IMPLIED CONSENT. STATE v. BRITTAIN: ADMISSIBILITY OF BLOOD-ALCOHOL TEST RESULTS-WHAT CONSTITUTES A REFUSAL TO SUBMIT TO A TEST?

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1 IMPLIED CONSENT STATE v. BRITTAIN: ADMISSIBILITY OF BLOOD-ALCOHOL TEST RESULTS-WHAT CONSTITUTES A REFUSAL TO SUBMIT TO A TEST? INTRODUCTION Several states in recent years have revised their drunken driving statutes.' This is a reflection of the new "get tough" attitude directed toward drunken drivers; those convicted of the offense are generally treated more severely under the new laws. 2 Consistent with this trend, Nebraska's drunken driving law was amended in During the process, the implied consent statute, 4 originally enacted in 1959, was also revised The thrust of this note is directed toward the defendant's refusal to submit to a blood alcohol test. Each state has enacted a statutory provision dealing with this issue; the statutes are commonly referred to as "implied consent" statutes. See ALA. CODE (1977); ALASKA STAT (Supp. 1982); ARIZ. REV. STAT. ANN A (Supp. 1983); ARK. STAT. ANN (a) (Replacement 1979); CAL. VEH. CODE 13353(a) (1) (West Supp. 1983); COLO. REV. STAT (3) (a) (Supp. 1982); CONN. GEN. STAT b(a) (Supp ); DE,. CODE ANN. tit. 21, 2740 (Supp. 1982); FLA. STAT. ANN (1)(a) (West Supp. 1983); GA. CODE ANN (1982); HAWAu REV. STAT (Supp. 1982); IDAHO CODE (Supp. 1983); ILL. ANN. STAT. ch. 95%, (a) (Smith-Hurd Supp ); IND. CODE ANN (West 1980); IOWA CODE ANN. 321B.4 (West Supp ); KAN. STAT. ANN (a) (1982); Ky. REV. STAT. ANN (Baldwin 1982); LA. REV. STAT. ANN. 32:661A (West Supp. 1983); ME. REV. STAT. ANN. tit. 29, 1312 (Supp. 1983); MD. TRANSP. CODE ANN (a) (Supp. 1982); MASS. GEN. LAWS ANN. ch. 90, 24(f) (West Supp ); MICH. COMP. LAws c (Supp ); MINN. STAT. ANN. 169, 123(2) (West Supp. 1983); Miss. CODE ANN (Supp. 1982); Mo. ANN. STAT (1) (Vernon 1974); MONT. CODE ANN (1) (1974); NEB. REV. STAT (Supp. 1982); NEV. REV. STAT (1975); N.H. REV. STAT. ANN. 265:84 (1982); N.J. REV. STAT. 39:4-50.2(a) (Supp ); N.M. STAT. ANN (Supp. 1982); N.Y. VEH. & TRAF. LAW (McKinney Supp. 1983); N.C. GEN. STAT (Supp. 1981); N.D. CENT. CODE (Supp. 1983); Omo REV. CODE ANN A (Page Supp. 1982); OKLA. STAT. ANN. tit. 47, 751 (West Supp. 1983); OR. REV. STAT (1) (1981); PA. STAT. ANN. tit. 75, 1547(a) (Purdon ); RL GEN. LAws (a) (Reenactment 1982); S.C. CODE ANN (a) (Law. Co-op. 1976); S.D. CODIFIED LAWS ANN (Supp. 1982); TENN. CODE ANN (Supp. 1982); TEX. REV. Crv. STAT. ANN. art (1) (Vernon 1977); UTAH CODE ANN (1) (Supp. 1983); VT. STAT. ANN. tit. 23, 1202(a) (Supp. 1982); VA. CODE (Supp. 1983); WASH. REV. CODE ANN (1) (Supp ); W. VA. CODE 17C-5-4 (Supp. 1983); WIS. STAT. ANN (1) (West Supp. 1983); WYO. STAT (a) (1977). 2. Evans, One More for the Road, 56 FLA. B.J. 691, 691 (1982). 3. See Comment, L.B. 568: Nebraska's New Drunken Driving Law, 16 CREIGH- TON L. REV. 90, 90 ( ). 4. NEB. REV. STAT (Reissue 1978) (amended 1982). 5. Comment, supra note 3, at The changes affected mainly the applicable penalties rather than the substance of the implied consent statute. A person

2 CREIGHTON LAW REVIEW [Vol. 17 The basic premise of implied consent is that a driver who operates a motor vehicle upon the state's roads or highways consents to submit to a chemical analysis of his body fluid if arrested for suspicion of driving while intoxicated. 6 This consent can be withdrawn, however, by the driver's refusal to submit. 7 The case of State v. Brittain 8 involved a conviction for motor vehicle homicide under Nebraska's drunken driving law. 9 The jury based the conviction largely on the results of a blood alcohol test administered to the defendant shortly after the accident. 10 The appellant contended that he had refused to submit to the test." He maintained, therefore, that the court had improperly admitted into evidence the blood test results, since the sample was withdrawn over his objections. 12 Under section of the Nebraska statutes, a person who is "unconscious or who is otherwise in a condition rendering him incapable of refusal" is deemed not to have withdrawn his consent; thus the blood alcohol test can be legally administered. 13 In Brittain, the State argued, pursuant to this provision, that the defendant had been "incapable of refusal," and that the blood alcohol test had therefore been legally administered, and the results properly admitted into evidence. 1 4 The Nebraska Supreme Court agreed. 1 5 State v. Brittain was a case of first impression in Nebraska. The court had never addressed the issue of incapacity to refuse when the incapacity was being asserted by the prosecution.' 6 In who refuses to consent is subjected to both administrative and criminal sanctions. If the refusal is found to be unreasonable, the driver's license is automatically revoked for a period of one year. Previously, the period of revocation was six months. 6. Prucha v. Department of Motor Vehicles, 172 Neb. 415, 424, 110 N.W.2d 75, 82 (1961). 7. Lerblance, Implied Consent to Intoxication Tests: A Flawed Concept, 53 ST. JOHN'S L. REV. 39, 49 (1978) Neb. 686, 325 N.W.2d 141 (1982). 9. NEB. REV. STAT (Reissue 1978) (amended 1982). The statute reads in pertinent part: It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor or of any drug or when that person has ten-hundredths of one percent or more by weight of alcohol in his body fluid as shown by chemical analysis of his blood, breath, or urine. 10. See 212 Neb. at 689, 325 N.W.2d at 144. Although the case does not specifically state that the jury based its conviction on the blood alcohol test results, this conclusion seems likely since the prosecution introduced no other evidence to support a conviction. 11. Id. 12. Id. 13. NEB. REv. STAT (Reissue 1978) Neb. at 690, 325 N.W.2d at Id. at 687, 325 N.W.2d at Id. at 690, 325 N.W.2d at 144.

