Mills v. Swanson , 93 Idaho 279 ( 1969 )

DONALDSON, Justice.

On November 29, 1967, the respondent Carole J. Swanson, was involved in a one-car accident at the intersection of Troy Road and Harrison Street in the City of Moscow. Two officers of the Moscow Police Department helped the respondent from her automobile and upon observing her manner of speech and the smell of intoxicants on her breath, placed her under arrest for driving while under the influence of alcohol. Respondent was driven to the police station where the two officers requested several times that she submit to a chemical test for the purpose of determining the alcohol content in her blood. Respondent remained silent. The officers interpreted her silence and general attitude as a refusal to submit to the test. At the time of her arrest respondent was bleeding, had lost numerous teeth, had sustained head injuries and a fracture of the periosteum. She was conscious but could have been dazed in the opinion of the arresting officer. One of the officers made a sworn affidavit and filed a complaint with the Department of Law Enforcement stating that the respondent had refused to submit to a chemical test of her blood.

On December 14, 1967, the Commissioner of Law Enforcement sent respondent an Order and Notice of Pending Suspension of her license to drive for refusal to submit herself to a chemical test of her blood pursuant to I.C. § 49-352. At respondent’s request an administrative hearing was held on January 18, 1968 in Moscow, resulting in a' finding that respondent had refused to submit to the test and an Order was issued suspending her license for a period of 90 days. On March 1, 1968 respondent filed in the district court for a review pursuant to I.C. § 67-5215 (limited review) of the determination made by the administrative agency. However the district court treated the appeal as if it were brought pursuant to I.C. § 49-334 (de.novo hearing).

Based on the evidence adduced at the administrative hearing, the district court found as Amended Finding of Fact III that “After having been placed under arrest and requested to submit to a chemical test, petitioner made no definite oral statement either accepting or refusing to submit to said test.” As Amended Conclusion of Law II, the district court determined that, “petitioner, Carole J. Swanson did not refuse to take a chemical test, said test provided by § 49-352 of the Idaho Code, silence being insufficient to constitute a refusal.” These findings are in direct contradiction to the findings of fact made by the administrative agency that “Pursuant to Section 49-352, Idaho Code, you have refused to submit to a chemical test of the blood to determine' the alcohol content of the blood, at Moscow, Idaho.” It should be noted that the finding of fact made by the agency is a conclusion of law and therefore erroneous.

The Department of Law Enforcement has appealed to this court on the ground that the silence exhibited by respondent after repeated requests to submit to the chemical test pursuant to I.C. § 49-352, constituted a refusal within the meaning of the statute.

The principal issue in this case is-whether under these facts silence in response to a request to submit to a chemical test of the blood constitutes as a matter of law, a withdrawal of the statutorily granted consent to such test, thereby warranting suspension of a driver’s license pursuant to I.C. § 49-352.

This court in the case of State v. Bock, 80 Idaho 296, 308, 328 P.2d 1065, 1072 (1958), said:

“By operating a motor vehicle in this state the defendant is ‘deemed to have given his consent to a chemical test’. The only way he can withdraw that consent is to expressly refuse the test. So under our' law if he neither refuses nor consents, expressly, the test may be made.”

In the case at bar, the respondent did not at any time. expressly refuse to take the test. Expressly means in direct or unmistakable terms. Webster’s Third New International Dictionary (Unabridged); Black’s Law Dictionary 692 (Revised 4 ed. 1968). Expressly means declared and not merely left to implication. Magone v. Heller, 150 U.S. 70, 14 S.Ct. 18, 37 L. Ed. 1001 (1883); City & County of San Francisco v. Western Airlines Inc., 204 Cal.App.2d 105, 22 Cal.Rptr. 216 (1962). Thus where an individual has neither refused nor consented, but for some reason within the discretion of the officer, the test is not administered, it cannot be said that there was an express refusal to take the test.

In this case the facts were stipulated and there was no dispute with regard to them. However there was a dispute concerning the legal significance and effect of these stipulated facts. Phrased another way, only a question of law was presented to the district court. Since only a question of law was involved the judiciary, i. e., the district coürt, rather than an. administrative agency, was in a better position to apply the applicable law.-

We emphasize however that the question as to what constitutes a refusal to take the test must depend on the circumstances. In the case at bar, respondent, injured and in a dazed state, failed to respond to the officer’s request. Under these circumstances it cannot be said that silence constituted a refusal to submit to a chemical test for determining the alcohol content in the blood. If the officer was in doubt he could have requested the respondent to sign a written authorization and waiver for the administration of the test.

Appellant asserts the trial court erred in its determination that I.C. § 49-334 is the exclusive appeal proceeding under I.C. § 49-352 and that the review provisions of I.C. § 67-5215 are not applicable.

On January 1, 1966, the Administrative Procedure Act, Chapter 52, Title 67, of the Idaho Code went into effect. However, I.C. § 49-334¹ passed by the Idaho Legislature in 1961 also provided a means of review for an individual who has had his license to drive suspended by an administrative agency. The Administrative Procedure Act, provides that it,

“does not limit utilization of or the scope of judicial review available under other means of review, redress or relief provided by law.” I.C. 67-5215(a), 3 Idaho L.Rev. 109 (1966).

The legislature by passage of the Administrative Procedure Act, intended to make available a uniform method of reviewing administrative action, but did not intend to abolish those methods of review already in existence.

“The real difficulty arises in cases where, following the format of the Revised Model State Act, the statute provides that it does not limit utilization of other means of review provided by law. Clearly, it was the intention of the Commissioners on Uniform State Laws that the result should be that the appellant would he able to choose between the several available methods — he could proceed under the administrative procedure act or under the particular statute relating to a named agency.” Cooper, State Administrative Law 609 (1965).

Both provisions, I.C. § 67-5215 and I.C. § 49-334 are equally available as appeal procedures by which an aggrieved party can seek judicial review of administrative action. In this case the respondent chose to proceed under the Administrative Procedure Act. That was her prerogative and the district court’s holding was error. However, whether the parties were before the district court de novo under I.C. § 49-334 or under the Administrative Procedure Act, I.C. § 67-5215, is immaterial since the district court had power under I.C. § 67-5215(g) (4) to review a question of law, and under I.C. § 67-5215 (g) (5) the court had power to reverse if the findings were clearly erroneous. Since the matter was properly before the district court on a question of law and this court affirmed the district court on the question of law the issue of which procedure to follow in the district court is moot.

Judgment affirmed.

McQUADE and SPEAR, JJ., concur. SHEPARD, J., sat at the hearing but did not participate in the opinion.

1 . “49-334. Right of appeal to court.— Any person denied a license or whose license has been canceled, suspended, or revoked by the department except where such cancelation or revocation is mandatory under the provisions of this act shall have the right to file a petition within 30 days thereafter for a hearing in the matter in the district court in the county wherein such person shall reside and suck court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 30 days' written notice to the commissioner, and thereupon to take testimony and examine into the facts of the ease and to determine whether the petitioner is entitled to a license or is subject to suspension, cancelation, or revocation of license under the provisions of this act.”