Faulkner v. State ex rel. Dept. of Public Safety,

Faulkner v. State ex rel. Dept. of Public Safety,
1996 OK CIV APP 66
925 P.2d 1230
67 OBJ 3305
Case Number: 87248
Decided: 05/28/1996

Donald L. FAULKNER, Appellant,
v.
STATE of Oklahoma, ex ref., DEPARTMENT OF PUBLIC SAFETY, Appellee.

¶0 The District Court, Oklahoma County, Russell Hall, J., sustained revocation of motorist's driver's license for refusing to take alcohol breath test and motorist appealed. The Court of Appeals, Hansen, P.J., held that motorist's subsequent agreement to take rest after initially refusing rest was ineffective for purposes of impiled consent law. Affirmed.

Appeal From the District Court of Oklahoma County, Oklahoma; Honorable Russell Hall, Trial Judge.

AFFIRMED.

Stephen G. Fabian, Jr., Edmond,for Appellant.
Earl L. Reeves, Jr., Oklahoma City, for Appellee.

OPINION

HANSEN, Presiding Judge

¶1 Donald L. Faulkner appeals from an order of the district court sustaining revocation of his driver's license pursuant to 47 O.S.1991 §753, for his refusal to take a blood alcohol test. Faulkner was stopped by a police officer who suspected Faulkner was driving under the influence of alcohol.

¶2 After stopping Faulkner for allegedly running a stop sign, the officer called in a backup. That officer felt she had sufficient probable cause to arrest Faulker for DUI. After placing Faulkner under arrest the officer read him the implied consent warning, stating the rest would be a breath/blood rest and would be administered at no cost. The arresting officer testified that when asked if he would consent to the rest, Faulkner replied "Please, just a minute. Give me a chance. Listen to me." The officer told him if he did not answer, it would be considered a refusal. Although Faulkner kept talking about his problems he never consented to the rest.

¶3 The officer took him to the Oklahoma City Police Department and placed him in a holdover cell. He originally consented to taking a breathalyser test. However, later, Faulkner told the officer he would take a blood test but not a breathalyser rest. The officer told him he had to take a breathalyser rest before the blood rest. He refused. Nearly two hours after his arrest, after he had been returned to his cell, he reportedly said he would take the breath test. He was not given the rest, and the Department of Public Safety, after an administrative hearing, revoked his license. He appealed to the district courts which also found his license should be revoked based on his failure to agree to a breathalyser rest. He appeals this ruling on the sole basis he did not refuse the test. We affirm.

¶4 On appeal from orders of implied consent revocations, appellate courts may not reverse or disturb the findings below unless the lower court's determinations are found to be erroneous as a matter of law or lacking sufficient evidentiary foundation. Abdoo v. State ex ret Dept. of Public Safety, 788 P.2d 1389 (Okla.App.1990). Faulkner appeals based on claims of erroneous findings of fact by the trial court. The trial court is the trier of facts, and it is within its province to determine the credibility of the witnesses and to decide the effect and weight to be given their testimony. These are not questions of law for the appellate court. Snodgress v. State of Oklahoma ex ref., Department of Public Safety, 551 P.2d 259 (Okla.1976).

¶5 The standard for determining the effectiveness of a subsequent consent after an initial refusal to take a blood test is set out in Baldwin v. State ex ret, Department of Public Safety, 849 P.2d 400 (Okla.1993). The first element requires that the assent must be made within a very short and reasonable time after the prior refusal. Even though Faulkner may have recanted his refusal, the evidence presented at court supports a finding his eventual agreement to take the test came too fare for such a rest to be valid. In addition, Baldwin requires that the subsequent consent must be made when the individual requesting the rest has been in the custody of the arresting of officer and under observation for the whole time since the arrest. That element is not met by the facts as stated at trial. Faulkner was alone in his cell, not under observation.

¶6 Accordingly, we find the evidence presented and the reasonable inferences to be drawn therefrom support the trial court's judgment. Smith v. State (State of Oklahoma ex rel Department. of Public Safety, 680 P.2d 365 (Okla. 1984).

¶7 AFFIRMED.

¶8 ADAMS, V.C.J., and BUETTNER, J., concur.