3 19831 IMPLIED CONSENT previous cases it had been the defendant who, having been convicted for refusing to take the blood alcohol test as required by the implied consent statute, had later argued for reversal on the grounds that he or she had been "incapable of refusing." 17 This argument had never before been accepted. 18 This note will establish that under commonly accepted tests the State did not meet its burden of showing that the driver's condition rendered him incapable of refusing. Therefore, the sample was improperly withdrawn and the test results were erroneously admitted into evidence. In interpreting the implied consent statute, the court allowed subjective considerations, such as the suspect's state of mind, to control its decision. 19 As a result, the plurality opinion created a new standard for determining when a person is capable of refusal. 20 In light of recent case law, it is foreseeable that adoption of the new standard will eventually work to the State's disadvantage. FACTS The accident which gave rise to the charge of drunken driving occurred at approximately one-thirty a.m. on January 18, The defendant's pickup truck crashed into the side of a building, killing a passenger in the truck. 22 Police found the defendant, Frank Brittain, behind the wheel of the truck. 23 Apparently injured, he was taken by rescue squad to a local hospital. 24 The investigating officer found an empty beer bottle in the truck, and discerned a strong smell of alcohol inside the vehicle as well. 25 Approximately one hour after the accident, the officer went to the hospital. 26 Brittan was being treated in the emergency room. 27 While observing Brittain, the officer noticed that although the defendant responded to the requests of the medical staff, he frequently had to be asked to do things more than once. 28 The of- 17. See notes and accompanying text infra Neb. at 687, 325 N.W.2d at Id. at , 325 N.W.2d at (McCown, J., dissenting). 20. Motion for Rehearing and Assignments of Error at 3, State v. Brittain, 212 Neb. 686, 325 N.W.2d 141 (1982) Neb. at 687, 325 N.W.2d at Brief of Appellant at 4, State v. Brittain, 212 Neb. 686, 325 N.W.2d 141 (1982). The appellee accepts the appellant's statement of facts. Brief of Appellee at 3, State v. Brittain, 212 Neb. 686, 325 N.W.2d 141 (1982). 23. Brief of Appellant at 4, Brittain. 24. Id 25. Id. at Id. 27. Id. 28. Id.

4 CREIGHTON LAW REVIEW [Vol. 17 ficer noted a strong odor of alcohol on his breath. 2 9 When questioned by the officer about the accident, the defendant stated that he did not remember anything. 30 An attending physician later testified that Brittain appeared confused and seemed to have amnesia concerning the events immediately preceding his arrival at the hospital. 3 1 The officer read the implied consent advisory form to the defendant and arrested him for suspicion of driving while intoxicated. 32 The defendant responded by stating that he had not been driving, had not been in an accident, and was not injured. 33 When asked to respond to questions on the implied consent form, the defendant replied that he did not understand. 34 He continued to repeat his earlier denials concerning the accident. 35 When asked if he wanted to submit to a blood or urine test, Brittain specifically replied, "No. ''3 6 He again stated that he had not been in an accident and that he did not want to take the test. 3 7 The officer decided that the defendant was incoherent and incapable of refusing to allow the blood test. 3 8 The officer ordered medical personnel to withdraw a blood sample. 3 9 A medical technician took the sample, during which time the defendant three times stated, "I am sorry. ' 40 The officer placed the sample in his breast pocket and completed the accident investigation. 41 Approximately five hours later, he delivered the blood sample to the property room at police headquarters, where it was refrigerated. 42 Two days later, a chemist tested the blood. 4 3 He testified at trial that it contained.215% alcohol by volume, 44 which is.115% above the legal limit in Nebraska. 45 The jury convicted the defendant on one count of motor vehi- 29. Id. Because of the defendant's confusion and the odor of alcohol on his breath, the officer suspected Brittain of "driving under the influence." 30. Id. 31. Brief of Appellee at 5, Brittain. 32. Brief of Appellant at 5, Brittain. 33. Id. 34. Id. at Id. 36. Id. 37. Id. 38. Id. This was a subjective rather than objective determination. 39. Id Neb. at 689, 325 N.W.2d at 144; Brief of Appellee at 4-5, Brittain. 41. Brief of Appellant at 6, Brittain. 42. Id. 43. Id Neb. at 687, 325 N.W.2d at NEB. REV. STAT (Reissue 1978) (amended 1982).

5 1983] IMPLIED CONSENT cle homicide. 46 Brittain was sentenced to a term of between one and two-thirds to five years in prison. 47 On appeal, the Nebraska Supreme Court upheld the conviction in a three-one-three opinion. 48 BACKGROUND The Nebraska Implied Consent Statute In 1953, New York became one of the first states to enact an implied consent law. 49 Since that time, all fifty states have enacted similar statutes. 50 The Nebraska implied consent statute, in effect at the time of the Brittain accident, stated in part: Any person who operates or has in his actual physical control a motor vehicle upon a public highway in this state shall be deemed to have given his consent to submit to a chemical test of his blood, urine, or breath, for the purpose of determining the amount of alcoholic content in his body fluid 51 The Public Health Committee introduced the original bill at the recommendation of the governor. 52 The governor's Conference on Traffic Safety unanimously urged its passage. 53 The legislature approved the law on June 17, 1959 and it went into effect immediately, as an emergency measure.m Although highway safety is the primary goal of the implied consent statute, 55 it serves several purposes. It is an evidentiary tool which objectively evaluates a driver's physical and mental condition. 56 It provides a scientific means of assisting courts in as Neb. at 687, 325 N.W.2d at Id. 48. Id. 49. Note, Driving While Intoxicated and the Right to Counsel: The Case Against Implied Consent, 58 TEx. L. REv. 935, 938 (1980). 50. See note 1 supra. The essence of the statutes is that a driver impliedly consents to submit to a chemical test for intoxication; this is a well-recognized aspect of American law. Lerblance, supra note 7, at NEB. REV. STAT (Reissue 1978) (amended 1982) NEB. LEGIS. J Committee Statement on LB. 694, 1959 NEB. LAws - (Public Health Committee). 54. L.B. 694, 11, 1959 NEB. LAWs 616. There is little recorded legislative debate to support the adoption of the Nebraska statute; however, the intent of the legislators reflected the attitude of lawmakers from other states. Id. Concern over the rising death toll on the nation's highways prompted several states to adopt some form of implied consent statute. Note, supra note 49, at 941. The Nebraska legislature joined the trend by enacting a measure similar to those in effect in other states NEB. LEGIS. J Hoban v. Rice, 25 Ohio St. 2d 111, -, 267 N.E.2d 311, 314 (1971). 56. Woosley v. Central Uniform Rental, 463 S.W.2d 345, 349 (Ky. 1971).

6 CREIGHTON LAW REVIEW [Vol. 17 certaining the truth of a drunken driving charge. 5 7 The implied consent statute also prevents the use of violence or force on the part of law enforcement officials by allowing them to accept a driver's refusal, rather than physically compelling submission to a test. 58 The law protects the public by removing drunken drivers from the highway. 5 9 It protects individual rights, as well, by exonerating innocent persons who may have the odor of alcohol on their breath, or whose conduct might otherwise indicate the consumption of alcohol, but who have not been drinking to excess. 60 Finally, implied consent statutes serve as a preventive measure by providing information concerning the causes of accidents. 6 ' States utilize this information to develop effective accident prevention programs. 62 The constitutionality of Nebraska's implied consent law was upheld in the case of Prucha v. Department of Motor Vehicles. 63 Prucha challenged the law by alleging that it violated his privilege against self-incrimination.64 The court in Prucha held that by the act of driving, the appellee had waived his constitutional privilege provided by the fifth amendment. 65 This view was reaffirmed in State v. Williams. 66 There the Nebraska court reiterated the distinction between testimonial and physical evidence. 6 7 Testimonial evidence is a form of either written or oral communication; 68 physical evidence includes such things as blood or urine samples, finger prints and voice prints. 69 Only testimonial evidence is protected 57. R. REEDER, INTERPRETATION OF IMPLIED CONSENT LAWS BY THE COURTS 20 (1972). 58. Bush v. Bright, 264 Cal. App. 2d 788, -, 71 Cal. Rptr. 123, 124 (1968). 59. R. REEDER, supra note 57, at Id. 61. Woosley, 463 S.W.2d at Id Neb. 415, , 110 N.W.2d 75, 82 (1961). 64. Id. at , 110 N.W.2d at 79 (defendant contended the revocation of his license was capricious and arbitrary, and violated the state constitution as well as the United States Constitution). 65. Id. at 424, 110 N.W.2d at 82. See also Schmerber v. California, 384 U.S. 757 (1966). In a landmark decision, the United States Supreme Court affirmed the California Supreme Court's decision that a blood sample could be taken from a suspect at the direction of a police officer, despite a refusal by the suspect. The court ruled that the taking of blood did not violate the privilege of self-incrimination because the witness was not "compelled to be a witness against himself." Id. at Neb. 127, 201 N.W.2d 241 (1972) (defendant convicted of motor vehicle homicide for his involvement in a collision which resulted in nine fatalities. Id. at 128, 201 N.W.2d at 242). 67. Id. at , 201 N.W.2d at Schmerber v. California, 384 U.S. at Id. Physical evidence of this type is admissible into evidence.

