Wesley E. Sedlacek, appellee, v. R. James Pearson, Director of the Department of Motor Vehicles of the State of Nebraska, appellant, 204 Neb. 625

Boslaugh, J. The State appeals from a judgment of the District Court vacating an order of the Director of Motor Vehicles revoking the motor vehicle operator’s license and operating privileges of Wesley E. Sedlacek for a period of 6 months. The order was made pursuant to

section 39-669.16, R. R. S. 1943, of the implied consent law. The record shows that at about 11:30 a.m., on October 24, 1977, Sedlacek was stopped for speeding at a point 3 miles south of Madison, Nebraska. The patrolman who stopped Sedlacek administered a preliminary breath test at about 11:45 a.m., which indicated an alcohol blood content of .12 percent. Sedlacek was then arrested for driving while intoxicated and taken to the police station in Norfolk, Nebraska. At the police station the patrolman read an implied consent post-arrest advisory form to Sedlacek.

Sedlacek signed the form but stated that he would not take the breath test requested by the patrolman until he had talked with his lawyer. Sedlacek was allowed to call a lawyer who agreed to come to the station. Sedlacek refused to take the test until the lawyer arrived. The patrolman left the station and, later, filed an affidavit with the Director of Motor Vehicles alleging that Sedlacek had refused to submit to the breath test. The lawyer arrived at the station at about 1 p.m. He called the county attorney from the station and requested that the test be administered to Sedlacek.

The county attorney asked an officer at the station to perform the test. Sedlacek was tested at about 1:48 p.m., and the test indicated that he had a blood alcohol content of .11 percent at that time. A complaint was filed in the county court charging Sedlacek with driving while under the influence of alcoholic liquor, refusal to submit to the breath test, and speeding. Sedlacek pleaded guilty to the first and third counts but was acquitted on the count charging refusal to submit to the breath test.

The State contends that the judgment of the District Court vacating the order of the Director of Motor Vehicles was erroneous because Sedlacek had no constitutional right to consult a lawyer before consenting to the test, and his reply to the patrolman’s request to submit to a breath test constituted a refusal within the meaning of the implied consent law. The statute provides for a suspension or revocation of driving privileges only if the refusal is unreasonable.

The question presented by the appeal is whether, under the facts and circumstances of this case, there was an unreasonable refusal to submit to the test requested by the arresting officer. The State is entitled to have the test administered at a time when it will be effective to disclose the blood alcohol content of the person tested with relation to the time that the vehicle was being operated. Under the evidence in this case it is clear there was no prejudice to the State because of the delay in performing the test.

In a similar case the Colorado Court of Appeals held that delay in consenting to the test, during which the driver conferred by telephone with a lawyer, did not prevent the driver from retracting an earlier refusal unless the delay materially affected the result of the test. The court said: “The implied consent law was enacted to assist law enforcement officers in prosecuting the drinking driver, and the sanction of license revocation was adopted to encourage a driver to consent voluntarily to a blood alcohol test. Calvert v. Motor Vehicle Division, 184 Colo. 214, 519 P. 2d 341 (1974).

The primary purpose of the statute is to obtain scientific evidence of the amount of alcohol in the bloodstream in order to curb drunk driving through prosecution for that offense. See Colorado Legislative Council Research Publ. # 123, Highway Safety in Colorado 37-46 (1966). “While a motorist has no right under the statute to confer with counsel prior to deciding whether he will consent to a test, Calvert v.

Motor Vehicle Division, supra, where, as here, he is permitted to do so, thereafter consents to the test, and the officer is available to see that the test is administered, the primary purpose of the statute is fulfilled unless the delay will materially affect the result of the test. See, e.g., Cavagnaro v. Motor Vehicles Division, 19 Or. App. 725, 528 P. 2d 1090 (1974).” Zahtila v. Motor Vehicle Div., Dept. of Rev. (Colo. App., 1977), 560 P. 2d 847. The evidence in this case shows that the rate of oxidation of alcohol in the body is approximately .01 percent per hour.

Thus the test performed at 1:48 p.m., which showed Sedlacek then had a blood alcohol content of .11 percent, indicated that his blood alcohol content at the time of the arrest was in excess of .13 percent. There would appear to be no reason to invoke the sanction of the implied consent law for refusal to submit to a test where a test was in fact performed and the test established what the test was designed for and intended to show. The State should not be allowed to perform the test and at the same time claim a refusal to submit to the test.

The evidence sustains a finding that the State should not be permitted to rely upon the preliminary refusal of Sedlacek to submit to the test and the sanction provided by the statute should not be imposed in this case. The judgment of the District Court is affirmed. Affirmed.