dissenting. In cases arising under R. C.
4511.191, the criminal offense of driving while under the influence of alcohol and the civil sanction of suspension of driving rights for refusal to take the required sobriety test, are separate and distinct matters. Until the time that there is a refusal to take the test it is difficult to distinguish between them. The civil proceeding is based upon the arrest and refusal, and the refusal carries with it the penalty of automatic forfeiture of driving privileges for the prescribed period.
According to Hoban v. Rice (1971), 25 Ohio St. 2d 111, second paragraph of the syllabus, there are four conditions precedent to suspending a driver’s license under R. C. 4511.191. The third condition is that “the person refused to submit to a * * # test * * * upon the request of the arresting officer.” The basis for this interpretation of R. C. 4511.191 is to afford due process in a proceeding based upon the refusal of an accused to take the test. See State v. Starnes (1970), 21 Ohio St. 2d 38.
After the appellant was arrested he had the right to forthwith communicate with counsel by virtue of R. C. 2935.20. Appellant made a call to have his attorney pres*349ent at the police station; his attorney did appear within the two-honr period.
The key issue presented by this case is the meaning of the word “refusal.” Did the appellant refuse to take the test so that the implied consent provision of R. 0. 4511.191 becomes applicable? I am of the opinion that the appellant did not refuse to take the test.
In In re Masters (1956), 165 Ohio St. 503, 506, this court adopted the dictionary definition of “refusal” as the denial of anything demanded, solicited or offered for acceptance.
The record reveals the following testimony by Patrolman Hamp:
“Q. Do you recall immediately after that time what happened? I am asking immediately after, if you can recall. You said in the record here that he said he wouldn’t take the test until he got a hold of his attorney?
“A. Yes sir. Then, when I started asking questions from the alcoholic influence test he said he would not answer any questions at all.”
On cross-examination, Patrolman Hamp further testified:
“Q. And during that period of time did you have any other conversation with Mr. McNulty?
“A. From what I can recall, it was mostly him asking if he could call his attorney and Mr. Short.
a* # #
“Q. Officer, during that period of time wasn’t it a fact that he consistently requested an attorney to he present?
“A. Yes, sir. He made a statement that he wouldn’t take the test until he could get a hold of his attorney.
“Q. And he was attempting to contact someone at that time that you are aware of?
“A. He was on the phone trying to call someone, yes, sir.
‘ ‘ Q. Isn’t it a fact that it was at that time that he told you that he wanted an attorney present for anything further that was involved in this case?
*350“Mr. Cables: Objection, it is irrelevant.
“The Court: Overruled. You may answer that.
“Witness: Yes, I would say that.
“Q. Including the examination that you are referring to; that you are giving him?
“A. Yes, with the statement he made I would say he just didn’t want to answer nothing until he had counsel.”
Appellant in this case did not inform the arresting officer that he would not take the test. Rather, he stated that he would not make any decision until he had been advised by counsel. In the law of contracts, it is not a refusal or rejection of an offer to take the offer under advisement. “An offer is rejected when the offeror is justified in inferring from the words or conduct of the offeree that the offeree intends not to accept the offer or talce it under further advisement.” 1 Restatement of Law, Contracts, 45, Section 36. (Emphasis added.) Nor is it a “refusal” in the common understanding of the word. Some reasonable time is necessary to make any decision, particularly one involving matters of possible criminal prosecution and loss of driving rights. A request to confer with counsel is a reasonable one, and when that request is not made solely for purposes of delay and does not in fact result in delay beyond the statutory two-hour period within which the test is effective, I am of the opinion that it is not a refusal.
The majority relies upon cases which have to do with a direct “refusal,” and the statute is clear as to what occurs when there is a “refusal.” In my opinion, interpreting appellant’s conduct in this case as a “refusal,” when appellant only failed to take the test until he consulted with counsel, is to add a meaning to the word that is not there.
Under the circumstances of this case, I would reverse the judgment of the Court of Appeals.
Corrigan, J., concurs in the foregoing dissenting opinion.