Lund v. Hjelle , 1974 N.D. LEXIS 139 ( 1974 )

KNUDSON, Judge.

This is an appeal by the State Highway Commissioner from an order of the district court reversing the Commissioner’s order revoking James Lund’s driver’s license. The Commissioner had issued an order revoking Lund’s driver’s license for six months for refusing to submit to a chemical test to determine the alcoholic content of his blood. Lund had appealed to the district court from the Commissioner’s order.

On December 24, 1973, at approximately 8:00 p. m., Lund was involved in a single car accident. Lund phoned the Fargo Police Department, and Officer Cummings arrived at the accident scene at approximately 8:10 p. m. Observing that Lund’s speech was slurred and that there was the smell of alcohol on his breath, the officer placed Lund under arrest for driving while under the influence of intoxicating liquor. Officer Cummings took Lund to St. Luke’s Hospital for a chemical blood test to determine the alcoholic content of his blood, which test Lund had agreed to take, but upon arrival at the hospital Lund refused to submit to the test.

Officer Cummings then went to the police station, with Lund in custody, where Officer Cummings made his report of the accident. Lund made several telephone calls, finally contacting his insurance agent, who advised Lund to take the chemical blood test. Lund thereupon informed Officer Cummings that he would take the chemical blood test, but the officer declined to permit him to take the chemical blood test. This request by Lund was made at approximately 9:30 p. m., about one hour after Lund’s arrest at 8:30 p. m.

Lund was released on bail at approximately 9:30 or 10:00 p. m., and he then went directly to St. Luke’s Hospital where he had a chemical blood-alcohol test taken. After he got home he was informed that the test could not be used because an alcohol swab had been used. Lund then walked back to the hospital where a second chemical blood-alcohol test was taken at 11:30 p. m.

Officer Cummings filed a report with the State Highway Commissioner showing that he had placed Lund under arrest as he had reasonable grounds to believe that Lund had been driving or was in actual physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor and that Lund had refused to submit to a chemical test to determine the alcoholic content of his blood.

A hearing was held at Lund’s request on February 4, 1974, before a hearing officer for the Highway Department, who ordered that Lund’s driver’s license be revoked for six months. Lund appealed to the district court, which reversed the Highway Commissioner’s order on the ground:

“That the appellant had reservations about taking the blood test until he was made aware of his legal rights; that the appellant was unable to accomplish this on Christmas Eve until approximately one hour after the officer directed him to take the test; that this time lapse was occasioned by the appellant’s failure to contact his attorney or other persons from whom he sought advice, notwithstanding many telephone calls; that the defendant changed his mind and agreed to submit to a blood test within a reasonable time after his refusal and after he had sought and secured advice in connection therewith and in doing so he did not discommode anyone; that the test was directed to be taken by the officer and that the appellant within a reasonable time after the direction offered to take the test and that the officer refused to administer the same; therefore, there was no refusal on the part of the appellant to take the test;”

This appeal presents the question: Whether a first refusal by a person to submit to a chemical blood test for the purpose of determining the alcoholic content of his blood under the implied consent law may be remedied by a later consent to take the chemical blood test within a reasonable time while under the continuous custody of the police.

The statute primarily involved here is Section 39-20-04, North Dakota Century Code, which provides, in pertinent part, as follows:

“If a person under arrest refuses to submit to chemical testing, none shall be given, but the state highway commissioner, upon the receipt of a sworn report of the law enforcement officer showing that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways while under the influence of intoxicating liquor, and that the person had refused to submit to the test or tests, shall revoke his license or permit to drive and any nonresident operating privilege for a period of six months . . ..”

The provisions of the Administrative Agencies Practice Act, Chapter 28-32, N.D. C.C., are applicable to orders of the State Highway Commissioner revoking driver’s licenses. Agnew v. Hjelle, 216 N.W.2d 291 (N.D.1974).

The district court’s and this court’s review of fact questions in cases governed by the Administrative Agencies Practice Act is “limited to determining whether there is substantial evidence in the record to support the hearing officer’s findings of fact. Borman v. Tschida, 171 N.W.2d 757 (N.D.1969).” Agnew v. Hjelle, supra, 216 N.W.2d at 294.

The issue was whether Lund refused to submit to the test or tests. Officer Cummings testified at the hearing that Lund at first agreed to submit to a blood test, but that he changed his mind after they reached the hospital and refused to submit to the test. Lund testified that he had at first agreed, then refused, but, after making several phone calls, he changed his mind and requested the police officer to give the test to him.

The district court found that Lund had reservations about taking the blood test until he was made aware of his legal rights and that, due to his inability to contact his attorney or others from whom to seek advice, he was unable to accomplish this until about an hour after he was directed to take the test. Such a finding, however, does not support reversal of a driver’s license revocation under Chapter 39 — 20, N.D.C.C. Proceedings under the Implied Consent Law are civil in nature and, there being no right to counsel in a civil proceeding, refusing to submit to a chemical test until counsel is consulted is an unreasonable refusal. See Agnew v. Hjelle, supra.

