Gukeisen v. Department of Public Safety

2020 UT App 32

THE UTAH COURT OF APPEALS

DAVID D. GUKEISEN,
Appellant,
v.
DEPARTMENT OF PUBLIC SAFETY,
DRIVER LICENSE DIVISION,
Appellee.

Opinion
No. 20190040-CA
Filed March 5, 2020

Third District Court, Salt Lake Department
The Honorable Patrick W. Corum
No. 180903729

Stephen D. Spencer, Attorney for Appellant
Sean D. Reyes, Brent A. Burnett, and Rebecca D.
Waldron, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER
and DIANA HAGEN concurred.

HARRIS, Judge:

¶1 David D. Gukeisen was pulled over one night on
suspicion of drunk driving. When an officer asked whether
Gukeisen would consent to a breath test, Gukeisen refused to
give a direct answer, instead stating that he wanted his lawyer
present. Later, both the Driver License Division and the district
court determined that Gukeisen’s response constituted, at best, a
conditional consent to submit to a breath test. Based on his
failure to unconditionally submit to a breath test, Gukeisen’s
driver license was revoked for eighteen months. Gukeisen now
appeals the revocation of his license, arguing that the district
Gukeisen v. Dep’t of Public Safety

court erred by determining that he gave only conditional consent
to the breath test. We affirm.

BACKGROUND

¶2 Early one morning, just before 3:00 a.m., a Utah Highway
Patrol (UHP) trooper (Trooper) stopped a Ford F-150 that had
been swerving erratically. The truck was occupied by
Gukeisen—who was driving—and another passenger. When
Trooper approached the truck’s window, he immediately
smelled alcohol and noticed that Gukeisen was slurring his
speech. At Trooper’s request, Gukeisen stepped out of the
vehicle, and Trooper noticed that Gukeisen had a “circular sway
while standing,” and that the odor of alcohol was coming from
his mouth. Trooper administered one field sobriety test—for
horizontal gaze nystagmus, a test on which Gukeisen exhibited
six out of six clues that he might be impaired—but Gukeisen
refused to perform any other field sobriety tests at that time,
stating that he wanted his lawyer to be present before any other
tests were performed.

¶3 At that point, Trooper informed Gukeisen that he was
under arrest for driving under the influence, and placed
Gukeisen in the back of his patrol car. Once in the patrol car,
Trooper asked Gukeisen to submit to a breath test, which would
be administered in a few minutes at the nearby UHP substation
where the breathalyzer machine was located. Gukeisen
responded by stating as follows: “I would like to have my
lawyer present, to make sure these tests are done in accordance
with the law.” Trooper understood Gukeisen’s response to be a
refusal, and therefore read to Gukeisen the “refusal admonition”
given in such situations:

Your right to remain silent and your right to
counsel do not apply to the implied consent law
which is civil in nature and separate from the
criminal charges. Your right to remain silent does

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not give you the right to refuse to take the test. You
do not have the right to have counsel during the
test procedure. Unless you submit to the test I’m
requesting, I will consider that you have refused to
take the test. I warn you that if you refuse to take
the test your driving privilege can be revoked with
no provision for limited driving.

If you refuse to test or fail to follow my
instructions, I must warn you that your driving
privilege may be revoked for 18 months if age 21 or
older, or for two years, or until age 21 if you are
under the age of 21; or 36 months, or until age 21 if
it is a second or subsequent license withdrawal for
an alcohol or drug related driving offense, with no
provision for limited driving. In addition, you will
be prohibited from driving with any measurable or
detectable amount of alcohol in your body for a
period of five or ten years, depending on your
prior driving history, and you will be prohibited
from driving a vehicle without an ignition interlock
device installed for a period of three years. I will
make the test results available to you, if you take
the test.

¶4 In response, Gukeisen again equivocated, stating that he
was “not refusing anything,” but just requesting that his lawyer
“be present, to make sure these tests are done within the
provisions of the law.” Given Gukeisen’s repeated requests that
his lawyer be present for any tests, Trooper understood
Gukeisen’s responses to be a refusal to submit to the breath test
or, at best, a conditional consent to test only if his lawyer were
on scene.

¶5 Trooper then applied for a search warrant that would
authorize him to take Gukeisen’s blood without his consent, and
proceeded to transport Gukeisen to the UHP substation. Upon

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their arrival, Gukeisen was not placed in the room with the
breathalyzer machine, presented with a mouthpiece to blow
into, or asked to take a breath test again, because by this time,
Trooper had received a warrant to take Gukeisen’s blood.
Trooper presented the warrant to Gukeisen, and informed him
that they were going to draw his blood. Gukeisen was fully
compliant with the blood draw.

