(dissenting) — I respectfully dissent. The majority bisects the term "refusal” into two component parts: factual refusal and legal refusal. It then proceeds, without any statutory basis, to establish a so-called flexible rule to determine when we will decline to treat a factual refusal as a legal refusal. According to the majority’s opinion, if the factual refusal is not a legal refusal, the arresting officer must disregard the statutory consequences of the driver’s unambiguous and unequivocal refusal to submit to a blood or breath test. In encouraging a case-by-case analysis of situations where a driver has second thoughts about his or her refusal to be tested, I believe we adopt a standard that is not only contrary to the language of the implied consent statute, but is also poor public policy.
I
, Initially, it is important to note that Lax did not assign error to the trial court’s finding of fact that he refused to allow the blood sample to be drawn at the time Trooper Przygocki made his initial request. Therefore, we accept as a verity on appeal that Lax unequivocally "refused” to submit to a blood test. Metropolitan Park Dist. v. Griffith, 106 Wn.2d 425, 433, 723 P.2d 1093 (1986). Furthermore, Lax never unequivocally withdrew his refusal to the trooper’s *20request. Rather, approximately 12 minutes after Lax’s first refusal, a hospital nurse asked Lax if she could draw blood. Lax refused a second time. It was only after the trooper advised Lax that the nurse wished to draw blood for medical purposes that Lax consented to the blood draw, and then also inquired whether the trooper still wanted a blood sample, as well.
II
The majority, nevertheless, concludes that we should disregard Lax’s refusal in light of his later change of heart and subsequent consent to the drawing of blood. I disagree. This result is contrary to the explicit language of the implied consent statute, RCW 46.20.308.
RCW 46.20.308(6) provides that the Department of Licensing, upon receipt of a sworn report by an arresting officer that a suspect refused to submit to a test, "shall revoke the person’s license or permit to drive . . .”. When interpreting a statute, we must give effect to the plain meaning of the statutory language. Cherry v. Municipality of Metro Seattle, 116 Wn.2d 794, 799, 808 P.2d 746 (1991). Here, the statute is explicit and clear.
Nonetheless, the majority claims that the flexible rule "is the better and fairer rule” for persons arrested for driving under the influence of intoxicating liquor. Majority, at 14. Again, I disagree. The implied consent statute, RCW 46.20.308, contains many safeguards to protect the driver from an unfair revocation of his or her license to drive. We need not apply a judicial overlay of additional protections.
The statute requires the officer to advise the driver
of his or her right to refuse the breath or blood test, and of his or her right to have additional tests administered by any qualified person of his or her choosing as provided in RCW 46.61.506. The officer shall warn the driver that (a) his or her privilege to drive will be revoked or denied if he or she refuses to submit to the test, and (b) that his or her refusal to take the test may be used in a criminal trial.
RCW 46.20.308(2). The driver has a full and fair opportunity to consider the consequences attached to either choice, and *21then has the opportunity to submit or refuse the test. This rule is fair to law enforcement and to the driver. State v. Whitman Cy. Dist. Court, 105 Wn.2d 278, 281-82, 714 P.2d 1183 (1986); see Clyde Hill v. Rodriguez, 65 Wn. App. 778, 786-87, 831 P.2d 149, review denied, 119 Wn.2d 1022 (1992); Keefe v. Department of Licensing, 46 Wn. App. 627, 632, 731 P.2d 1161, review denied, 108 Wn.2d 1018 (1987).
If the arresting officer classifies the driver’s response as a refusal, the driver may challenge that characterization by requesting a formal hearing. RCW 46.20.308(7). At this hearing, the driver may challenge the facts surrounding the refusal. Martinez v. Department of Licensing, 70 Wn. App. 398, 402, 854 P.2d 43 (1993). The hearing officer must make findings of fact. RCW 46.20.332. If dissatisfied with the outcome of the formal hearing, the driver may then appeal to the superior court. RCW 46.20.334. The driver is entitled to a trial de novo in superior court. RCW 46.20.334; Burnett v. Department of Licensing, 66 Wn. App. 253, 832 P.2d 1321 (1992). The Department of Licensing has the burden at a trial de novo to prove that the driver refused to take the test. Martinez, 70 Wn. App. at 402, 403. The trial court, in a trial de novo pursuant to the statute, must consider all the facts and circumstances surrounding the incident to determine if there was an unambiguous refusal. Wolf v. Department of Motor Vehicles, 27 Wn. App. 214, 217, 616 P.2d 688 (1980).
Ill
Furthermore, the majority’s decision is inconsistent with good public policy. It permits an arrested driver to unequivocally refuse, then change his or her mind, and have the court relabel the initial refusal as a nonlegal refusal. In so doing, it provides the arrested driver an opportunity to manipulate and negotiate — first refusing, then consenting. Our new "flexible approach” also places an unnecessary additional burden on law enforcement. Upon receipt of a refusal, the officer cannot automatically move to his or her next official duty. Instead, the officer, faced with an ambivalent driver, will need to decide whether the driver’s initial refusal was a *22legal refusal or merely a factual refusal. The officer will have to weigh and balance the driver’s possible multiple changes of mind to determine if they occurred within a "reasonable time” or satisfied the other factors established by the majority. The officer then may be further detained by the necessity of rewriting his or her report. Meanwhile, the officer will be unavailable to deal with other, perhaps more urgent, needs.
A New Jersey court, faced with the same issue that we deal with today, commented:
We are persuaded that a bright line rule should be adopted, consistent with a growing majority of other jurisdictions with a similar implied consent law, which precludes a defendant from curing a refusal.
State v. Bernhardt, 245 N.J. Super. 210, 217, 584 A.2d 854 (1991).
Along with statutory and case analysis, the Bernhardt court supported its decision with a review of the policy implications of allowing a "cure” of a refusal, particularly noting "our strong public policy of removing drunken drivers from our highways”. Bernhardt, at 219.
The rule we adopt today obscures the law, and will foster delay and indecision. In light of the clarity of the implied consent statute and its ample protections for arrested drivers, along with the benefits to law enforcement of clear, straightforward procedures, I believe the Currier court’s so-called "bright line” rule is correct. I would affirm the revocation of Lax’s driver’s license.
Review granted at 125 Wn. 2d 1001 (1994).