Currier v. State, Dept. of Motor Vehicles, 5303-I

• Decision Date: 08 May 1978
• Docket Number: No. 5303-I,5303-I
• Citation: 578 P.2d 1325,20 Wn.App. 16
• Parties: John Robert CURRIER, Appellant, v. STATE of Washington, DEPARTMENT OF MOTOR VEHICLES, Respondent.
• Court: Washington Court of Appeals

Page 16

20 Wn.App. 16

578 P.2d 1325

John Robert CURRIER, Appellant, v. STATE of Washington, DEPARTMENT OF MOTOR VEHICLES, Respondent.

No. 5303-I.

Court of Appeals of Washington,Division 1.

May 8, 1978.

Johnston & Neal, Inc., P.S., Levy S. Johnston, Mountainlake Terrace, for appellant.

Slade Gorton, Atty. Gen. of Wash., James R. Silva, Asst. Atty. Gen., for respondent.

JAMES, Judge.

Acting pursuant to RCW 46.20.308, the "implied consent" statute, the Washington State Department of Motor Vehicles suspended John Currier's driver's license for refusing to submit to a Breathalyzer test. Currier appeals from an Island County Superior Court judgment which upheld the action of the Department.

On May 4, 1975, Currier was arrested by a Washington State Patrol officer for driving while under the influence of alcohol. He was taken to Island County Jail where he was advised of his Miranda rights and given the implied consent warnings as required by RCW 46.20.308. Currier asked to call an attorney and was informed that the call must be placed collect even though he had sufficient cash to pay for the call. He became angry and refused to make a collect call. He admits he was highly intoxicated at the time.

When the arresting officer offered him the Breathalyzer test, Currier refused. During the subsequent booking procedures, the county sheriff told Currier that his refusal to take the Breathalyzer test would result in an automatic 6-month suspension of his driver's license. Currier claimed he was unaware of the consequences of his earlier refusal and requested the Breathalyzer test. His request was refused. The sheriff told Currier that the test had to be administered in the presence of the arresting trooper who had departed 10 to 15 minutes earlier.

Currier contends the court erred in finding that he refused the Breathalyzer test. He argues first that he was not given an opportunity to make an intelligent decision and second that the sheriff should have administered the test at Currier's request after the trooper had left. We do not agree.

A driver advised of his rights under the implied consent law is deemed to have had an opportunity to exercise his intelligent judgment unless he objectively and unequivocally manifests that he does not understand. Strand v. Department of Motor Vehicles, 8 Wash.App. 877, 509 P.2d 999 (1973). The burden of showing that he made his confusion apparent to the administering officer is upon the driver. Strand v. Department of Motor Vehicles, supra. It is not a defense that a conscious driver is too intoxicated to understand the advice and respond intelligently. Department of Motor Vehicles v. Riba,10 Wash.App. 857, 520 P.2d 942 (1974); Department of Motor Vehicles v. McElwain, 80 Wash.2d 624, 496 P.2d 963 (1972); Junkley v. Department of Motor Vehicles, 7 Wash.App. 827, 503 P.2d 752 (1972).

In this case, there is evidence that Currier was conscious, that he was properly advised of his rights under the implied consent statute and thereafter objectively refused the test. There is no evidence that he objectively communicated a lack of understanding to the trooper. The trial court correctly concluded that Currier refused the Breathalyzer test.

Currier next contends that even though he initially refused the test, his change of mind and later request to take the test nullified his initial refusal. We find nothing in the statute that would require the sheriff to administer the test once there has been a refusal. To the contrary under the statute, even if the sheriff had allowed Currier to take the test, it would not have changed the effect...