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Capstick v. State ex rel Department Of Public Safety7/27/2000
5 P.2d 1230, 1231. "The trial court is the trier of the facts, and it is within its province to determine the credibility of the witnesses and to decide the effect and weight to be given their testimony." Id.
The record reflects that the trial court gave thoughtful and thorough consideration of the evidence, vis-à-vis, the five factors of the Baldwin test. The trial court herein expressly found "the State has established by a preponderance of the evidence that the reversal [of the refusal] was not within a short and reasonable time, that the reversal [of the refusal] would have resulted in a substantial inconvenience or expense to the police and that the person was not under the observation during the entire time since arrest." These findings are supported by proper application of the law and substantial competent evidence. Factors such as a "reasonable time," "substantial inconvenience" and "sufficient observation" are best determined by the trier of the fact under the circumstances of each case and the resources available at the time of arrest and offer of the test.
In addition, the Kansas Supreme Court specially noted that the licensee in the Standish case "did not change his mind until the arresting officer had taken him . . . to jail, and until some time after the officer had left the jail and returned to his other duties." 683 P.2d at 1280. Withdrawal of refusal under such circumstances does not meet the five-factor test and is "too late." Id. As the Kansas court stressed: "The arresting officer need not sit and wait for the person to change his or her mind." Id. This would apply with equal force to a breathalyzer operator whom the arresting officer has summoned from other duties to administer the test. The very case that established the five-factor test dictates that Mr. Capstick's withdrawal of refusal was untimely.
The trial court's judgment sustaining the administrative revocation of the license of Harvey A. Capstick is AFFIRMED.
GOODMAN, C.J., and STUBBLEFIELD, J., concur.
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