Peterson v. State

ZASTROW, Justice

(concurring specially)-

I agree that the actions and words of Peterson constituted a refusal under our implied consent law. However, I would adopt the conditions stated in Lund v. Hjelle, 1974, N.D., 224 N.W.2d 552, as circumstances under which an earlier refusal might be rescinded and the driver allowed to take a chemical test. Those conditions are:

*412“[W]here * * * one who is arrested for driving while under the influence of intoxicating liquor first refuses to submit to a chemical test to determine the alcoholic content of his blood and later changes his mind and requests a chemical blood test, the subsequent consent to take the test cures the prior first refusal when the request to take the test is made within a reasonable time after the prior first refusal; when such a test administered upon the subsequent consent would still be accurate; when testing equipment or facilities are still readily available; when honoring a request for a test, following a prior first refusal, will result in no substantial inconvenience or expense to the police; and when the individual requesting the test has been in police custody and under observation for the whole time since his arrest.” 224 N.W.2d at 557.

However, for the reasons hereinafter stated, I would concur in the reversal of the circuit court decision.

At the scene of the arrest, Peterson was requested to submit to a breathalyzer test. He was then taken to the Meade County jail and again requested to submit to the breathalyzer test, then to a blood test. Peterson’s actions and words again constituted a refusal. Acting upon that refusal, Peterson was booked and allowed to call a friend. The friend suggested that he take the test, but Peterson was not certain and did not advise the arresting officer that he would consent. He was then placed in a cell. At the time, the arresting officer left the jail and returned to his duties.

In the meantime, Peterson’s friend called an attorney, called Peterson at the jail, then came to the jail and conversed with Peterson in the cell. At the urging of the friend, Peterson finally agreed to consent and requested that the jailer call the arresting officer. The officer was located at the police station and advised that Peterson would now take the test. This the officer refused to do. This rescission of the earlier refusals came one hour after the last request had been made by the officer at the jail and one hour and twenty-three minutes after the arrest.

The rescission made here does not satisfy the Lund conditions for three reasons: (1) a rescission made one hour after the driver has been presented the opportunity to take the test and refused has not been made within a reasonable time,* (2) a rescission made after the officer has returned to his other duties for the length of time involved here is a substantial inconvenience, and (3) a rescission was not made when Peterson had been under continuous observation since the arrest.

In this manner, I disagree with the result of Lund, if not the rationale._ I think that in Lund the refusal to submit to the blood test at the hospital when the test was available was final. A rescission one hour after the driver was given the opportunity to take the test is unreasonable.