dissenting. Subsection (B) of E. C. 4511.191, the implied-consent statute under consideration *121in this appeal, provides that any person who is dead, unconscious or otherwise in a condition rendering him incapable of refusing to submit to a chemical test shall be deemed not to have withdrawn consent provided by subsection (A) thereof and the test may be administered.
The majority, in effect, finds that this appellant was capable of refusing even though the record establishes, without contradicting evidence:
1. That defendant pleaded guilty to the charge of driving while under the influence of alcohol;
2. That defendant, in the hearing on appeal of the driver’s license revocation, testified that he did not remember being arrested, or being asked to take a test, and his first recollection was awakening in the Upper Arlington jail;
3. That patrolman Whitmore, the arresting officer, testified on cross-examination:
“Q. At the time that you requested Mr. Hoban and asked him to take the test, do you feel he was able to give you an answer? I mean, do you feel that he knew what he was saying?
“A. I can only say, sir, that Mr. Hoban in my opinion was very intoxicated. Not only did his driving indicate so, but his overall actions. So I couldn’t intelligibly say whether he knew what 1 was taking about or whether he didn’t.
“Q. Maybe he wasn’t capable of refusing the test.
“A. That is possible. I couldn’t tell you for sure.” (Emphasis added.)
Then, on redirect, he testified, as follows:
“Q. Was he able to stand on his feet, most of the time?
“A. Well—
“Q. He wasn’t passed out?
“A. Most of the time. He wasn’t passed out.
“Q. Did he walk into the police station?
“A. With my help and another officer’s help, yes, sir.
“Q. But he wasn’t carried in?
*122“A. No sir. He wasn’t.
f f # * *
“The Court: Yonr testimony is that yon did explain it to him and asked him to take this Breathalyzer test, and he said what? What was his response after this?
“The Witness: Yonr Honor, it is hard to explain. He completely refused, would not answer, or give any reasons. Along with his right to make a phone call, he completely refused to do so on this.
“The Court: In other words, he just stood silent for all intents and purposes?
‘ ‘ The Witness: Except when he was disobeying a lot of our normal operation procedures and we had to kind of calm him down.’’ (Emphasis added.)
Nothing further need be adduced to demonstrate that, although appellant was not dead or unconscious, he obviously was incapable of understanding or refusing to submit to the test in question. Under the facts as reflected by the record, the police should have administered the chemical test, as authorized by the statute, rather than suggest refusal by appellant, which was unsupported by the evidence, thus securing an automatic suspension by the Registrar of appellant’s driver’s license for six months, contrary to the provisions of R. C. 4511.191 and thereby infringing on the constitutional rights of appellant.
I would reverse the judgment of the Court of Appeals.