section 41-6-44.10.