7 19831 IMPLIED CONSENT by the fifth amendment. 70 Thus, the admission into evidence of blood alcohol test results in a drunken driving case is constitutional. 7 1 Despite the major overhaul in Nebraska's drunken driving law in 1982, the basic purposes and provisions of the implied consent law remain unchanged. 72 The essence of the implied consent law is that by operating a motor vehicle on the public highway, the driver consents to the taking of a chemical test to ascertain the alcoholic content of his body fluid. 73 The act of driving activates the law. 74 Before a test can be requested, however, the driver must be arrested. 75 The Nebraska Supreme Court has construed this to mean that even an unconscious person must be arrested before a blood sample can be taken if the results of the blood test are to be admissible into evidence. 76 The implied consent statute is not applicable in situations where the driver has given his or her actual consent. 77 Prior to arrest, the law enforcement official must have reasonable grounds to believe that the person was driving under the influence of intoxicating liquor. 78 Establishment of reasonable grounds 79 is a condition precedent to a valid request for a test of body fluid. 80 If valid grounds are not established, a refusal to submit to the test will be found reasonable and the revocation of a driver's license will be ruled improper. 81 After placing the suspect 70. Id. 71. Id. 72. The primary change in Nebraska's new drunken driving law in regard to the implied consent provision is the penalty for refusal to submit. Under the old law, the suspect's license was revoked for six months; under the amended law, the sanction for refusing to submit to a chemical test is license revocation for one year. See note 5 supra. 73. Prucha v. Department of Motor Vehicles, 172 Neb. 415,424, 110 N.W.2d 75, 82 (1961). 74. R. REEDER, supra note 57, at State v. Howard, 193 Neb. 45, 52, 225 N.W.2d 391, 396 (1975) (citations omitted). See also NEB. REv. STAT (Reissue 1978) (amended 1982). 76. State v. Howard, 193 Neb. 45, 52, 225 N.W.2d 391, 396 (1975). 77. State v. Seager, 178 Neb. 51, 52, 131 N.W.2d 676, 677 (1964) (when asked if he would be willing to give a blood sample, defendant replied, "Go ahead." Court held prior arrest was required only for implied consent. Id. at 52, 131 N.W.2d at 677). 78. Howard, 193 Neb. at 51-52, 225 N.W.2d at In Howard, the police failed to arrest the suspect before obtaining a blood sample. The court indicated that reasonable grounds for arrest did not exist anyway, since odor on the suspect's breath was the only sign of alcoholic consumption. The investigating officer testified that neither defendant's actions nor speech was seemingly affected by drinking. Id. at 47, 225 N.W.2d at E.g., Mackey v. Director of Motor Vehicles, 194 Neb. 707, 712, 235 N.W.2d 394, 397 (1975). 81. Metschke v. Department of Motor Vehicles, 186 Neb. 197, , 181 N.W.2d 843, 845 (1970).

8 CREIGHTON LAW REVIEW [Vol. 17 under arrest, the officer may direct the driver to submit to a breath test. 82 In the alternative, the officer may direct that the test be of blood or urine, particularly if a breathalyzer machine is unavailable. 83 If the officer determines that the sample must be of blood or urine, the driver may then choose between the two. 8 4 If the suspect chooses the urine test, and is then unable to provide the needed sample, and is furthermore unwilling to provide an alternative sample of either blood or breath, the suspect is deemed to have refused to submit to the test under Nebraska's implied consent law. 85 Nebraska law also provides the suspect with the option of having an independent test made by a physician of his choice, in addition to the test ordered by the arresting officer. 86 In most cases, the suspect is probably unaware of this option. The statute, however, does not require the officer to inform the arrested person of this privilege. 8 7 It merely establishes that if the officer refuses to allow an additional test when requested by the suspect, then the original test results will not be admitted as competent evidence. 88 Law enforcement officials cannot deny a suspect's request to have an additional test administered by an independent physician. 89 A suspect may withdraw his or her implied consent by refusing to take the test. 90 The main provision of Nebraska's implied consent law at issue in State v. Brittain is the section concerning capacity to refuse. This section states: "Any person who is unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by section and the test may be given." 91 Prior to Brittain the Nebraska Supreme Court dealt with this section in Wohigemuth v. Pearson. 92 In Wohlgemuth, the sole issue 82. NEB. REV. STAT (Reissue 1978) (implied consent provision dealing with choice of test). 83. Id. See also Martinez v. Peterson, 212 Neb., 168, 170, 322 N.W.2d 386, 388 (1982) (discussing ). 84. State v. Wahrman, 199 Neb. 337, 339, 258 N.W.2d 818, 820 (1977) (discussing ). 85. Mackey, 194 Neb. at 714, 235 N.W.2d at Wahrman, 199 Neb. at 338, 258 N.W.2d at E.g., Zadina v. Weedlun, 187 Neb. 361, 362, 190 N.W.2d 857, 858 (1971). 88. Wahrman, 199 Neb. at 338, 258 N.W.2d at Id. at , 258 N.W.2d at Lerblance, supra note 7, at 49. Cf. Campbell v. Superior Court, 106 Ariz. 542, -, 479 P.2d 685, 691 (1971) (citing those states in which the suspect has a statutory right to refuse the test, and those states in which the suspect has merely the power, not the right to refuse). 91. NEB. REV. STAT (Reissue 1978) Neb. 687,285 N.W.2d 102 (1979);see also State v. Howard, 193 Neb. 45, 225 N.W.2d 391 (1975) (driver was found unconscious behind the wheel and blood sam-

9 19831 IMPLIED CONSENT was whether the appellee (driver) was in a condition rendering him incapable of refusal. 93 The court concluded that the driver, who was conscious but disoriented, was fully capable of refusing to submit to a chemical test and had done so by his statements. 94 Prior to Wohlgemuth, the Nebraska Supreme Court ruled that if the arrested person is not in a condition that renders him incapable of refusal, and the defendant refuses to submit to a chemical test upon request, then no test will be given. 95 The statutes of some states require that a driver be informed of the consequences of a refusal to submit to a chemical test upon request. 9 6 In Nebraska, however, no warning need be given. 97 In Prucha, the driver alleged that the officer failed to advise him of the consequences of refusing to comply with the statute. 98 The Nebraska court held that the defendant's allegation did not state a sufficient cause of action. 9 9 Five years later the Nebraska court reaffirmed this position. In State v. Hagen, 10 0 the officer incorrectly informed the driver of the consequences of a refusal; 10 1 nevertheless, the Nebraska court again held that an officer is not required to advise a driver of the consequences of a failure to submit to one of the tests As a general rule, upon the suspect's refusal to submit to a ple was taken. Although court ruled test results inadmissible due to lack of proper arrest, unconscious suspect is deemed not to have withdrawn consent provided by the statute). 93. Wohlgemuth, 204 Neb. at , 285 N.W.2d at Id. at 691, 285 N.W.2d at See State v. Howard, 193 Neb. 45, 53, 225 N.W.2d 391, 396 (1975) (blood test results are inadmissible where sample is taken involuntarily); accord Department of Motor Vehicles v. McElwain, 80 Wash. 2d 624,-, 496 P.2d 963, 965 (1972) (chemical test shall be administered in every case where officer has reasonable grounds to suspect intoxication, except where refused). 96. See August v. Department of Motor Vehicles, 264 Cal. App. 2d 52,-, 70 Cal. Rptr. 172, 181 (1968); Carey v. Melton, 64 A.D.2d 983, -, 408 N.Y.S.2d 817, 818 (1978); State v. Hurbean, 23 Ohio App. 2d 119, -, 261 N.E.2d 290, 296 (1979); Department of Motor Vehicles v. McElwain, 80 Wash. 2d 624,-, 496 P.2d 963, 964 (1972) (all holding that an arrested suspect must be advised of the consequences of a refusal to submit to a chemical test before the refusal is valid). 97. Prucha v. Department of Motor Vehicles, 172 Neb. 415,420, 110 N.W.2d 75, 80 (1961). 98. Id. 99. Id Neb. 564, 565, 143 N.W.2d 904, 905 (1966) (defendant convicted for driving motor vehicle on public highways while under the influence of intoxicating liquor, second offense) Id. at 566, 143 N.W.2d at 905. The officer told the driver that if he refused to take the test, he would be taken to court, rather than telling the driver that he would have to appear before the Director of Motor Vehicles. The court ruled the erroneous information irrelevant Id.