We now arrive at the question: Whether Lund’s subsequent consent to take the blood test to determine the alcoholic content of his blood cured his prior refusal to submit to such a test.

The Highway Commissioner relies upon Harlan v. State, 113 N.H. 194, 308 A.2d 856 (1973). There the plaintiff was arrested and charged with driving while under the influence of intoxicating liquor. She initially refused to submit to a breathalyzer test, provided for in the implied consent statute, because she wished first to consult with her attorney. Unable to reach her attorney, she called her husband, who suggested that she take the test. She then requested the test, but the police officer informed her that the test would not be administered because too much time (one hour) had elapsed since her initial refusal. Her license was revoked for ninety days. The court stated, at 308 A.2d 858:

“Other courts considering whether a person properly advised by the police may rescind an initial refusal to submit to an implied consent law blood-alcohol test and demand that the test then be administered have almost unanimously concluded that the test need not be administered once a substantial period has elapsed from the initial refusal. [Citations omitted.] Those few cases holding that the driver was entitled to the test after initially refusing have been based upon the driver’s reasonable misunderstanding of his rights and responsibilities under the law due to statements made by the police. [Citations omitted.]

“We think that our implied consent statute like most others contemplates that the test be administered without unreasonable delay.”

The court concluded that plaintiff’s refusal to submit to a breathalyzer test was not cured by her offer to take the test one hour later. We do not agree with the conclusion reached by the New Hampshire Supreme Court.

In Timm v. State, 110 N.W.2d 359 (N.D.1961), we stated, at page 364:

“The object of the Legislature in enacting Section 39-20-01 was clearly to determine the alcoholic content of the blood of persons who are suspected of operating motor vehicles upon the public highways while under the influence of intoxicating beverages.”

Achievement of this object does not depend upon one of the described tests being administered immediately after arrest or immediately upon the occurrence of an event, such as an automobile accident, which gives rise to a desire to determine whether one involved in the event may have been under the influence of intoxicating liquor. There is a period of time after such an event during which the administration of a chemical test will yield an accurate indication of the alcoholic content of one’s blood at an earlier time.

“Thus, from the known length of elapsed time between the taking of the specimen for analysis and the event in issue, the known rate of average elimination of blood alcohol in the average person, and the result of the chemical test in the particular case, experts in this field can arrive by the process of extrapolation at a fairly reasonable estimate of the percentage of blood alcohol in the average person at the time of a certain event if he had the quantity of alcohol in his blood as shown by the chemical test in the case on trial.” R. Donigan, Chemical Tests and the Law, p. 46 (2d ed. 1966).

The period of time after an event during which a chemical test may be administered and which will yield an accurate indication of the alcoholic content of one’s blood at an earlier time extends for several hours. In the instant case, counsel for the Commissioner conceded that a chemical test two hours after the arrest could have been extrapolated and would be accurate.

Wanna v. Miller, 136 N.W.2d 563 (N.D.1965), was an action against a tavern owner under the Dram Shop Act. The driver of a truck which struck plaintiff was served intoxicating beverages by defendant. A specimen of the driver’s blood was taken at 5:00 a. m., on October 7, 1962. He had consumed his last alcoholic drink at 9:00 or 9:30 p. m. the evening before. This court recognized the validity of a blood-alcohol test based on a specimen of blood taken approximately eight hours after the last alcoholic drink was consumed, to show what the driver’s blood-alcohol level was at 10:30 p. m. on October 6, 1962, six and one-half hours prior to the taking of the blood specimen.

The purpose of Chapter 39-20, N.D.C.C., the Implied Consent Law, is to eliminate the drunken driver from the highways by requiring drivers suspected of operating motor vehicles while under the influence of intoxicating liquor to submit to a chemical test to determine the alcoholic content of their blood. Since the accuracy of a chemical test under Chapter 39 — 20 does not depend upon its being administered immediately after an arrest, accident or other event, and thus a delay for a reasonable period of time while an arrested person considers or reconsiders a decision whether or not to submit to a chemical test will not frustrate the object of the Legislature in enacting Chapter 39 — 20, we hold that where, as here, one who is arrested for driving while under the influence of intoxicating liquor first refuses to submit to a chemical test to determine the alcoholic content of his blood and later changes his mind and requests a chemical blood test, the subsequent consent to take the test cures the prior first refusal when the request to take the test is made within a reasonable time after the prior first refusal; when such a test administered upon the subsequent consent would still be accurate; when testing equipment or facilities are still readily available; when honoring a request for a test, following a prior first refusal, will result in no substantial inconvenience or expense to the police; and when the individual requesting the test has been in police custody and under observation for the whole time since his arrest.

For the reasons stated, the order of the district' court is affirmed.

VOGEL, PAULSON and JOHNSON, JJ., concur.