Jamros v. Jensen

• Decision Date: 06 December 1985
• Docket Number: No. 85-358,85-358
• Citation: 221 Neb. 426,377 N.W.2d 119
• Parties: Richard A. JAMROS, Appellee v. Holly JENSEN, Director of the Department of Motor Vehicles, State of Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 119

377 N.W.2d 119

221 Neb. 426

Richard A. JAMROS, Appellee v. Holly JENSEN, Director of the Department of Motor Vehicles, State of Nebraska, Appellant.

No. 85-358.

Supreme Court of Nebraska.

Dec. 6, 1985.

Syllabus by the Court

1. Implied Consent Law: Appeal and Error. On an appeal from an order revoking a motor vehicle operator's license under the implied consent law, the findings of the trial court are reviewed de novo as in equity.

2. Implied Consent Law: Appeal and Error. On appeal to the district court the burden of proof is on the licensee to establish by a preponderance of the evidence the grounds for reversal.

3. Implied Consent Law: Blood, Breath, and Urine Tests. A refusal to submit to a chemical test for purposes of the implied consent law occurs when the licensee, after being asked to submit to a test, so conducts himself as to justify a reasonable person in the requesting officer's position in believing that the licensee understood that he was asked to submit to a test and manifested an unwillingness to take it.

4. Implied Consent Law: Blood, Breath, and Urine Tests. A motorist's conduct may constitute a refusal for purposes of an implied consent statute.

5. Implied Consent Law: Blood, Breath, and Urine Tests: Time. The State is entitled to have a chemical test administered at a time when it will be effective to disclose blood alcohol content in relation to the time when the vehicle was operated.

6. Implied Consent Law: Blood, Breath, and Urine Tests: Time. A delay in chemical testing is not prejudicial unless it materially affects the results of the test.

7. Implied Consent Law: Blood, Breath, and Urine Tests. Without an implied consent advisement a motorist cannot be cited for a refusal.

8. Implied Consent Law: Blood, Breath, and Urine Tests. A motorist's justifiable refusal to submit to a chemical test depends upon some illegal or unreasonable aspect in the nature of the request, the test itself, or both.

9. Implied Consent Law: Blood, Breath, and Urine Tests. Physical inability to perform a breath test may excuse conduct which might otherwise be treated as a refusal.

Robert M. Spire, Atty. Gen., and Jill Gradwohl, Lincoln, for appellant.

W.A. Stewart, Jr., of Stewart & Smith, Lexington, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

BOSLAUGH, Justice.

The director of the Department of Motor Vehicles appeals from an order setting aside her order which revoked the motor vehicle operator's license of Richard A. Jamros under the Nebraska implied consent law.

Jamros was arrested in Lexington, Nebraska, at approximately 12:39 a.m. on June 26, 1983, for driving while under the influence of intoxicating liquor. The arresting officer, Diane LeDroit Reiber, testified that she initially observed Jamros asleep in the driver's seat of his car with the motor running. The car was parked next to the curb on a street in front of a residence. Reiber awakened Jamros and observed that his eyes were bloodshot and watery and that he had an odor of alcoholic beverage about him. She also observed that Jamros' speech was slurred and that his balance was unsteady. Jamros was placed under arrest after failing two field sobriety tests.

As Officer Reiber escorted him to her patrol car, Jamros lit a cigarette. Reiber advised Jamros to extinguish the cigarette and to refrain from smoking or putting anything in his mouth until she had completed all the tests. Jamros continued to smoke, but on a second advisement extinguished the cigarette. Jamros had not been asked to submit to a chemical test at this time.

Jamros was taken to the Lexinton police station, where he was placed in a squad room containing an Intoxilyzer. In the squad room Jamros lit another cigarette. Again he was advised not to smoke or put anything in his mouth until a breath test was obtained. Jamros responded that he was not going to take a test. Officer Reiber then read an implied consent form to Jamros, stating the penalties for refusing to submit to a chemical test. Jamros appeared to understand the advisement. He was then asked to submit to a breath test. After signing the implied consent advisement, Jamros never stated that he would not take the test.

