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Stout v. McCullion11/27/1990
aintiff was stalling and that the plaintiff was granted several requests to use the telephone. However, this court reversed the decision in Lawton precisely for the reason that the referee therein failed to reach a finding as to whether there had been a refusal by the plaintiff. Therefore, that distinction becomes unimportant.
As to the fact that the plaintiff in Lawton was permitted to make several telephone calls, that distinction does not support the referee's conclusion. We held in Lawton that the police officer was required to inform the plaintiff that no further use of the telephone would be allowed and that the plaintiff had to make a decision as to whether he would refuse to take the test without thsadvice of his counsel. That requirement becomes even more essential in a case such as this, where the petitioner has been permitted to make only one phone call. Although the trooper testified that he believed petitioner's conduct constituted a refusal, we find that he should have first informed petitioner that no more calls would be permitted and that petitioner must make an immediate decision whether or not to submit to the test. We so held in Lawton and find no reason not to apply that principle herein since this is a more compelling case than Lawton.
For the foregoing reasons, petitioner's single assignment of error is sustained, the judgment of the Franklin County Municipal Court is reversed, and this cause is remanded to that court for further proceedings in accordance with law and this decision.
Judgment reversed and cause remanded.
MCCORMAC and JOHN C. YOUNG, JJ., concur.
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