Virgil v. State

PERRY, Judge,

dissenting.

Because I believe the majority of this Court has strained the reading of the I.C. § 18-8002 notification form beyond any reasonable interpretation, I respectfully dissent.

In dealing with paragraph 4(a), the majority must leap from the first phrase to the last clause in its attempt to find an ambiguity. Section 4(a) clearly states that if a person refuses to take or complete an evidentiary test, his driver’s license will be seized. Once seized by the officer, however, that license will be replaced by a temporary permit unless one of two exceptions apply. The first being that the license is already suspended; the second being that the license is of a particular class. I find the reading by the majority that the phrase “unless you have a Commercial driver’s license class A, B or C” relates back to and modifies whether a person’s license will be seized, rather than whether a temporary permit will be issued, strains any reasonable interpretation of the notification.

Secondly, the majority concludes that the phrase “ ‘show cause,’ more accurately conveys the driver’s burden of proof at the suspension hearing than does the phrase, ‘explain why.’ ” Though I may concede that at times one phrase may be more accurate than another, I disagree that, in this circumstance, the use of the phrase “explain why” leads to the further conclusion by the majority that Virgil was not properly advised pursuant to I.C. § 18-8002(3). A driver is notified that the burden of proof to justify a refusal is placed upon him at the evidentiary hearing. The attempt by the state to use terms more understandable to a lay person, without the use of confusing “legalese,” has not, in my view, misrepresented the intent of I.C. § 18-8002(3).

I conclude that the current notification complies with this Court’s ruling in Beem that the information be set forth “in no uncertain terms.” Therefore, I would affirm the magistrate’s order suspending Virgil’s driver’s license.