dissenting.
Neb. Rev. Stat. § 39-669.15 (Reissue 1978) provides in part: “If a person arrested pursuant to section *69539-669.08 refuses to submit to the chemical test of blood, breath, or urine required by that section, the test shall not be given and the arresting officer shall make a sworn report to the Director of Motor Vehicles.” The corollary to the Nebraska implied consent statute is quoted in the majority opinion: “Any person who is unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by section 39-669.08 and the test may be given.” Neb. Rev. Stat. § 39-669.10 (Reissue 1978).
In this case it is undisputed that the defendant, in specific intelligible language, refused to submit to a blood test. The State admits that the defendant refused, but contends that his other comments show that he was confused, irrational, and was therefore in a condition rendering him incapable of refusal. The State therefore argues, and the majority opinion now holds, that because he was irrational and did not know what he was doing, he was incapable of refusing to take the test. His refusal and the statutory command that the test not be taken may therefore be disregarded and the test taken anyway.
It is a contradiction in terms to hold that a person who has just refused to take a test is incapable of refusing. The only explanation for such a contradiction in terms is that, to be capable of refusing, a person must know and understand what he is doing. This court has consistently held directly contrary to that assumption. See Wohlgemuth v. Pearson, 204 Neb. 687, 285 N.W.2d 102 (1979). In all cases we have been able to find in which the suspect manifested a refusal to submit to a chemical test by act or by words, and even where the evidence indicated he was injured, intoxicated, confused, or did not understand the import of his refusal, the courts of this country have found the suspect capable of valid refusal. See, Wohlgemuth v. Pearson, supra; Dolan v. Rust, 195 Colo. 173, 576 P.2d 560 (1978); Hoban v. *696Rice, 25 Ohio St. 2d 111, 267 N.E.2d 311 (1971); State v. Hurbean, 23 Ohio App. 2d 119, 261 N.E.2d 290 (1970).
We have been unable to find any criminal or civil case in any jurisdiction in which a court found a suspect incapable of refusal where the suspect did, in fact, manifest some sort of oral or physical refusal. Only where the suspect gave no meaningful response whatever, or where there was no understanding of the language, was a suspect found to be in a condition rendering him incapable of refusal. See, Martinez v. Peterson, ante p. 168, 322 N.W.2d 386 (1982); State v. Rumley, _ Mont. _, 634 P.2d 446 (1981).
Nebraska has held that a conditional or qualified refusal to take a test is not sanctioned by the act and that such a refusal is a refusal to submit to the test. Refusal occurs whenever the suspect so conducts himself as to justify a reasonable person in the position of the requesting officer in believing that the suspect understood that he was asked to submit to a test and manifested an unwillingness to take it. See Wohlgemuth v. Pearson, supra. In the language of this court in that case: “[A]ny other result would force the director and the trial court into a psychological guessing game as to the appellee’s state of mind and his degree of capability of comprehension. . . . The evidence is overwhelming that the appellee understood he was requested to take the test and did, in fact, articulate a refusal. Therefore, the judgment of the trial court that the appellee was mentally ‘incapable of refusal’ does not satisfy the terms of the statute . . . .” Id. at 691-92, 285 N.W.2d at 104,
It is quite clear in all the cases that the defendant’s manifestation or state of mind in refusing to take the test is completely irrelevant. In the case at bar the majority opinion relies on some evidence that the defendant might have been suffering from *697amnesia to explain his irrational statements and to support the conclusion that he did not know or understand what he was doing when he refused. It is just as logical to assume that his lack of knowledge and understanding, if any, was due to his intoxication. In either event his state of mind is entirely irrelevant.
It is difficult enough for a police officer to determine whether or not a suspect has refused to take a chemical test without also having to decide, after a refusal, as to whether the suspect was capable of refusing. In a great many cases of driving while intoxicated the defendant probably does not know what he is doing, but it would be absurd in view of our previous cases to argue that a defendant in such a condition, who refused to take a test, was incapable of refusal.
As the Ohio court put it: “The subjective state of mind of the licensee cannot control the outcome of the proceedings, and a police officer is not required to know the state of mind of the person arrested and determine whether such person understood he was refusing to submit to the test. To require that would place an impossible burden on the arresting officer. ... It is possible for a licensee to be in such a state of intoxication that he does not understand what is happening, and, at the same time, by words, acts and general conduct to manifest an unwillingness or outright refusal to take the test.” Hoban v. Rice, supra at 117, 267 N.E.2d at 315.
Discussing the same issue, the Supreme Court of Colorado said: “Therefore, it is the driver’s external minifestations [sic] of unwillingness or his outright refusal to take the test which are relevant, and not the driver’s state of mind or his later recollection of events.” Dolan v. Rust, supra at 175, 576 P.2d at 562.
Under the majority opinion in the present case, whenever there is a specific oral refusal to take a *698chemical test, the arresting officer may then interpret the suspect’s state of mind, and if the refusal is accompanied by irrational statements or indications that the suspect does not know what he is doing, the officer can administer a chemical test over the suspect’s objections. In effect, the police officer is given the broad discretion to determine when a refusal is really not a refusal and to take the test in contravention of the statute. It should be noted in this connection that the present case is a criminal case in which the defendant clearly ought to have the benefit of the specific statute requiring that in the event of refusal the test shall not be taken. There is no logical or practical reason to force police officers to speculate as to whether a particular suspect’s refusal to take a test was due to his state of mind or physical condition. Such a result forces police officers and the court into “a psychological guessing game as to the licensee’s state of mind and his degree of capability of comprehension.”
The statute authorizing a chemical test upon a person who is “incapable of refusal” should not be interpreted to allow the test to be taken where a suspect has, in fact, refused but, in the opinion of a law enforcement officer, the refusal was based on irrational or unintelligible grounds. The trial court’s refusal to exclude the blood test in the present case was erroneous.
Krivosha, C.J., and Caporale, J., join in this dissent.