Hunter v. Dorius ( 1969 )

TUCKETT, Justice.

The defendant appeals from a judgment ■of the district court reversing an order of the defendant revoking the plaintiff’s driver’s license for a period of one year.

The plaintiff was involved in a one-car .accident on Interstate Highway 80 on August 24, 1968, at the hour of approximately •8:00 p. m. A highway patrolman, one Bill Himes, arrived at the scene of the accident .at approximately 8:30 p. m. The patrolman placed the plaintiff under arrest at the scene and thereafter took him to the highway patrol station, arriving there about '9 :15 p. m. At the station the patrolman requested the plaintiff to submit to a sobriety test in accordance with the provisions of Section 41-6-44.10, U.C.A.1953, as amended, •which reads as follows:

(a) Any person operating a motor vehicle in this state shall be deemed to have given his consent to a chemical test of his determining the alcoholic content of his blood, provided that such test is administered at the direction of a peace officer having reasonable grounds to believe such person to have been driving in an intoxicated condition. The arresting officer shall determine within reason which •of the aforesaid tests shall be administered. If such person has been placed under arrest and has thereafter been requested to submit to any one of the above chemical tests and refuses to submit to such chemical test, the test shall not be given and the arresting officer shall advise the person of his rights under this section. Within twenty days after receiving an affidavit from the arresting officer to the effect that such person has refused a chemical test the department shall notify such person of a hearing before the department. If at said hearing the department determines that the person was granted the right to submit to a chemical test and without reasonable cause refused to submit to such test, or if such person fails to appear before the department as required in said order, the department shall revoke, for one year, his license or permit to drive. ^

The plaintiff asked and was granted time to contact his attorney before deciding whether or not to take the test. The plaintiff attempted to contact his attorney by phone but was unable to do so. Plaintiff continued to try to obtain legal counsel for approximately one-half hour, during which time the patrolman having him in custody urged him to submit to the test or decline the same. At 9:48 p. m., the patrolman advised the plaintiff as to his rights pursuant to the terms of the statute and the consequences of a refusal to submit to a sobriety test. At 10:05 p. m. the officer completed an affidavit to the effect that the plaintiff had refused the chemical test referred to in the statute. Shortly thereafter a member of the firm of lawyers who had represented the plaintiff in other matters called the patrol station and advised the plaintiff to submit to the chemical test and also informed the officer that the plaintiff would submit to the test, but the patrolman refused to take steps to accomplish that purpose.

Based upon these facts the trial judge made a finding that the plaintiff had not refused to submit to the chemical test required by the statute. It is conceded by the defendant that the plaintiff had a right to consult legal counsel before making a decision to take or decline the test. After the plaintiff had been advised as to his rights under the statute and the consequences of his refusal to submit to a test at the hour of 9:48 p. m., the plaintiff still had a reasonable time in which to make up his mind and to seek legal counsel.

The decision of the lower court is amply supported by the evidence and is affirmed. No costs awarded.

CALLISTER, J., ALLEN B. SOREN-SEN, District Judge, concur.