"Arresting officers apparently recognize that the circumstances of the arrest along with the altered mental state of a drunk driver could result in an initially rash decision, which a few minutes of reflection by a ride to a jail in a patrol car could correct."
How later courts described this case
- "Arresting officers apparently recognize that the circumstances of the arrest along with the altered mental state of a drunk driver could result in an initially rash decision, which a few minutes of reflection by a ride to a jail in a patrol car could correct."
- recognizing difficulty in "artificially categorizing jurisdictions as two separate camps"
- consent provided between five and ten minutes after prior refusal was timely recantation
Written by the judges who cited it.
The opinion
WATT, Justice,
with whom SIMMS, J. joins, dissenting.
I dissent. Today the majority adopts, by it’s own admission, the minority rule with regard to the issue of consent to the taking of a breath test. I submit, with all due respect, that this position is contrary to existing statutory law. Title 47 O.S.1991, § 753 is clear. If (1) a conscious person (2) under arrest (3) refuses to submit to testing none shall be given. Clearly the defendant met all three of the above requirements and at that instant the highway patrolman under the clear language of the statute had no further obligation to administer a test. Section 753 says “If a conscious person ... refuses to submit to testing none shall be given.” [Emphasis added.]
Under today’s pronouncement a defendant may first ignore the officer’s request and later change his mind as long as he satisfies three requirements. First, he is in custody. Second, there is testing equipment readily available. Third, he requests a breath test before the delay caused by his initial refusal materially affects the outcome of the test.
The majority’s holding gives defendants unwarranted latitude concerning when they will take a breath test. A defendant arrested for DUI is ordinarily held for a minimum of four hours. Breath testing equipment is located in the jail in most counties. A defendant may be able to wait as long as four hours after his arrest with impunity before he finally submits to the test. Thus, a defendant who was legally drunk when arrested may not be when he finally takes a breath test.
The majority opinion will create another kind of mischief. A defendant may create a defense to revocation if he requests, but is denied, a breath test after having earlier refused to take one. The problem is graphically demonstrated in Application of Kunneman, 501 P.2d 910, 912 (Okla.App.1972), released by the Supreme Court for official publication Sept. 25, 1972. In Kunneman, the arresting officer testified that he refused the defendant’s request to a breath test because he had asked the defendant to submit five times earlier, and didn’t believe the defendant meant to submit after he made his request. The Court of Appeals held, properly in my view, that the defendant could not claim to have been wrongfully deprived of a right to a breath test “as he had refused to submit to the test in the first instance.” The rule announced by the majority of this Court today would require a result different than that reached by the Court of Appeals in Kunneman.
*407 The Minnesota Court of Appeals interpreted a statute containing the language of § 753 that, if a test is refused, “none shall be given.” Mossak v. Commissioner of Public Safety, 435 N.W.2d 578 (Minn.App.1989). Mossak requested a test five to ten minutes after having refused a request that he take one. The court held that the Minnesota statute and the cases interpreting it “preclude us from applying a flexible rule such that a refusal could not be found in the circumstances of this case.” Mossak, id. 435 N.W.2d at 579 .
The approach taken by the majority today makes bad law. It represents flaccidity, not flexibility. Satisfying its requirements will involve the courts in a time consuming examination of time frames and officer availability. Worse, it will require police officers to remain off the street for so long as it takes a defendant to make up his mind about taking a test.'
The majority rule rejected by this Court’s majority opinion today is the better rule. The police officer, who is sober, not the defendant who has, after all, just been arrested for drunkenness, should have the discretion to decide when the defendant has refused the test. The majority rule prevents the defendant from manipulating the process by later complaining that he really requested but was denied a test.
I submit that the legislature did not have such a result in mind when it passed § 753. Today’s pronouncement casts a cloud upon a clearly defined statutory statement of public policy enacted by the people of this state through their elected representatives that they want those who refuse a test to be subject to mandatory suspension of their driving privileges. I cannot accede to this position in light of the clear dictates of § 753.