10 CREIGHTON LAW REVIEW [Vol. 17 test, the arresting officer sends a sworn report to the Motor Vehicle Department stating the reasonable grounds for arrest and the fact of the subsequent refusal The accused is then given an opportunity to explain his refusal at a hearing on the following issues: (1) whether reasonable grounds existed for the arrest; (2) whether the police placed the suspect under arrest; and (3) whether the suspect refused to submit to a chemical test upon request If the refusal is not found to be reasonable, the Motor Vehicle Department revokes the accused's license The driver may appeal the revocation in a court of law. 0 6 It is the third issue, whether the suspect refused to submit to a chemical test upon request, which the court focused on in State v. Brittain. A survey of Nebraska case law indicates that the court has addressed this issue on previous occasions, 10 7 though in these cases it was the defendant, and not the prosecution, as in Brittain, who was pleading incapacity to refuse In Martinez v. Peterson, 10 9 the Department of Motor Vehicles suspended the driver's license for refusal to submit to a chemical test."1 0 The driver was a Mexican-American."' He contended that he did not understand English well enough to comprehend that the officers were asking him to submit to a blood or urine test. 112 Despite conflicting evidence on this point, 113 the Nebraska court accepted the driver's argument, holding him incapable of refusing the test because of his inability to understand the officer's language." 4 Therefore, the court ruled the evidence of refusal inadmissible and reinstated the 103. NEB. REV. STAT (Reissue 1978) R. REEDER, supra note 57, at 33. See also State v. Hurbean, 23 Ohio App. 2d 119, -, 261 N.E.2d 290, 294 (1970). The fourth issue listed by the court, concerning the suspect's awareness of the consequences of refusal, is not a requirement in all states. Cf. note 96 supra NEB. REV. STAT (Reissue 1978) (amended 1982). Before the 1982 amendments to the law, such revocation was for a period of six months; the amendment extends the period to one year. For an interpretation of the provision, see Mackey v. Director of Motor Vehicles, 194 Neb. 707, 712, 235 N.W.2d 394, 397 (1975) R. REEDER, supra note 57, at See notes and accompanying text infra See notes and accompanying text supra Neb. 168, 322 N.W.2d 386 (1982) Id. at 169, 322 N.W.2d at Id Id The appellee alleged that he did not speak or understand English, and that he did not understand the arresting officer's explanation of implied consent. He maintained that he had not refused to submit to a chemical test. Id. The officer testified that he interpreted the appellee to say he was unwilling to do anything that would result in his license being taken away. The officer maintained that the suspect refused to make a decision concerning the test. Id. at 170, 322 N.W.2d at Id. at , 322 N.W.2d at 389.

11 1983] IMPLIED CONSENT appellee's license The driver's refusal was also at issue in Winter v. Peterson. 116 The driver in Winter did not submit to a chemical test when requested to do so. Instead, he asked permission to call his attorney. 117 The attorney arrived less than thirty-five minutes later." 8 The driver consulted with the attorney and subsequently requested that the test be administered, offering to sign an implied consent form. 119 The officer refused to give the test, arguing that the driver had already refused to submit. 20 The court agreed with the officer, holding that no test need be given on demand by the suspect, if that suspect has previously refused to submit to a test. 121 The court held that a single request by law enforcement officials to submit to a chemical test is sufficient.' 22 Refusal to Submit: Subjective or Objective Criteria A refusal should be accepted without subjective considerations, such as attempting to determine the suspect's state of mind, as indicated by the opinion in Wohlgemuth v. Pearson. 23 Wohlgemuth stated that he would not take any tests and that he wanted his wife present. 124 Although evidence indicated that the driver was disoriented and had probably suffered a cerebral concussion, 25 the court still held him accountable for his refusal to submit to a test when requested. 26 The court stated that any other result would force the director of the Department of Motor Vehicles, as well as the trial court, into a "psychological guessing game" as to the driver's state of mind and capacity to comprehend. 27 Case law from other jurisdictions supports the view that sub Id Neb. 785, 305 N.W.2d 803 (1981) Id. at 786, 305 N.W.2d at Id Id. Id Id. at 787, 305 N.W.2d at 805. But see Sedlacek v. Pearson, 204 Neb. 625, 284 N.W.2d 556 (1979). The driver was allowed to contact his attorney and then take a breath test, which indicated intoxication. The driver was not charged with refusal since the subsequent test was sufficient to support a charge of drunkenness. Id. at 628, 284 N.W.2d at 558. The contrasting results of Sedlacek and Winter suggest that the police have an option in deciding whether or not to administer the test upon a subsequent request by the driver Neb. at 787, 305 N.W.2d at See 204 Neb. 687, 691, 285 N.W.2d 102, 104 (1979) Id. at 690, 285 N.W.2d at Id. at 689, 285 N.W.2d at 103 (doctor testified in court concerning defendant's condition at time police requested chemical test) Id. at , 285 N.W.2d at Id. at 691, 285 N.W.2d at 104.

12 CREIGHTON LAW REVIEW [Vol. 17 jective considerations regarding the defendant's state of mind are not relevant to the issue of refusal. 128 Ohio's implied consent statute is very similar to Nebraska's The Ohio Supreme Court has held that a driver either refuses or does not refuse to take the test, and that "[t] he officer's opinion on the subject does not supply the fact."' 130 Two years later, the Ohio court reaffirmed its position concerning the issue of refusal and held that a subjective state of mind cannot control the outcome of the proceedings. 13 ' The determination must be based on an objective standard, not a subjective one such as the licensee's state of mind. 132 The Supreme Court of Washington has held that a refusal made "knowingly and intelligently," as this phrase is used in the context of an implied consent statute, means that the driver was advised of his rights and was asked to take the test It does not mean that he necessarily understood the advice given to him or that he responded intelligently to it.1 34 A lack of subjective understanding does not excuse the drunken driver Similarly, the highest court of Colorado has ruled that it is the driver's outright refusal to submit to the test which is relevant, not his state of mind or later recollection of events. 36 In the Louisiana case of Kaufman v. State, 137 the driver alleged that he was incapable of knowingly refusing the test due to 128. See notes and accompanying text infra See Groff v. Rice, 20 Ohio App. 2d 309, -, 253 N.E.2d 318, 320 (1969). The Ohio statute provides: Any person who operates a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested for the offense of driving while under the influence of alcohol... OHIo REV. CODE ANN (Page 1975) Groff v. Rice, 20 Ohio App. 2d at -, 253 N.E.2d at Hoban v. Rice, 25 Ohio St. 2d 111, 267 N.E.2d 311 (1971) (defendant refused to submit to test; he was jailed and his license suspended. Defendant later claimed at trial that he had been too drunk to refuse the court rejected the defense. Id. at -, 267 N.E.2d at ) Id. at -, 267 N.E.2d at Department of Motor Vehicles v. McElwain, 80 Wash. 2d 624, -, 496 P.2d 963, 965 (1972) (en banc) (when advice as to consequences is given and a conscious operator does not willingly submit and cooperate in the test, he must be deemed to have refused) Id Id Dolan v. Rust, 195 Colo. 173, -, 576 P.2d 560, 562 (1978) (en banc) (driver was slumped over the wheel of the car and refused to cooperate when requested to give breath sample. Lower court found defendant physically incapable of refusal, but state supreme court reversed). See notes infra So. 2d 723 (La. Ct. App. 1973), cert. denied, 289 So. 2d 156 (La. 1973).

