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Baldwin v. State ex rel Dept. of Public Safety3/30/1993
revocation if he requests, but is denied, a breath test after having earlier refused to take one. The problem is graphically demonstrated in Application of Kunneman, 501 P.2d 910, 912 (Okla. App. 1972), released by the Supreme Court for official publication Sept. 25, 1972. In Kunneman, the arresting officer testified that he refused the defendant's request to a breath test because he had asked the defendant to submit five times earlier, and didn't believe the defendant meant to submit after he made his request. The Court of Appeals held, properly in my view, that the defendant could not claim to have been wrongfully deprived of a right to a breath test "as he had refused to submit to the test in the first instance." The rule announced by the majority of this Court today would require a result different than that reached by the Court of Appeals in Kunneman.
The Minnesota Court of Appeals interpreted a statute containing the language of § 753 that, if a test is refused, "none shall be given." Mossak v. Commissioner of Public Safety, 435 N.W.2d 578 (Minn.App. 1989). Mossak requested a test five to ten minutes after having refused a request that he take one. The court held that the Minnesota statute and the cases interpreting it "preclude us from applying a flexible rule such that a refusal could not be found in the circumstances of this case." Mossak, id. 435 N.W.2d at 579.
The approach taken by the majority today makes bad law. It represents flaccidity, not flexibility. Satisfying its requirements will involve the courts in a time consuming examination of time frames and officer availability. Worse, it will require police officers to remain off the street for so long as it takes a defendant to make up his mind about taking a test.
The majority rule rejected by this Court's majority opinion today is the better rule. The police officer, who is sober, not the defendant who has, after all, just been arrested for drunkenness, should have the discretion to decide when the defendant has refused the test. The majority rule prevents the defendant from manipulating the process by later complaining that he really requested but was denied a test.
I submit that the legislature did not have such a result in mind when it passed § 753. Today's pronouncement casts a cloud upon a clearly defined statutory statement of public policy enacted by the people of this state through their elected representatives that they want those who refuse a test to be subject to mandatory suspension of their driving privileges. I cannot accede to this position in light of the clear dictates of § 753.
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