Harbison v. Secretary of State

Per Curiam.

Arthur Lee Harbison appeals as of right from a circuit court order affirming a decision of the Secretary of State, pursuant to MCL 257.625(f); MSA 9.2325(6), to suspend his driver’s license for six months for an unreasonable refusal to take a breath-analysis test. He claims that the decisions of the circuit court and the Secretary of State were inconsistent with the rule stated by this Court in People v Castle, 108 Mich App 353; 310 NW2d 379 (1981).

In Castle, the defendant initially refused to take the test without first consulting with his attorney. The attorney arrived at the police station 70 minutes later and, after consulting with the defendant, requested that a breath-analysis test be administered. Relying on a standard departmental policy, the police refused to administer a test because it had not been requested within one hour of the initial refusal. Defendant had not previously *65been informed of this policy. This Court held, at 108 Mich App 357:

"Pursuant to the statute, any person charged with driving a vehicle while under the influence of intoxicating liquor shall be informed: (1) he has a right to demand a test, (2) if he takes a chemical test administered at the request of a police officer he may have a person of his own choosing administer a test, (3) he has the option to take only the breath test, and (4) he has a right to refuse the test and the consequences of such a refusal.
"We are guided by these statutory requirements to hold that any person charged with duil must be informed of police regulations and rules, if any, that materially affect him to insure that the accused has an opportunity to make an informed decision. This is particularly so when one considers the impact of the choice and the fact that the person arrested does not have the assistance of. counsel in deciding whether to submit to a test. See Holmberg v 54-A Judicial Dist Judge, 60 Mich App 757; 231 NW2d 543 (1975).
"In this case, defendant was deprived of the opportunity to make a knowing choice of whether to submit to the test when police failed to inform him timely of material departmental policy. We do not intimate an opinion in this decision as to the propriety of the departmental policy. We do say that police policy which prohibits a defendant from demanding a chemical test after a prescribed time must first be explained to the defendant, enabling him to make an informed decision.” (Emphasis added.)

Here, as in Castle, the department had a policy of not administering a breath-analysis test if it was not requested within one hour of an initial refusal. It is not disputed that Harbison was not informed of this policy.

Even though Harbison thought that once he refused to take the test he could not change his mind, the police were under the obligation to tell *66him of department policies. In fact, it is more than likely that, after thinking it over and after the initial trauma of arrest, he would have decided to change his mind.

Reversed.