13 19831 IMPLIED CONSENT his state of inebriation. 138 Louisiana's intermediate appellate court rejected this defense and maintained that adopting the driver's argument would place a heavy burden on the arresting officer. 139 Requiring the officer to determine the suspect's state of mind would result in delaying the test until the driver was sober enough to understand that he was being asked to take a test. This would circumvent the purpose of the statute by excusing the most dangerous motorists-those not too drunk to drive, but too drunk to comprehend the events "going on around them."' 14 ANALYSIS The issue addressed by the Nebraska court in Brittain was the defendant's capacity to refuse. Under Nebraska law, a person who is unconscious or "otherwise in a condition rendering him incapable of refusal" is deemed not to have withdrawn his consent to submit to a chemical test. 141 Since the defendant was obviously not unconscious, the Brittain case required the court to interpret the "otherwise... incapable of refusal" language. In doing so, the court apparently established a new standard which will be applied in future drunken driving cases. 142 During the course of its deliberation, the court looked closely at the circumstances surrounding the withdrawal of a blood sample from the defendant, Frank Brittain. The State premised its case mainly on the condition of the defendant at the time the police requested him to submit to a chemical test. 143 Brittain had received minor physical injuries in the So. 2d at Id. (voluntary intoxication to such a degree as to deprive a driver of the capacity to knowingly refuse the test is not a defense) Id NEB. REV. STAT (Reissue 1978) See State v. Brittain, 212 Neb. at , 325 N.W.2d at 148 (McCown, J., dissenting). See also Motion for Rehearing and Assignments of Error at 4 (asserting that the creation of a new standard for application in drunken driving cases is inconsistent with the legislature's intent and with the laws of other states) Brief of Appellee at 7, State v. Brittain, 212 Neb. 686, 325 N.W.2d 141 (1982). The facts concerning Brittain's condition stipulate that the defendant was bleeding profusely from the head when the investigating officer arrived at the hospital. 212 Neb. at 688, 325 N.W.2d at 143. Medical personnel sometimes had to tell the defendant two or three times to do certain things to assist in their treatment of him. Id. However, the defendant was conscious and capable of complying with the requests of the medical staff. Brief of Appellant at 8, Brittain. Even though the defendant repeated several times that he had not been involved in an accident and was not injured, he otherwise gave reasonable answers both to the investigating officer and to the hospital staff. Id. at 7-8. The prosecution did not challenge the intelligibility of the defendant's responses. An attending physician testified that Brittain appeared generally confused and unable to remember the events surrounding the accident. Brief of Appellee at 5, Brittain. The medical technologist who took the

14 CREIGHTON LAW REVIEW [Vol. 17 collision. 144 Although the defendant appeared irrational at times, his speech was clear. 145 A breath test was impractical in the situation, since Brittain could not be transported to the police station to take the test.1 46 When requested by the officer to submit to a chemical analysis of his blood or urine, the defendant, having been informed of the consequences of his refusal, unequivocally manifested an unwillingness to submit by stating, "I don't want to take any test. There is nothing wrong with me. I was not involved in a traffic accident. I was not hurt."' 147 The investigating officer testified that Brittain continued to give responses like this during the remainder of the interview. 148 Based on his observation of the defendant, the officer then made a subjective determination that Brittain's condition rendered him incapable of refusal. 149 Therefore, the officer concluded that blood could be extracted from the defendant without his consent. 150 The Nebraska Supreme Court accepted the officer's reasoning. 151 Previous decisions in Nebraska and other jurisdictions, however, indicate that Brittain's conduct did constitute a legally sufficient refusal, 152 and that there are tests other than subjective ones that police can use to determine whether a suspect is capable of refusal. 153 Manifestations of Refusal A conditional or qualified refusal to take a test to determine the alcohol content of body fluid constitutes a valid refusal under Nebraska's implied consent law. 5 4 A refusal to take the test unblood sample from the defendant testified that Brittain was "in pretty bad shape." 212 Neb. at 689, 325 N.W.2d at 144. During the withdrawal of blood, the defendant stated three times that he was sorry. Id Brief of Appellee at 5, Brittain (doctor on duty when Brittain arrived at the hospital testified that the defendant had multiple lacerations, cuts of the scalp and leg, and bruises on the chest) Brief of Appellant at 8, Brittain Neb. at 689, 325 N.W.2d at 144 (police may carry with them a device for preliminary breath test, but actual breath test on which drunken driving conviction is based must be administered at police station, on properly maintained breathalyzer machine, and according to state health regulations). NEB. REV. STAT (Reissue 1978) Taken from the testimony of the investigating officer, 212 Neb. at 689, 325 N.W.2d at Id Brief of Appellant at 6, Brittain Id Neb. at 691, 325 N.W.2d at See notes and accompanying text infra See notes and accompanying text infra Rusho v. Johns, 186 Neb. 131, 133, 181 N.W.2d 448, 449 (1970).

15 1983] IMPLIED CONSENT less allowed to consult with an attorney 155 is a conditional refusal and is not sanctioned by the law. 5 6 Likewise, a suspect's consent to take the test only if he is allowed to go home immediately thereafter also constitutes a refusal within the meaning of the implied consent statute. 157 An inability to provide a urine sample, coupled with an unwillingness to provide a blood or breath sample, has also been construed to constitute a refusal. 5 8 It follows that the sanctions for refusal may be imposed on any person who conditions or qualifies his consent to submit to a test. Silence on the part of the suspect in response to an officer's request to submit to a test also constitutes refusal.' 59 In other words, the officer is not required to determine the driver's state of mind. 160 Rather, the officer may accept the suspect's silence as a refusal and need not attempt to administer one of the tests in order to make the refusal valid.' 6 ' In the Nebraska case of Johnson v. Dennis, 62 the officer informed the driver of his right to choose a blood or urine test. 163 The driver replied that he would provide a urine sample. 1 ' He then declined to do so and thereafter remained silent on the advice of counsel. 65 The court ruled that his failure to reply to subsequent requests was equivalent to a refusal. 166 A third and obvious method of refusal is a direct, oral refusal, 167 such as occurred in the case of Frank Brittain. 168 Responses such as "No," or "I am not taking any test," are commonly 155. For a more thorough discussion of the right to counsel issue, see Schmerber v. California, 384 U.S. 757, (1966), holding that a drunken driving suspect has no constitutional right to consult with an attorney before submitting to a chemical test. But see Note, supra note 49, at Winter v. Peterson, 208 Neb. 785, 787, 305 N.W.2d 803, 806 (1981); Rusho v. Johns, 186 Neb. 131, 133, 181 N.W.2d 448, 449 (1970) Preston v. Johns, 186 Neb. 14, 16, 180 N.W.2d 135, 136 (1970) Mackey v. Director of Motor Vehicles, 194 Neb. 707, 714, 235 N.W.2d 394, 398 (1975) E.g., Lampman v. Department of Motor Vehicles, 28 Cal. App. 3d 922,-, 105 Cal. Rptr. 101, 103 (1972) Id. at-, 105 Cal. Rptr. at Id. at-, 105 Cal. Rptr. at Neb. 95, 187 N.W.2d 605 (1971) Id. at 95, 187 N.W.2d at Id Id. at 95-96, 187 N.W.2d at 606; accord Warner v. Motor Vehicle Div., 5 Or. App. 612, 485 P.2d 1248 (1971) (defendant was asked to take breath test and was informed as to consequences of refusal. Defendant appeared uncertain and requested to speak with attorney. Following telephone consultation, defendant refused to take any test whatsoever, and signed breathalyzer refusal form; court held suspect capable of making rational decision. Id. at -, 485 P.2d at ) Neb. at 96, 187 N.W.2d at R. REEDER, supra note 57, at Neb. at 689, 325 N.W.2d at 144.