¶6 In a subsequent administrative proceeding, the Driver
License Division revoked Gukeisen’s driving privilege for
eighteen months, concluding that he had refused to submit to a
breath test. Gukeisen petitioned the district court for review of
the administrative determination to revoke his driver license.
The district court held an evidentiary hearing on the matter, at
which Trooper appeared and testified under oath. At the
conclusion of the hearing, the court found that, while Gukeisen
“never expressly refused to take the chemical test,” his
“agreement to take the test was conditional upon having his
attorney present,” and therefore his “behavior was a volitional
failure to agree to take the requested chemical test, and as such
his response constituted a refusal.” The court then entered an
order denying Gukeisen’s petition, and affirming the eighteen-
month revocation of his driver license.

ISSUE AND STANDARD OF REVIEW

¶7 Gukeisen appeals from the district court’s order, and
asserts that the court erred by finding that Gukeisen refused to
submit to a breath test. In this context, we review the district
court’s factual findings for clear error, but we review its ultimate
legal conclusions for correctness. See State v. Mitchell, 2019 UT
App 190, ¶ 10, 455 P.3d 103. “The determination that plaintiff’s
failure to respond to the officer or to take the test amounts to a
refusal is a factual finding which we will not disturb when
supported by substantial evidence.” Lee v. Schwendiman, 722 P.2d
766, 767 (Utah 1986) (per curiam).

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Gukeisen v. Dep’t of Public Safety

ANALYSIS

¶8 As a matter of Utah statutory law, every person who
chooses to drive a vehicle on Utah’s roadways is deemed to have
given implied consent, for driver license purposes, 1 to a chemical
test of their “breath, blood, urine, or oral fluids” for the purpose
of determining their impairment level. See Utah Code Ann. § 41-
6a-520(1)(a) (LexisNexis Supp. 2019); 2 see also Beck v. Cox, 597
P.2d 1335, 1337–38 (Utah 1979) (observing that Utah statutory
law “provides that a driver is deemed to have given his consent”
to a chemical “test as a condition to using the highways”
(quotation simplified)). The implied consent statute requires that
an officer who requests a chemical test “shall warn a person that
refusal to submit to the test . . . may result in revocation of the
person’s license to operate a motor vehicle.” Utah Code Ann.
§ 41-6a-520(2)(a). The statute also makes plain that, in this
context, “the person to be tested does not have the right to
consult an attorney or have an attorney . . . present as a condition
for the taking of any test.” Id. § 41-6a-520(5); see also Holman v.

1. It bears noting that, in this case, we are concerned only with
the status of Gukeisen’s driver license, and not with the status of
his liberty. If this were a case in which the State had charged
Gukeisen with violations of criminal law, and was thereby
attempting to deprive Gukeisen of his liberty, we would need to
concern ourselves with additional constitutional questions,
including search and seizure issues. But there is no
constitutional right to a driver license, see, e.g., Holman v. Cox, 598
P.2d 1331, 1333 (Utah 1979) (stating that “license revocation
proceedings are civil in nature” and that “constitutional rights
afforded defendants in a criminal proceeding do not extend to
those proceedings”), and Gukeisen mounts no constitutional
challenge to the implied consent statute in this case.

2. Because the relevant sections of the statute have not changed
since the date of the incident in question, we cite the current
version of the Utah Code for convenience.

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Cox, 598 P.2d 1331, 1333 (Utah 1979) (“[T]here is no right to
consult an attorney before deciding whether to take a test.”).

¶9 Our supreme court has made clear that a motorist can
“refuse” a chemical test in any number of ways, and that a
motorist may be considered to have refused the test even
without actually saying “no” or “I refuse.” See Beck, 597 P.2d at
1337–38. In Beck, the court rejected the argument that a refusal
must be “express” or “unequivocal,” noting that, if the opposite
were true, “any person driving under the influence of alcohol
could avoid having his license revoked by temporizing,
equivocating, or simply remaining silent.” Id. at 1337. Indeed,
the court stated as follows:

The implied consent statute should be construed in
a fashion to make its application practicable and to
enable an officer to deal realistically with arrested
drivers who may be uncooperative, and even
hostile. An officer would be confronted with an
extremely difficult, if not impossible, problem if the
statute were construed to require an express verbal
refusal and an arrested driver simply equivocated
or remained silent when requested to take a test.
How many times should an officer ask a driver,
who refuses to give an unequivocal answer, to take
the test? Should he be required to persist and
continue to repeat the request until such time as
the driver believes that he has achieved a degree of
sobriety sufficient to pass the test and is safe in
giving a straight answer? The consequence of such
a construction is to place a premium on
uncooperativeness and obstruction that would
likely inflame an already tense situation. Certainly
the Legislature did not intend that law
enforcement officers be placed in such an
impossible situation or that the purpose of the law
should be so easily evaded.

