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MATTER OF SMITH

No. 16979.

770 P.2d 817 (1989)

115 Idaho 808

In the Matter of the Suspension of the Driver's License of Glenn SMITH. Glenn SMITH, Petitioner-Appellant, v. The STATE of Idaho, Respondent.

Court of Appeals of Idaho.

March 8, 1989.

Attorney(s) appearing for the Case

Richard G. Smith (argued), Kevin J. Beaton and John Thomas Hawley, Jr., Hawley, Troxell, Ennis & Hawley, Boise, for petitioner-appellant.

Jim Jones, Atty. Gen. by Myrna A.I. Stahman (argued), and David R. Minert, Deputy Attys. Gen., Boise, for respondent.

BURNETT, Judge.

Idaho Code § 18-8002(4) provides that if a motorist "refuses" to take a blood-alcohol test after he has been arrested for driving under the influence, his operator's license shall be suspended. Today we are asked to decide whether the test has been "refuse[d]" if the motorist initially declines the test but shortly thereafter agrees to take it. As explained in more detail below, we hold that there is no refusal if the assent is still timely and...

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