dissenting.
In every case of this nature at least two things will have taken place. A suspect under arrest will have been offered the test and thirty minutes will have passed without it having been administered. These are the only circumstances in this case that mirror those in Seders. There, although the suspect denied that he knew his time had started to run, the trooper testified, “ T requested Mr. Seders to take the breath test and in fact requested him three times but Mr. Seders refused to take the test and said he was not going to take the test until he talked with his lawyer.’ ” 298 N.C. at 455, 259 S.E. 2d at 546. Based on this and other testimony, the trial judge found that plaintiff wilfully refused to submit to the test. On appeal plaintiff contended that the facts presented to the trial court were insufficient to support its determination that the refusal was wilful. Crucially missing, he argued, is any evidence that he had knowledge that his time was running while he was waiting for his attorney to return his call. The Supreme Court disagreed and noted that the trooper testified that “he warned plaintiff on three occasions that his time was running out and told plaintiff how many minutes he had remaining.” Id. at 461, 259 S.E. 2d at 549. The Court then affirmed the trial court by applying the following familiar rule. “The findings of the trial court are conclusive on appeal if there is evidence to support them. This is true even though the evidence might sustain findings to the contrary.” Id. at 460-61, 259 S.E. 2d at 549 (citations omitted). The Court then went on to dispose of other issues that are not raised in the case before us. For example, plaintiff here, unlike the one in Seders, does not contend that *366he had a right to delay the test beyond thirty minutes, that he had a constitutional right to counsel before taking the test or that the thirty minute limit is so unreasonable as to be in violation of due process. The Court in Seders surely did not hold that a mere showing that a conscious suspect did not take the test within thirty minutes of the time it was properly offered precludes the judge of the facts from finding or failing to find a wilful refusal. To the contrary, it merely affirmed the long-standing rule in this State that it is the exclusive function of the trial judge to make that determination and that his determination is conclusive if there is evidence before him to support that determination.
The burden of proof was on the State to persuade the trier of the facts that plaintiff wilfully refused to submit to the test. It failed to carry that burden. Even if the burden of proof had been on plaintiff to disprove a wilful refusal, he offered evidence from which the trial judge could and properly did conclude that he had met that burden. The finding supports the judgment. The judge is not required to find and recite every evidentiary fact. He needs to find only the ultimate facts. In my opinion he has done so. Williams v. Insurance Co., 288 N.C. 338, 218 S.E. 2d 368 (1975); Peoples v. Peoples, 10 N.C. App. 402, 179 S.E. 2d 138 (1971).
The court’s seventh finding of fact is as follows, “Petitioner did not decline to take the test but indicated to Trooper Brown that he would like to contact an attorney or have an attorney present during the test.” There is ample evidence to support that finding as well as the others made by the court. Plaintiff’s evidence tends to show the following. He was well aware of the six month automatic license suspension penalty for refusing to take the test. He wanted to take the test to avoid that penalty. He did not refuse to take the test and did not intend to do so. He was in a strange town and wanted to first talk with an attorney. He did not have a watch and there was not a clock in the breathalyzer room. The trooper told him when he had used twenty minutes but did not thereafter advise him or his attorney that his time was about to expire. He did not learn that his time was about to expire until he asked the trooper to administer the test. He relied on a clock in the magistrate’s office from where he was trying to telephone an attorney. There was a discrepancy between the time on that clock and the trooper’s watch. The evidence raised a pure question of credibility which he resolved in *367favor of plaintiff by finding that he did not at any time decline to take the test. I note also that the court found that the test was offered at the end of the thirty-minute period. Significantly, however, he did not find that the trooper advised plaintiff at that time that his time was about to expire although the trooper so testified. My vote is to affirm the judgment of the trial court.
I would also like to suggest that the purpose of the statute is to gather evidence on the degree of a suspect’s intoxication in as many cases as possible. It was not intended as a snare for the summary revocation of licenses. I do not suggest that the time should be extended for even one second when the accused is obviously procrastinating. On the other hand, sound judgment should be exercised with the goal being to get the evidence if it is reasonably possible.