Gibb v. Dorius

CROCKETT, Justice

(dissenting):

I dissent. There are two reasons why the decision is in error: The first, and most important, is that the excuse later given and now urged by the plaintiff for failing to cooperate in determining his degree of intoxication had nothing whatever to do with his reason for refusal at the time of arrest. There is not a shred of evidence that at fhe time the defendant was requested to cooperate in the testing procedure he made any objection whatsoever on the ground that Mr. Davis was not qualified ,or authorized to take his blood. What is crystal clear is that his stated desire to have an attorney present was a stalling procedure. As the facts appear, there could have been a licensed physician, or any number of them, standing by to take blood, and this plaintiff’s attitude would have been exactly the same. I don’t see what good an attorney would have been in such a procedure except to advise him whether to consent or refuse; and he refused.

The testimony of the officer stands undisputed :

Q. And what happened after that?
A. Then he was asked again if he would submit to the test and he told me he would refuse until his attorney was present because if we took his blood, he would lose his license, but if he refused and we didn’t wait for his attorney, he could get by the refusal hearing. [Emphasis added.]

In any view of fairness and justice I can see, the foregoing should put the matter at rest. But quite beyond this, the second reason is that, even if the above had had anything to do with his refusal, the said Mr. Davis was in fact qualified and “duly authorized” to take the blood sample. The record shows that Mr. Davis was on the list of those approved by the State Division of Health to administer the blood test, and that he is responsible to and monitored by that state agency as to the procedure in running such tests. As to laboratory technicians, the State does not require licensing, as it does in the case of physicians, nurses and others. Since licensing is not required for laboratory technicians and *303since the courts in construing statutes should strive to give effect to the legislative will wherever possible, it follows that one who is participating in, and who is qualified under, the proficiency rating program of the State Division of Health should be deemed “duly authorized” within the meaning of Section 41 — 6—44.10(f), UC.A.19S3.

I do not make any argument as to the merits or demerits of taking blood to determine intoxication. It is the law as enacted by our legislature; and it is related to the public safety and welfare. Those who administer it should do so with efficiency and with fairness and impartiality; and the courts should honor the law and support those who enforce it. If this statute and its application are repugnant to anyone’s sensibilities, the remedy is to change the law, not to refuse to support its enforcement.

Notwithstanding the belabored ex post facto efforts to justify defendant’s conduct by using a later thought of excuse that he did not voice at the time, the undeniable truth is that he did “refuse.” Therefore, it is my opinion that he should be held accountable as the law provides.

ELLETT, J., concurs in the views expressed in the dissenting opinion of CROCKETT, J.