Standish v. Department of Revenue, Motor Vehicle Div., 56147
| Decision Date | 13 July 1984 |
| Docket Number | No. 56147,56147 |
| Citation | 683 P.2d 1276,235 Kan. 900 |
| Parties | Scott F. STANDISH, Appellee, v. DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An initial refusal to take a chemical test to determine the alcohol content of the blood of one arrested for driving while under the influence of alcohol may be changed or rescinded. To be effective, the subsequent consent must be made: (1) within a very short and reasonable time after the prior first refusal; (2) when a test administered upon the subsequent consent would still be accurate; (3) when testing equipment is still readily available; (4) when honoring the request will result in no substantial inconvenience or expense to the police; and (5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.
2. A conditional response such as, "I want to talk to my attorney (or parent or relative or friend or some other third person) first," is not a consent to take a breath or blood test. It is a refusal.
3. The Miranda warnings should be given to one who is arrested or taken into custody for misdemeanor offenses, including the offense of driving while under the influence of alcohol.
4. Additional information which should be given by the arresting officer to persons arrested or taken into custody for driving while under the influence of alcohol, is stated.
5. A person who is arrested for driving while under the influence of alcohol has no constitutional right to consult with counsel in order to determine whether to submit to a chemical test to determine the alcohol content of his or her blood.
Brian Cox, of the Dept. of Revenue, Kansas City, argued the cause, and William L. Edds, Gen. Counsel, Kansas City, was with him on the briefs for appellant.
Phillip Eugene Porter of Keenan, Mauch & Keenan, P.A., Great Bend, argued the cause and was on the brief for appellee.
This is an appeal by the Department of Revenue from an order of the Barton District Court reversing an administrative order suspending the driver's license of Scott F. Standish. The Department raises but one issue on appeal: whether an initial refusal to submit to a lawfully requested chemical test of breath to determine the alcoholic content of the blood, K.S.A. 8-1001, may be "rescinded" by subsequent consent.
Sometime during the night of September 17, 1982, Standish was driving west on 10th Street in Great Bend. Officer Buczinski saw the Standish vehicle strike the curb three or four times and move back and forth between the curb and the center line. The officer stopped Standish and immediately noticed the odor of intoxicants on his breath. Standish was given a field sobriety test and failed. Next, the officer advised Standish of his rights by reading him the Miranda warnings. The officer then asked Standish to take a breathalyzer test. Standish responded that he would like to talk to his attorney first. The officer then placed Standish in his vehicle and took him to the Great Bend police department. Standish attempted to telephone his attorney but was unable to reach him. The officer asked him what he wanted to do and Standish said that without talking to his attorney he could not take the breathalyzer test. The officer then told him "that he might stand a chance of losing his license for some time," and Standish responded that he was sorry but he could not take a breathalyzer test without consulting his attorney first. Officer Buczinski then took Standish to the Barton County jail. Officer Buczinski left the jail and returned to duty. Within fifteen to thirty minutes Standish talked to the jailer and asked him, "Am I going to take this test or what?" And the jailer said, "It is too late now." The jailer did not call Officer Buczinski and ask him to return to the jail. The officer testified that if Standish had changed his mind while he was still in the officer's custody, he would have administered the test and would not have sent in a refusal report.
An administrative law judge found that Standish had refused to submit to a chemical breath test and suspended his driving privileges for 120 days. Upon appeal to the Barton District Court, that court, after evidentiary hearing, held that Standish within a reasonable time rescinded his refusal to take the test, and that had the officer been made aware of this the test would have been given. The court concluded that Standish did not ultimately refuse because his initial refusal was rescinded within a reasonable time. Therefore, the order suspending his driving privileges was reversed.
K.S.A. 8-1001 provides:
The statute continues:
There is nothing within the statute regarding the right of a person so arrested to change his mind and "rescind" a refusal to take the test. We have carefully considered the arguments of the parties and cases from other jurisdictions. See, for example, Covington v. Department of Motor Vehicles, 102 Cal.App.3d 54, 162 Cal.Rptr. 150 (1980); Asbridge v. North Dakota State Highway Com'r, 291 N.W.2d 739 (N.D.1980); Peterson v. State, 261 N.W.2d 405, 410 (S.D.1977); Hoffman v. Iowa Dept. of Transp., 257 N.W.2d 22 (Iowa 1977); Lund v. Hjelle, 224 N.W.2d 552, 557 (N.D.1974); and Annot., Request Before Submitting to Chemical Sobriety Test to Communicate with Counsel as Refusal to Take Test, 97 A.L.R.3d 852.
The chemical testing system provided under our implied consent law is important because it provides the best available and most reliable method of determining whether a driver is "under the influence" of alcohol. It protects both the accused and the public. A refusal to submit to the test, on the other hand, invokes serious consequences for the person arrested. We believe that the administration of the test should be encouraged and the person arrested should be given every reasonable opportunity to submit to it. For this reason, we hold that an initial refusal may be changed or rescinded, and if rescinded in accordance with the following rules, cures the prior refusal. To be effective, the subsequent consent must be made:
(1) within a very short and reasonable time after the prior first refusal;
(2) when a test...
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