16 CREIGHTON LAW REVIEW [Vol. 17 construed by the courts to be direct refusals In DiSalvo v. Williamson,1' 0 the driver refused to take the test,"'' and later asserted to the Rhode Island court that his refusal was not valid because officers had not attempted to prepare the test, nor had they summoned a qualified individual to administer it. 172 Ruling that the suspect's oral refusal to submit was valid,"' 3 the court stated, "Once... [the driver] refuses, he takes a calculated risk that he will have a six-month vacation from his driving chores."' 174 A similar refusal was articulated by the driver in the California case of Maxsted v. Department of Motor Vehicles. 175 Maxsted had been requested twice to submit to a test and had also read a written 6 statement of obligation on a third request"' He orally refused to submit. 1 7 The California court held that when a driver answers a request with an unqualified "No," then his response can only be interpreted as a refusal to take the test."' 8 Intoxication as a Defense for Refusing to Submit In the Washington case of Hering v. State Department of Motor Vehicles, 179 the driver, who admittedly had consumed at least twenty-four martinis, 8 0 refused to take a breathalyzer test when requested The trial court held that the defendant's state of inebriation prevented him from intelligently refusing the test. 182 But the Washington Court of Appeals reversed, holding that the purpose of the implied consent statute is to provide the defendant with the opportunity to exercise an intelligent judgment if he is capable of doing so. The emphasis is on the opportunity; the inability to exercise it due to intoxication is of no consequence R. REEDER, supra note 57, at R.I. 303, 259 A.2d 671 (1969) Id. at -, 259 A.2d at Id. at -, 259 A.2d at (before a breath test can be given, the breathalyzer machine must be prepared in accordance with state health regulations. Additionally, the person administering the test must possess a valid permit issued by the state health department. Likewise a blood sample can only be withdrawn by a qualified individual. If a suspect has refused, officers need not prepare the breathalyzer or summon an individual to give the test.) Id. at-, 259 A.2d at Id. at -, 259 A.2d at Cal. App. 3d 982, 92 Cal. Rptr. 579 (1971) Id. at , 92 Cal. Rptr. at Id. at 984, 92 Cal. Rptr. at Id. at 986, 92 Cal. Rptr. at Wash. App. 190, 534 P.2d 143 (1975) Id. at-, 534 P.2d at Id Id Id. at-, 534 P.2d at

17 19831 IMPLIED CONSENT Accountability for the results of one's voluntary intoxication is by no means novel in the law. 184 Still, defendants routinely urge the courts to consider the effect of excessive intoxication on refusal to submit to a chemical test. 185 The courts, however, have not enthusiastically accepted the defense of "too drunk to understand." 186 California law states, "No act committed by a person while in a state of voluntary intoxication is less criminal by his having been in such condition." 1 87 In State v. Normandin,1 88 the Minnesota court rejected the intoxication defense, holding that a drunken driver is just as responsible for his actions as is a sober person. 189 The legislature did not intend to excuse an intoxicated person from the sanctions of the implied consent statute. 190 A construction based on this type of reasoning would defeat the statute's purpose' 91 and would lead to an absurd result: the greater the degree of a driver's intoxication, the less the degree of accountability under the implied consent statute. 192 The legislative purpose of the statutory scheme would not be served by allowing a person to retain his driving privileges because he was too drunk to make an intelligent decision when he refused to submit to the test. 193 Likewise, a claim by a driver that he cannot remember whether he refused to take a test is not evidence that there was no refusal. 94 A driver's subsequent lack of recollection is not inconsistent with his having been aware of what was going on at the time of refusal. 95 The statute's effectiveness would be nullified 184. Bush v. Bright, 264 Cal. App. 2d 788, -, 71 Cal. Rptr. 123, 125 (1968) See notes and accompanying text infra Comment, The Theory and Practice of Implied Consent in Colorado, 47 U. COLO. L. REv. 723, 735 n.46 (1976) Bush v. Bright, 264 Cal. App. 2d at -, 71 Cal. Rptr. at 125. The case refers to CAL. PENAL CODE 22(a) (West 1979) (amended 1981) Minn. 24, 169 N.W.2d 222 (1969) Id. at -, 169 N.W.2d at Id Kaufman v. State, 286 So. 2d 723, 725 (La. Ct. App. 1973), cert. denied, 289 So. 2d 156 (La. 1973) Bush v. Bright, 264 Cal. App. 2d at -, 71 Cal. Rptr. at 125. See also State v. Normandin, 284 Minn. 24, -, 169 N.W.2d 222, 224 (1969) (implied consent statute does not set out any specific intent requirement) Garcia v. Department of Motor Vehicles, 253 Or. 505, -, 456 P.2d 85, 88 (1969). All that is required is proof that the test was offered according to statutory instructions and that after all preliminary statutory requirements were met, the test was refused. An assertion that the driver was too intoxicated to understand the options open to him is not a justiciable issue E.g., August v. Department of Motor Vehicles, 264 Cal. App. 2d 52,-, 70 Cal. Rptr. 172, 182 (1968) (driver was drunk and could not recall afterwards if he was asked to take a test or if he refused to take a test; passenger testified that driver's responses to officer's questions were unintelligible) Id.

18 CREIGHTON LAW REVIEW [Vol. 17 and a great many drunken drivers exonerated if a driver who refused to take a test was later excused on the basis of his testimony that he did not remember anything. 196 A suspect who manifests an unwillingness to submit to a test has refused the test and cannot later be found to have been incapable of refusing. 197 The statutory phrase, "otherwise in a condition rendering him incapable of refusal"' 198 refers to incapacity resulting from unconsciousness or some other mental or physical condition. 199 A refusal can be valid regardless of the degree of voluntary intoxication or lack of understanding resulting therefrom; 20 0 the consequences of a refusal are not averted by inebriation In the Washington case of Department of Motor Vehicles v. Mc- Elwain,202 the driver was incoherent and unable to intelligently respond to the arresting officer's request to submit to a breath test The driver was unable to sign a refusal form. 2 4 On the basis of these facts, the Washington court ruled that the officer was justified in concluding that the driver was unwilling to submit Since the driver was not unconscious, his "lack of consent" constituted a refusal and the officer acted properly in not administering a blood test The court found no exemption under the statute for per Hoban v. Rice, 25 Ohio St. 2d 111, -, 267 N.E.2d 311, (1971) (driver found capable of refusal even though he could hardly stand or walk, refused to answer most questions addressed to him, and later had no recollection of the events) Id. at -, 267 N.E.2d at 316 (suspect completely refused; he would not answer officer's questions or give any reasons for his refusal, but just stood silent. Id. at -, 267 N.E.2d at 313) The Florida statute referred to by the court is similar to Nebraska's. The Nebraska statute provides: Any person who is unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by section and the test may be given. NEB. REV. STAT (Reissue 1978). Florida's statutory language is as follows: Any such person who is incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed not to have withdrawn his consent to such test. FLA. STAT. ANN (2)(c) (West 1975) Perryman v. State, 242 So. 2d 762, 763 (Fla. Dist. Ct. App. 1971). See also Bush v. Bright, 264 Cal. App. 2d 788,-, 71 Cal. Rptr. 123, 125 (1968) (stating that the statutory provision referring to incapacity to refuse does not confer any special "rights" upon an intoxicated driver) Perryman, 242 So. 2d at August v. Department of Motor Vehicles, 264 Cal. App. 2d at -, 70 Cal. Rptr. at Wash. 2d 624, 496 P.2d 963 (1972) Id. at -, 496 P.2d at Id Id Id. (officer has no authority to administer blood test without suspect's consent).