After verifying the maintenance and calibration of the Intoxilyzer, Officer Reiber initiated a 15-minute observation period of Jamros, as required by the Department of Health rules. Approximately 13 minutes into this observation period, Jamros took a Rolaids out of his pocket and placed it into his mouth. Both Officer Reiber and Officer Bill Engler, who was present as a witness to the testing, advised Jamros not to take the tablet as he moved it toward his mouth. Jamros responded to the effect that "you're damn right I'm going to, because I've got an ulcer." After he swallowed the tablet, Jamros was advised that he would be cited for a refusal and was released. The record does not show that Jamros was ever specifically advised that putting anything into his mouth would constitute a refusal to submit.

Jamros testified that he took the Rolaids because of an ulcer problem which was causing him extreme stomach pain and which could only be relieved by taking an antacid. According to Jamros, without the antacid he would not have been physically able to perform the breath test. The pain and the contraction of his stomach muscles would have prevented him from being able to exhale sufficiently into the machine.

Officer Reiber did not recall Jamros' having any difficulty breathing that night, nor did she inquire if Jamros was ill or taking medication.

The district court found that there was no evidence that the Rolaids would have affected the test nor that Jamros was unwilling to take the test then or wait another 15 minutes, and reversed the revocation order. The court also found that Jamros' action in taking the Rolaids was not unreasonable, given his physical discomfort, and that the officer's suspension of the test was unreasonable. The trial court concluded that Jamros' act did not constitute a refusal.

The director contends that the district court erred in finding that Jamros did not refuse to submit to a chemical test of his breath.

On an appeal from an order revoking a motor vehicle operator's license under the implied consent law, the findings of the trial court are reviewed de novo as in equity. Wohlgemuth v. Pearson, 204 Neb. 687, 285 N.W.2d 102 (1979); Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973). On appeal to the district court the burden of proof is on the licensee to establish by a preponderance of the evidence the grounds for reversal. Bapat v. Jensen, 220 Neb. 763, 371 N.W.2d 742 (1985); Wohlgemuth v. Pearson, supra.

We have held that a refusal to submit to a chemical test for purposes of the implied consent law occurs "when the licensee, after being asked to submit to a test, so conducts himself as to justify a reasonable person in the requesting officer's position in believing that the licensee understood that he was asked to submit to a test and manifested an unwillingness to take it." Martinez v. Peterson, 212 Neb. 168, 171, 322 N.W.2d 386, 388 (1982). See, also, Wohlgemuth v. Pearson, supra; Hoyle v. Peterson, 216 Neb. 253, 343 N.W.2d 730 (1984).

In the present case the uncontradicted evidence is that Jamros understood that he had been asked to submit to a breath test and he had expressly consented to the test. The issue is whether he manifested an unwillingness to take the test by ingesting the Rolaids tablet.

A motorist's conduct may constitute a refusal for purposes of an implied consent statute. S. Brent & S. Stiller, Handling Drunk Driving Cases § 15:6 (1985). The conduct in the present case did not amount to a refusal in light of Jamros' express consent to take the test, unless the ingestion of the Rolaids exhibited an objective unwillingness to submit to the test.

In other jurisdictions a motorist's refusal to refrain from chewing gum, eating, or smoking may constitute a refusal to submit to a chemical test. But a theme common among such cases is the idea that such conduct amounts to a refusal because the motorist was expressly forewarned that it would amount to a refusal. See, Matter of Dykeman v. Foschio, 90 A.D.2d 892, 456 N.Y.S.2d 514 (1982); Mathie v. Schwendiman, 656 P.2d 463 (Utah 1982); Matter of Sullivan v. Melton, 71 A.D.2d 797, 419 N.Y.S.2d 343 (1979); Com., Dept. of Transp. v. Mumma, 79 Pa.Commw. 108, 468 A.2d 891 (1983). There was no such warning in the present case. The lack of an...