Conrad v. Schwendiman , 1984 Utah LEXIS 796 ( 1984 )

HOWE, Justice

(dissenting).

I dissent.

U.C.A., 1953, § 41-6-44.10(f), which is set out in full in footnote 8 of the majority opinion, extends to the arrested driver the right to have a physician of his own choice administer a chemical test in addition to the test administered at the direction of the arresting peace officer. I agree with the statement in the majority opinion that “this language places no duty on the arresting officer to affirmatively inform an arrested driver who has refused a breathalyzer test that he can have a subsequent blood test performed by his own physician.”

That statement, however, does not address the question presented here. The arresting officer testified that the plaintiff twice offered to submit to a blood test but the officer replied, “I can’t offer that to you.” He explained that blood tests could be given only where there had been an accident and serious bodily injury or a fatality had resulted. The plaintiff told the officer that he thought blood tests were more accurate than breath tests. Thus it is clear that the plaintiff brought up the subject of a blood test and twice requested one. Since the plaintiff clearly had the right to a blood test, the answer of the officer was a misleading half-truth. The officer had the plaintiff handcuffed and in custody and should have informed him when he offered to submit to a blood test that he could obtain one after the breathalyzer test was given him. Instead, plaintiff was given a categorical “no” which was not a complete and fully truthful answer to his request.

The plaintiff obviously had confidence in blood testing. Had the officer not misinformed him, he might well have been willing to submit to a prior breathalyzer test since he would have had a check on its reliability. In Holman v. Cox, Utah, 598 P.2d 1331 (1979), the appellant’s driver’s license was revoked for his refusal to submit to a chemical test. He contended that because he had been arrested, had had his Miranda rights read and at the same time had been asked to take the chemical test, he was not clear as to his legal rights under the circumstances. We stated:

When the driver manifests to the officer that he does not understand his duty under the implied consent law in light of the Miranda warning, the officer has a responsibility to clarify the driver’s rights and responsibilities. If a driver’s response indicates that he is refusing or postponing the chemical test under the mistaken impression that he is merely asserting a legal right which he thinks he may have under Miranda, it is incumbent on the arresting officer to explain unequivocally to the motorist that the rights explained in a Miranda warning to remain silent and to consult an attorney do not apply to the decision to take a chemical test.

Id. at 1333-34 (emphasis added). We reversed the judgment revoking the appellant’s driver’s license and remanded the case for further findings of fact. We held that “fairness and due process require that a person threatened with the loss of his driver’s license should be afforded an opportunity to make a choice based on a fair explanation of his rights and duties.”

While the plaintiff here was not relying on his Miranda rights, he did make two clear requests that he be allowed a blood test. The arresting officer’s responses were not an adequate and fair explanation of his rights. Holman v. Cox, supra, unquestionably requires a reversal of the judgment revoking his license.

DURHAM, J., concurs in the dissenting opinion of HOWE, J.