19 1983] IMPLIED CONSENT sons who are too intoxicated to comprehend the request to submit to a test. Any intoxicated person who has sufficient control of his faculties to operate a motor vehicle must either submit to a chemical test or risk revocation of his license To excuse excessively drunken drivers would be to exempt from the application of the law those drivers who are most dangerous Confusion resulting from voluntary intoxication is, likewise, an unacceptable defense Any lack of understanding because of intoxication does not affect the finality or effectiveness of a refusal To allow the suspect's subjective state of mind to control his refusal, when his rights have been explained to him, would nullify the statute's procedures and sanctions If a driver is conscious, the only other requirement needed to make him capable of refusing is an understanding by the driver that he has been asked to take a test This is a question of fact An understanding of the consequences of a refusal is not an element of understanding necessary to the validity of a refusal. 214 Whether the driver understands the consequences of refusal is not an independently justiciable issue Objective Criteria as the Accepted Standard for Determining Refusal In deciding whether there was a refusal, a court should consider the driver's words and other objective manifestations of willingness or unwillingness to take the test; 21 6 subjective factors should not be considered. Using an objective standard, the Colorado Supreme Court determined that a driver who was unable to 207. Id Id Smith v. Department of Motor Vehicles, 1 Cal. App. 3d 499, 505, 81 Cal. Rptr. 800, 804 (1969) (officer explained the requirements for the taking of one of the chemical tests, and further advised suspect on consequences of refusal. Officer was not required to do more, since defendant did not appear confused by Miranda warning, which was also given. Confusion, if any, appeared induced by alcohol consumption. Id. at 502, 505, 81 Cal. Rptr. at 802, 804.) Goodman v. Orr, 19 Cal. App. 3d 845, , 97 Cal. Rptr. 226, 234 (1971) Id. at 857, 97 Cal. Rptr. at Martinez v. Peterson, 212 Neb. 168, 171, 322 N.W.2d 386, 388 (1982) (holding driver was incapable of refusing because he did not understand officer's language). Contra Landin v. Texas Dep't of Pub. Safety, 475 S.W.2d 594, 596 (Tex. Civ. App. 1971) (holding there was no evidence to show Mexican-American driver could not understand English, thus making his refusal to consent valid) State v. Hurbean, 23 Ohio App. 2d 119, -, 261 N.E.2d 290, 297 (1970) Winter v. Peterson, 208 Neb. 785, 788, 305 N.W.2d 803, 806 (1981); State v. Hurbean, 23 Ohio App. 2d 119, -, 261 N.E.2d 290, 298 (1970) State v. Hurbean, 23 Ohio App. 2d at -, 261 N.E.2d at Dolan v. Rust, 195 Colo. 173, -, 576 P.2d 560, 562 (1978).

20 CREIGHTON LAW REVIEW [Vol. 17 stand on his own, and who had to be carried to the test room, vomiting, nevertheless was capable of refusal When requested to blow into the breathalyzer machine, the driver refused and said, "I'm too drunk, just throw me in jail." 2 18 The court found this objective manifestation sufficient to support a finding of refusal. 219 The intermediate Ohio court follows the same type of reasoning. 220 It has held that a refusal occurs when the conduct of an arrested motorist is such that a reasonable person in the officer's position would be justified in believing that the motorist was capable of refusal and manifested an unwillingness to submit to the test The Arizona Supreme Court has also adopted the objective method of analysis. In Campbell v. Superior Court, 222 Arizona's highest tribunal held that a refusal can be either spoken or unspoken and occurs when a reasonable person in the officer's position would be justified in construing the motorist's words or actions as a refusal In the opinion of the Arizona court, it is highly likely that a driver who refuses to submit to a chemical test to determine intoxication is a dangerous driver; there is a compelling interest in immediately removing these persons from the highways, pending a hearing on the matter. 224 In Wohlgemuth v. Pearson, 2 25 the Nebraska Supreme Court adopted the "reasonable person in the officer's position" language from Campbell In Wohlgemuth the driver was unable to carry on a conversation. 227 A doctor testified that the defendant had probably suffered a cerebral concussion and that the defendant repeatedly restated questions directed to him. 228 The doctor further testified that when requested to take a test, the driver did not have the presence of mind to make a valid judgment as to the proper course of action. 229 Yet the driver refused at least three times within a half hour to submit to the test, and the Nebraska court held him responsible for these refusals. 230 If the suspect knew he 217. Id. at-, 576 P.2d at Id Id See, e.g., State v. Hurbean, 23 Ohio App. 2d 119, 261 N.E.2d 290 (1970) Id. at -, 261 N.E.2d at 297. See also note 232 infra (Montana requires an officer to determine capacity on the basis of the best available evidence) Ariz. 542, 479 P.2d 685 (1971) Id. at -, 479 P.2d at Id. at -, 479 P.2d at Neb. 687, 285 N.W.2d 102 (1979) Id. at 691, 285 N.W.2d at Id. at 689, 285 N.W.2d at Id Id. at 690, 285 N.W.2d at Id. at , 285 N.W.2d at 104.

21 19831 IMPLIED CONSENT was being asked a question and manifested a refusal, he was, for the purposes of the statute, refusing to take a test Any other result would require the director of the Motor Vehicle Department and the trial court to engage in a "psychological guessing game" as to the driver's state of mind and his capacity to comprehend. 232 In light of decisions such as Wohlgemuth, and those from the other jurisdictions discussed above, the Nebraska court's holding in State v. Brittain appears contradictory. It would seem that Frank Brittain's actions and statements on the night of his accident surely would have constituted a refusal. Before 1982, the court had never condoned the subjective analysis approach taken by the investigating officer in Brittain. 233 The defendant's oral refusal and repeated denials manifested an unwillingness to submit to the test. 234 Yet four members of the court disregarded this evidence and held that law enforcement officials can, in essence, make their own subjective determinations concerning a suspect's capacity to refuse. Other jurisdictions place narrow limits on an officer's discretion in suspected drunken driving situations 235 in order to avoid potential abuse. 236 In Nebraska, however, under the Brittain view, an officer conceivably could order a test before ever requesting a 231. Id. at 691, 285 N.W.2d at Id. Compare State v. Rumley, - Mont. -, 634 P.2d 446 (1981) in which the Montana court applied a similar test but came up with a somewhat different result. Police did not arrest the defendant before obtaining a blood sample. However, Montana does not require a prior arrest if the person is "otherwise in a condition rendering him incapable of refusal." Id. at -, 634 P.2d at 448 (quoting MONT. CODE ANN (2) (1979)). Several witnesses testified that the defendant was conz fused and disoriented and kept repeating, "What happened?" even after being told. The defendant was not coherent in his responses even when he realized he was being asked a question. The court held that there was sufficient evidence of incapacity, and therefore the failure to arrest the suspect before obtaining a blood sample was immaterial. Id. This decision is consistent with the ruling in State v. Mangels, 166 Mont. 190, 531 P.2d 1313 (1975). There the results of a blood test were suppressed because police neither arrested nor informed the defendant of the reason for the blood test. Id. at -, 531 P.2d at The defendant, conscious, and suffering only minor injuries, had the capacity to refuse the test and might have done so had he been requested to submit to it. Id. at -, 531 P.2d at Incapacity must be determined on the basis of the best evidence "reasonably available" to the officer. Rumley, - Mont. at--, 634 P.2d at 448 (citing Mangels, 166 Mont. at-, 531 P.2d at 1315) See Motion for Rehearing and Assignments of Error at 3, Brittain Brief at Appellant at 8, Brittain See, e.g., Hoban v. Rice, 25 Ohio St. 2d 111, -, 267 N.E.2d 311, 315 (1971); DiSalvo v. Williamson, 106 R.I. 303, -, 259 A.2d 671, 673 (1969) State v. Mangels, 166 Mont. 190, -, 531 P.2d 1313, 1315 (1975). See also Brittain, 212 Neb. at , 325 N.W.2d at (McCown, J., dissenting) (under the majority rule, an arresting officer may interpret the suspect's state of mind and can administer a chemical test over the suspect's objections; this gives the officer very broad discretion).

