Rusho v. Johns
| Decision Date | 20 November 1970 |
| Docket Number | No. 37583,37583 |
| Citation | 181 N.W.2d 448,186 Neb. 131 |
| Parties | Dennis RUSHO, Appellant, v. Lawrence C. JOHNS, Director Department of Motor Vehicles, State of Nebraska, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A conditional or qualified refusal to take a test to determine the alcoholic content of body fluids under the implied consent law is not sanctioned by the act and such refusal is a refusal to submit to the test within the meaning of the act.
2. A refusal of a request of an arrested person to contact an attorney before consenting to an alcoholic test under the implied consent law affords no reasonable ground for refusing to submit to the test.
3. The revocation of a motorist's license to operate a motor vehicle for his refusal to take a test of body fluids for alcoholic content as required by the implied consent law on the ground that he had been denied the services of legal counsel is not a deprivation of constitutional rights.
Richard L. Goos, Lincoln, for appellant.
Clarence A. H. Meyer, Atty. Gen., James J. Duggan, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
This is an appeal from the district court for Lancaster County affirming an order of the Director of the Department of Motor Vehicles revoking the driver's license and operating privileges of Dennis Rusho pursuant to the implied consent law of this state.
On February 24, 1969, about 2:50 a.m., Rusho was driving his automobile east on O Street in Lincoln. He was stopped by officer Miller of the Lincoln police force. Officer Miller testified he smelled the odor of liquor on the plaintiff, that his speech was slurred, and that he staggered when he walked. In the opinion of the officer, plaintiff was intoxicated. The issue on this appeal is whether or not Rusho's refusal to consent to a test of alcoholic content of body fluids under the implied consent law was reasonable.
The record shows that the arresting officer took Rusho to the police station and there requested that he submit to a urine or blood test which was refused. Plaintiff admitted that he refused to submit to a test until he could first consult with a lawyer. The officer having plaintiff in custody refused plaintiff's request for a lawyer prior to his submitting to the requested test.
On the foregoing issue, it is plain from the record that Rusho refused to take the alcoholic test under the implied consent law until he had talked to his lawyer. This is not a reasonable ground for refusing to take the test. A conditional or qualified refusal to take a test to determine the alcoholic content of body fluids under the implied consent law is not...
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