Appellant, Jack Snodgress, brings this appeal to challenge a judgment of the district court that sustained an order of the Commissioner of the Department of Public Safety which revoked his drivers license for a period of six months. The finding that formed the basis of the revocation and the district court judgment that sustained it, was that Snodgress refused to submit to chemical testing for sobriety as required by the Implied Consent Law, 47 O.S. 1971, §§ 751, et seq.
Snodgress contends that while he did refuse to take the breath test, he did not refuse to submit to a blood test and that the district court erred in finding that he did so refuse. This appeal is before us after the second trial of the cause. At the first trial the district court sustained the Department of Public Safety's demurrer to the evidence. That judgment was subsequently reversed by the Court of Appeals and the cause remanded for the trial which is now the subject of this appeal.
In support of his position, Snodgress presents a single proposition of error. The essence of this proposition is that the evidence presented was insufficient to show
The relevant facts are these. Snodgress was arrested by Officer Kenneth Uffen for Driving Under the Influence of Alcohol on March, 14, 1971, in Oklahoma City. Officer Uffen took Snodgress to the Oklahoma City jail where he was placed in the "breathalyzer room." There the officer read to Snodgress from a chart posted on the wall which outlined the rights of a person arrested for driving under the influence. The officer advised him that he was requested to submit to a breath or blood test for sobriety which would be administered by a qualified person. Snodgress was told that he could refuse both tests, but that such a refusal would result in loss of his driving privileges for six months. Officer Uffen's testimony was that he also advised Mr. Snodgress that he had the right to have an additional blood test performed by a doctor or qualified person of his choice, but Snodgress denied
Both witnesses agreed that after being advised of his rights, Snodgress asked to call his attorney and the officers allowed him to do so.
Testimony concerning the events that followed this phone call is somewhat conflicting. Snodgress testified that he advised Officer Uffen and another officer that, upon his attorney's advice, he would take the blood test if his doctor were present. He stated that the officers asked him the identity of his doctor and that he gave them the names of several doctors who practiced together and indicated that any of them would be all right. Snodgress testified further that the officers did not offer to let him call the doctors and they did not offer to call for him, further that to his knowledge they did not call the doctors. He said that the officers again asked him about the breathalyzer test, and that he told them that he thought he should follow the advice of his attorney. On cross-examination, Snodgress testified as follows:
Officer Uffen testified that after talking with his attorney Snodgress stated that he would take a blood test if it was administered by a doctor of his choosing. Uffen testified that he then tried to explain again to Snodgress that while he did have a right under the law to an additional blood test, he would have to first submit to testing by a doctor or other qualified person of the state's choice so that the state could obtain
Title 47, O.S. 1971, § 753 provides in pertinent part, that:
Under this statute a qualified refusal or conditional consent is a refusal. As stated by the Court in Robertson v. State, ex rel., Lester, Okl., 501 P.2d 1099 (1972):
When a licensee's consent to a blood test for sobriety is qualified by the condition that the test be administered by the physician of licensee's choice, such qualified consent is a refusal. State, ex rel., Dept. of Public Safety v. Lance, Okl., 542 P.2d 506 (1975).
We are, therefore, of the opinion `that Snodgress' testimony alone was sufficient to establish his refusal to submit to chemical tests upon proper request by law enforcement officer. Accordingly, the asserted differences in the testimony given by Snodgress and Officer Uffen as to whether Snodgress did or did not definitely state that he refused all tests or whether his statement was that he would consent to a blood test if his doctor were present, does not present a difference of legal significance. For this reason, Snodgress'
While Snodgress' due process argument is vague, the thrust of his contention is that the officer somehow did not do enough to obtain his physician's presence. The evidence is conflicting. Officer Uffen testified that Snodgress did not mention the identity of his doctor while Snodgress testified that he stated the identity of a group of doctors who were acceptable to him. Standing alone, Snodgress' testimony does not reveal any refusal on the part of the police officers to allow Snodgress to call his doctor. He testified merely that they did not offer him the opportunity to call or offer to call for him, and that to his knowledge they did not call his doctor. His testimony does not show that he ever requested to call his doctor.
Snodgress did request permission to call his attorney and consult with him and about taking the tests requested by the officers. While Snodgress had no right to consult with counsel before refusing or submitting to the tests, (Robertson v. State, ex rel. Lester, supra,) the officers did permit him to make the call.
We are of the opinion that Snodgress and his attorney bore the burden of obtaining the presence of a doctor or other qualified person to administer an additional blood test if he so desired. As stated by the Court in Holland v. Parker, 84 S.D. 691, 176 N.W.2d 54 (1970):
Starrett v. Midwest City, supra, relied on by appellant, is a minority opinion of the Court of Criminal Appeals by Judge Nix, involving questions of suppression of evidence which resulted from the refusal of police to allow defendant, who was arrested on a municipal charge of being drunk in a public place, to use the telephone to call her doctor so that she could procure a blood test to be used in her defense of the charge. That decision has no relevance to any issue raised in this implied consent appeal.
The trial court was justified in finding that a preponderance of the evidence showed that appellant, Jack Snodgress, refused to submit to chemical testing for sobriety as required by the implied consent law.
The judgment of the trial court sustaining the revocation is affirmed.
All the Justices concur.