The opinion
Judge CLARK
concurring.
The ruling and language in the case sub judice and the Seders case should not be interpreted as meaning that, as a matter of law, there was a willful refusal to submit to the chemical test because of an omission or failure to do so within or immediately after the thirty-minute period. The State has the burden of proving that such omission or failure constituted a willful refusal.
In Seders the evidence supported the findings of fact which in turn supported the conclusion that the driver willfully refused to take the test.
In the case sub judice, the evidence supported the findings of fact, but the findings of fact did not support the conclusion that there was no willful refusal. There were some contradictions in the evidence, which placed on the trial court the duty of resolving these contradictions by finding facts. Petitioner testified that he was relying on the clock in the magistrate’s office, that there was a discrepancy between the patrolman’s watch and the clock, and that he did not know the thirty-minute period had expired when he agreed to take the test. In my opinion this evidence would have supported a finding by the trial court that the time period had not expired, or that though it had expired the defendant in *365 good faith did not know the time period had expired when he agreed to take the test. Such finding would support the conclusion by the court that there was no willful refusal. Instead, the court made findings which negated petitioner’s evidence and established “a conscious choice purposefully made” (quoting from Seders) and thus erred in concluding that there was no willful refusal.
Willful refusal is a necessary requirement under G.S. § 2046.2(c), and the trial court has the duty of judicially determining this question. See Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226 , 182 S.E. 2d 553 (1971).