Roberts v. State

• Decision Date: 14 February 1985
• Docket Number: No. 1-1084A249,1-1084A249
• Citation: 474 N.E.2d 144
• Parties: Elmer A. ROBERTS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 144

474 N.E.2d 144

Elmer A. ROBERTS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-1084A249.

Court of Appeals of Indiana First District.

Feb. 14, 1985.

Clarence C. Frank, Andrew C. Mallor Associates, P.C., Bloomington, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Presiding Judge.

STATEMENT OF THE CASE

Elmer A. Roberts appeals the trial court's decision that he refused to submit to a chemical test for intoxication thus upholding the administrative suspension of his driver's license pursuant to the Indiana Implied Consent law. ¹

We affirm.

FACTS

On February 1, 1984, Roberts was driving a pickup truck in an easterly direction on State Road 58 in Greene County when a westbound automobile crossed into Roberts' lane. Although Roberts swerved to his right, he was unable to avoid being struck by the automobile. Roberts' truck was lying on its side off the roadway when police arrived. The officers noticed a moderate to strong odor of alcohol on Roberts' breath, and after extricating him from his truck, Deputy Sheriff Hassler requested that Roberts submit to a breathalyzer test for intoxication. ² Roberts refused. Hassler then informed Roberts that his refusal would result in the suspension of his driving privileges. ³ Roberts again refused.

Roberts was arrested and transported to the Greene County jail. Deputy Hassler then submitted a probable cause affidavit to the prosecuting attorney who filed it together with an information charging Roberts with driving while intoxicated. ⁴ Record at 13. The county court found the existence of probable cause and that Roberts had refused to submit to a chemical test when offered. ⁵ Record at 14.

Pursuant to Indiana Code section 9-11-4-9(a), which provides: "(a) If the affidavit under section 8(b) of this chapter states that a person refused to submit to a chemical test, the bureau shall suspend the driving privileges of the person for one (1) year," the Bureau of Motor Vehicles suspended Roberts' driver's license for one year. Roberts then, on March 15, 1984, petitioned for a prompt judicial hearing to determine whether he did refuse to submit to a chemical test when offered. ⁶ The hearing was held on April 12, 1984, resulting in a finding by the court that Roberts did refuse to submit to a chemical test when offered by a law enforcement officer. Record at 33.

Roberts contends he received head injuries in the accident which rendered him dizzy and that he has no recollection of being offered or refusing a chemical test for intoxication. On the other hand, the officers testified that Roberts was coherent, understood the request for the test and advice as to the consequences of his refusal, had no trouble communicating, and twice refused the test. The officers further testified that Roberts did not complain of dizziness, and that although he had some visible injuries, he refused medical treatment.

ISSUES

The sole issue presented for our decision, which we have rephrased, is whether the trial court properly determined that Roberts refused a chemical test for intoxication which had been offered by law enforcement officers.

DISCUSSION AND DECISION

Implied consent laws which provide for a pre-hearing administrative suspension of the driver's license of a driver whom police have probable cause to believe was driving while intoxicated when that driver refuses a request to submit to a chemical test for intoxication are constitutional so long as that person is assured a prompt post-suspension hearing. Mackey v. Montrym (1979), 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321; Ruge v. Kovach (1984), Ind., 467 N.E.2d 673. In fact, the Indiana implied consent law provides even greater protection than Mackey in that Ind.Code Sec. 9-11-4-8(a) requires a pre-suspension judicial review of the police officer's probable cause determination. Ruge at 680. The state's interest in keeping its highways safe and removing the dangers posed to the public from the presence of drunken drivers on the highways justifies summary suspensions of driver's licenses pending a prompt post-suspension judicial hearing. Ruge at 681.

Roberts posits that because his alleged head injuries rendered him incapable of refusing the officer's request to submit to the chemical test, he is denied due process of law unless the word "knowing" be inserted into the statute by judicial interpretation thereby requiring a "knowing refusal" to justify the pre-hearing suspension. For the reasons hereinafter given, and in view of the facts and circumstances of this case, we disagree.

