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Baldwin v. State ex rel Dept. of Public Safety3/30/1993
On September 5, 1991, the Department of Public Safety, appellant, revoked the driving privileges of Michael L. Baldwin, the appellee, for a period of one year pursuant to the Implied Consent Law. The appellee had refused to take a test to determine the alcohol content of his breath. The appellee appealed his revocation to the district court. The district court vacated the order of the appellant and restored the appellee's drivers license. The Court of Appeals reversed and remanded with instructions to deny the appellee's petition. Certiorari was granted to decide whether the blood or breath test has been refused if a motorist initially declines the test but reconsiders and asks to take the test shortly thereafter. We hold that the motorist has not refused the test if the assent is timely and given unequivocally.
The following facts are taken from the findings of facts by the trial judge. On July 17, 1991, in Lincoln County, an Oklahoma Highway Patrol trooper made a valid probable cause stop and arrest of the appellee. The stop was made about eighteen miles from the Lincoln County Sheriff's office. The trooper asked the appellee to take a breathalyzer or blood test to determine the alcohol level in the appellee's blood. The appellee asked to speak to a lawyer, but the trooper responded that no such right existed relative to his consent or refusal to take the test. The appellant then refused the test. He was readvised of his rights under the Implied Consent Law and again refused. The trooper took him to the Lincoln County Sheriff's office.
Upon their arrival, before the appellee was placed in a cell and before the arresting officer filled out the "Officers Affidavit and Notice of Revocation" the appellee told the trooper that he wished to take the breathalyzer test. The trooper replied that the appellee was too late and refused to administer the test. The officer then completed his affidavit required by 47 O.S. 1991 § 754 . The trial court found that the appellee offered to take the test almost immediately after being transported to the location of the breathalyzer machine. He further found that the officer was neither delayed in performing his duties nor required to wait to determine if the appellee would change his mind.
The trial transcript reveals that the time between the appellee's initial refusal and his subsequent recantation was between five and ten minutes. The officer testified that if the test had been administered when the appellee requested it, the test would have remained valid. He testified that other than the policy of not administering the test after a refusal, the test could have been administered. The appellee was still in the custody of the arresting officer.
Title 47 O.S. 1991 § 753 provides in pertinent part:
If a conscious person under arrest refuses to submit to testing of his or her blood or breath for the purpose of determining the alcohol concentration thereof, or to a test of his or her blood, saliva or urine for the purpose of determining the concentration of any other intoxicating substance, or the combined influence of alcohol and any other intoxicating substance, none shall be given. . . .
The appellant argues that the statute is clear and unambiguous, that if a motorist refuses the test he cannot subsequently change his mind and be tested. The appellant asserts that even if the statute is ambiguous or uncertain, the interpretation by the agency, appellant, is entitled to the highest respect from the courts, especially when the administrative construction is definitely settled and uniformly applied for a number of years. But the issue before this Court involves the definition of the word "refusa
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