22 CREIGHTON LAW REVIEW [Vol. 17 driver to submit, as long as the officer had some basis for concluding incapacity. 237 This arguably would eliminate the suspect's right of refusal 238 and could increase the potential for violence. 239 The Brittain ruling seems contrary to the purpose of the law. The law aims to hold drunken drivers responsible for their words and actions, rather than excuse them on the basis of their inebriation. 240 The court's holding in State v. Brittain reflects a strained construction of the policies behind implied consent statutes. 241 The court apparently applied a test consistent with the facts of the case rather than with the purposes of the law: reversing the defendant's motor vehicle homicide conviction on the grounds of inadmissible evidence surely seemed undesirable to the members of the court. This alternative, however, would have been more consistent with existing case law. 242 Although it was the prosecution in State v. Brittain which asserted that the defendant was incapable of refusal, it seems inevitable that future drunken drivers will rely on the Brittain holding to plead "too drunk to know" as a defense Drivers will maintain that their refusal should not be held against them, since at the time of refusal, they were intoxicated and unable to grasp the con Neb. at , 325 N.W.2d at (McCown, J., dissenting); see also Mangels, 166 Mont. at -, 531 P.2d at Motion for Rehearing and Assignments of Error at 4, Brittain Under the Brittain rule, if a suspect refuses to submit to the test, the police may determine on their own that the suspect is incapable of refusal. In a subsequent attempt to force the suspect to take the test, violence could easily erupt between the suspect and law enforcement officials State v. Normandin, 284 Minn. 24, -, 169 N.W.2d 222, 224 (1969) The court in Bush v. Bright, 264 Cal. App. 2d 788, 71 Cal. Rptr. 123 (1968), explained the purposes behind the implied consent statutes. It stated that the statutes should be given a practical rather than technical construction. Rational policy considerations, not absurd results, should govern the courts' interpretations. The consequences that might flow from a particular construction of the statute should be considered. The law must be construed with a view to promoting rather than defeating its general purpose and the policy behind it. A strained construction of the statute might impair its remedial effect. Id. at -, 71 Cal. Rptr. at See generally notes and accompanying text supra In the past, a refusal made "knowingly and intelligently" meant only that the driver had been advised of his rights-not that he understood them. Department of Motor Vehicles v. McElwain, 80 Wash. 2d 624, -, 496 P.2d 963, 965 (1972). Lack of understanding did not excuse a driver. Id. See also notes and accompanying text supra (discussing confusion and lack of understanding due to intoxication). However, under the Brittain holding, a person "must know and understand what he is doing" to be capable of refusal. 212 Neb. at 695, 325 N.W.2d at 147 (McCown, J., dissenting). The Brittain holding disregarded a refusal made by a defendant whom the State contended was irrational and unaware of what he was doing. Id. Future drunken drivers will rely on this decision in urging the courts to consider their physical condition and state of mind as an excuse for their refusals.

23 19831 IMPLIED CONSENT sequences of their actions. 244 It seems likely that large numbers of persons who are asked to submit to a test will be highly inebriated and will not fully understand what is happening around them. 245 Persons who manifest a refusal will also be likely to have no recollection of their arrest or refusal. 246 To accept this defense would excuse many drunken drivers from the sanctions imposed for refusing to submit to an intoxication test. The objective approach to the issue of refusal holds that an unequivocal, negative response constitutes a refusal as a matter of law. 247 The abandonment of this theory will result in extended litigation over subjective issues of fact. 248 In the future, silence in response to a request to submit to a chemical test may have more impact than an intoxicated person's direct, oral refusal. Silence has been construed by the courts to constitute a refusal, 249 whereas under the Brittain ruling, one who orally refuses to submit may be found not to have refused. 250 This implies that if a driver really wants to refuse, he should remain silent, rather than voice his intent. In essence, the Brittain ruling removes the defendant's statutory right to refuse The decision in Brittain places a heavy burden on the police. It is now within their subjective judgment whether a defendant who refuses to consent is of such a state of mind as to know what is being asked of him. 252 In the event that an officer accepts an intoxicated suspect's refusal, the Brittain ruling will allow courts to determine that the person was incapable of refusal, thus rendering that suspect untouchable by the law. The Brittain holding thus creates a gaping "legal loophole" for the drunken driving defendant See State v. Normandin, 284 Minn. 24, -, 169 N.W.2d 222, 224 (1969) Motion for Rehearing and Assignments of Error at 3, Brittain Id. at Neb. at 696, 325 N.W.2d at 147 (McCown, J., dissenting) Motion for Rehearing and Assignments of Error at 4, Brittain See notes and accompanying text supra Neb. at , 325 N.W.2d at 148 (McCown, J., dissenting) Motion for Rehearing and Assignments of Error at 4, Brittain Id. at In addition to the main issue concerning capacity to refuse, the Brittain defense asserted three alternative grounds for reversal. The Nebraska Supreme Court quickly disposed of these secondary issues, refusing to disturb the trial court's factual determinations. 212 Neb. at 691, 325 N.W.2d at 145. First, the defendant alleged that the blood test had not been conducted according to state health regulations, particularly in regard to refrigeration of the sample. Id. at , 325 N.W.2d at 145. The court ruled, however, that the requirements of State v. Gerber, 206 Neb. 75, 90-91, 291 N.W.2d 403, (1980), concerning the admissibility of test results, had been met. 212 Neb. at 692, 325 N.W.2d at 145. Second, the defendant argued that the blood test results were inadmissible be-

24 CREIGHTON LAW REVIEW [Vol. 17 CONCLUSION By the act of driving, a person consents to submit to a chemical test if arrested for suspicion of drunken driving. This is the essence of implied consent. Consent may be withdrawn, however, by a refusal to submit. Objective manifestations of willingness or unwillingness, rather than subjective judgments concerning a suspect's state of mind, should determine whether a person has refused. It is a contradiction in terms and an abridgement of individual rights to rule that one who voices a refusal is incapable of refusing. As a matter of law, a person who articulates an unequivocal, "No" in response to a request to take a test should be deemed to have refused. State v. Brittain is apparently the only case in any jurisdiction in the United States to hold that an unequivocal, oral refusal to submit to a blood test may not be a legally sufficient refusal. The holding in Brittain places a heavy burden on police who already find themselves bogged down with the technicalities of drunken driving arrests and convictions. The holding establishes a poor precedent. By making permissible a "too drunk to know" defense, the decision will work to the State's disadvantage in future drunken driving cases. The issue of refusal in relation to implied consent has been one of constant controversy; the three-one-three opinion in State v. Brittain suggests that the matter is not yet settled. Mary Kay Pryor-'85 cause police failed to inform him of his right to have an additional test performed by an independent physician. The court rejected this argument as well. 212 Neb. at , 325 N.W.2d at 146; see also Zadina v. Weedlun, 187 Neb. 361,362-63, 190 N.W.2d 857, 858 (1971). Third, the defendant objected to the trial court's jury instructions regarding the blood test evidence. Relying on State v. Fox, 177 Neb. 238, 249, 128 N.W.2d 576, 582 (1964), the court dismissed the objection, holding that evidence concerning the requirements of admissibility affects only the weight to be given the test and not its actual admissibility. 212 Neb. at 694, 325 N.W.2d at 146.