The history of the provision for suspension for refusal to submit to a chemical test in the implied consent law in this state is revealing. Initially the statute required the refusal to be made willfully and knowingly in order to invoke the pre-hearing suspension. Acts 1977, P.L. 125, Sec. 3. (Then Ind.Code Sec. 9-4-4.5-4(c)). In 1978, the legislature amended the statute to delete willfully, but continued the requirement that the refusal be made knowingly. Acts 1978, P.L. 2, Sec. 937. (Then Ind.Code Sec. 9-4-4.5-4(e)). The 1980 amendment retained the requirement of a knowing refusal. Acts 1980, P.L. 83. However, this provision was repealed by the statute heretofore set forth (Ind.Code Sec. 9-11-4-7, see footnote 3, infra ) by Acts 1983, P.L. 143, Sec. 9.

The legislative history of the challenged provision clearly convinces us of plain and unmistakable legislative intent to change the law and to make refusal to submit to an offered intoxication test grounds for pre-hearing suspension of driving privileges. We should not write words into the statute to impose conditions not prescribed by the legislature.

Our research has revealed two cases where courts of sister states have refused to read the word "knowingly" into such a statutory provision absent use of that word in the legislative enactment. People v. Solzak (1984), 126 Ill.App.3d 119, 81 Ill.Dec. 399, 466 N.E.2d 1201; Hoban v. Rice (1971), 25 Ohio St.2d 111, 267 N.E.2d 311. These cases are persuasive here.

In Solzak, the defendant was found in an intoxicated condition behind the steering wheel of her automobile which was on top of the remains of a bus stop wind shelter. She was arrested, taken to a hospital, and asked to submit to a blood alcohol test, being informed her refusal would result in a six-month suspension of her license. She refused by stating, "Nobody's going to take blood from me." At this time, Solzak appeared coherent, not hysterical, and not in pain. At the post-suspension hearing she testified she had no recollection of these events. The trial court ruled she had not knowingly refused the request and declined to suspend her license. In reversing, the Illinois Appellate Court said:

"It is clear to us the purpose of Illinois' implied consent statute is to make the streets and highways safer for its citizens by making prosecution of intoxicated drivers easier. Allowing an individual who is too intoxicated to knowingly refuse a blood test to escape the deterrent and retributive effects of the statute would not serve to further that purpose. Furthermore, such a result would circumvent the plain meaning of the statute, which calls for suspension of one's driver's license upon refusing to take the blood test. Noticeably absent from the statute is any exception to the rule for lack of knowing refusal, and we will not create such an exception by judicial fiat. Therefore, we hold that refusal to take a chemical test by a person under arrest for driving while under the influence of alcohol, other drug, or combination thereof, need not be a knowing refusal to be the basis for a suspension of driving privileges within the provisions of Ill.Rev.Stat., 1982 Supp., ch. 95 1/2, par. 11-501.1. [Emphasis supplied.]"

81 Ill.Dec. at 402, 466 N.E.2d at 1204.

The Solzak court further observed:

"Solzak contends that to penalize one incapable of consenting or objecting to a blood test request for reasons of incoherence, incapacity or unconsciousness would be absurd. As for incoherence, in our view, to allow one who is too intoxicated to understand the request to escape penalty would be absurd. Any person who has voluntarily become so intoxicated as to be incoherent and has then driven an automobile, thereby seriously jeopardizing the health and lives of other motorists and pedestrians, falls squarely within the purview of the implied consent statute."

81 Ill.Dec. at 402-03, 466 N.E.2d 1204-05.

In reaching its decision in Solzak, the Illinois court relied heavily upon the decision of the Ohio Supreme Court in Hoban, another case where the defendant contended that since he did not remember anything he did not refuse to take the test because the refusal must be knowingly and intentionally made. Hoban further contended he had no knowledge or recollection of being advised of the consequences of refusal; that the implied consent law requires such understanding; and that he was incapable of refusing because of his physical condition. The Ohio Supreme Court rejected these arguments, saying:

"The determination will be based on an objective standard, not a subjective standard, such as the state of mind of the licensee. The subjective state of mind of the licensee cannot control the outcome of the proceedings, and a police officer is not required to know the state of mind of the person arrested and determine whether such person understood he was refusing to submit to the test. To require that would place an impossible burden on the arresting officer.

Appellant's lack of recollection is not inconsistent with his refusal to take the sobriety test. It is possible for a licensee to be in such a state of intoxication that he does not understand what is happening, and, at the same time, by words, acts and general conduct to manifest an unwillingness or outright refusal to take the...