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Id.; see also Lee v. Schwendiman, 722 P.2d 766, 767 (Utah 1986) (per
curiam) (stating that “a refusal to submit to testing need not be
expressed, but may be implied from the driver’s conduct, words,
and behavior”); Conrad v. Schwendiman, 680 P.2d 736, 738 (Utah
1984) (discerning in the implied consent statute “legislative
intent that drivers should not be allowed to equivocate, but must
agree to submit to the test immediately following a warning of
the consequences of the refusal to take the test,” and if they do
not, “refusal is conclusively presumed”). Indeed,

[t]here is no mysterious meaning to the word
“refusal.” In the context of the implied consent law,
it simply means that an arrestee, after having been
requested to take the breathalyzer test, declines to
do so of his own volition. Whether the declination
is accomplished by verbally saying, ‘I refuse,’ or by
remaining silent and just not breathing or blowing
into the machine, or by vocalizing some sort of
qualified or conditional consent or refusal does not
make any difference.

Beck, 597 P.2d at 1338 (quotation simplified). This court has even
specifically held that “[a] consent to be tested cannot be
conditioned upon the presence of counsel.” Cowan v.
Schwendiman, 769 P.2d 280, 282 (Utah Ct. App. 1989) (per
curiam).

¶10 After holding an evidentiary hearing, the district court
made a factual finding that Gukeisen’s conduct, when viewed in
its entirety, constituted a refusal to take the breath test. As noted
above, we will uphold this finding unless Gukeisen
demonstrates that the finding was clearly erroneous and
unsupported by substantial evidence. See Lee, 722 P.2d at 767.
Gukeisen has not made that showing here.

¶11 When Trooper asked him to submit to a breath test,
Gukeisen responded by twice asking that his lawyer be present

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Gukeisen v. Dep’t of Public Safety

before any tests were administered. Just a few minutes earlier,
Gukeisen had made a similar statement when asked to submit to
additional field sobriety tests, and on that basis had actually
refused to comply. Under these circumstances, and after hearing
Trooper testify, the district court credited Trooper’s testimony
that he reasonably believed that Gukeisen’s responses
constituted a refusal, or at least that any consent Gukeisen was
giving was conditioned upon having his lawyer present. Based
largely on Trooper’s testimony, the court made a factual finding
that Gukeisen had refused to submit to a chemical test. And after
examining the record on appeal, we have no reason to second-
guess the district court’s determination.

¶12 Gukeisen, however, points out that he told Trooper he
was not “refusing anything,” and emphasizes that, after he and
Trooper arrived at the UHP substation where the breathalyzer
machine was located, Trooper did not ask again for Gukeisen to
take the test, and that Gukeisen was completely compliant with
all of Trooper’s commands (for instance, regarding the blood
draw) at the station. From this evidence, Gukeisen asserts that,
when the totality of his conduct is considered, he did not
actually refuse the test.

¶13 But at most, Gukeisen has demonstrated that conflicting
evidence existed in this case. The district court was well aware of
this evidence when it made its final ruling, even specifically
noting that Gukeisen “never expressly refused to take the
chemical test.” In situations where the evidence conflicts, a
district court must choose which evidence to credit and which
evidence to disregard, and “[w]e defer to the [district] court’s
advantaged position to weigh that conflicting evidence.” Bonnie
& Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 18, 305 P.3d 196; see
also Hale v. Big H Constr., Inc., 2012 UT App 283, ¶ 60, 288 P.3d
1046 (“The existence of conflicting evidence does not give rise to
clear error as long as evidence supports the [district] court’s
decision.” (quotation simplified)); Kimball v. Kimball, 2009 UT
App 233, ¶ 20 n.5, 217 P.3d 733 (“The pill that is hard for many
appellants to swallow is that if there is evidence supporting a

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finding, absent a legal problem—a ‘fatal flaw’—with that
evidence, the finding will stand, even though there is ample
record evidence that would have supported contrary findings.”).

¶14 In this case, substantial evidence supported the district
court’s finding. When asked to submit to a chemical test,
Gukeisen equivocated and asked for his lawyer. Under
applicable statutes and caselaw, such conditional consent is
considered a refusal to test. See Utah Code Ann. § 41-6a-520(5);
see also Cowan, 769 P.2d at 281. Where substantial evidence
supports the district court’s finding, we will not disturb it on
appeal. See Lee, 722 P.2d at 767.

CONCLUSION

¶15 The district court made a supported factual finding that
Gukeisen refused to submit to a chemical test. Accordingly, we
affirm the court’s order revoking Gukeisen’s driver license.

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