Milner v. Department of Public Safety

Banke, Judge. The Department of Public Safety suspended the appellant’s driver’s license for six months for refusing to submit to a breatholyzer test. This was done pursuant to the provisions of the Implied Consent Law, Code Ann. § 68B-306 (Ga. L. 1975, pp. 1008, 1028). Following the affirmance of the department’s action by the Bibb County Superior Court, the appellant filed this appeal. The appellant admits that he was driving under the influence of alcohol, that he was involved in an accident, that he was informed of his rights with respect to the test, and that he refused to take the test. However, he contends that he was so intoxicated and so shaken by the accident that he misunderstood his rights and believed that he was entitled to choose to take a blood test instead of the breath test. His testimony to this effect is in conflict with the testimony of the arresting officers, who stated that he repeatedly refused the breath test despite their unequivocal warning to him that his license would be suspended unless he submitted. It is also in conflict with his own admission during the course of the hearing that he heard and understood that warning. This appeal is based on the department’s failure in its written decision to provide an express ruling on whether the appellant’s refusal to take the test was knowing and intelligent. Held: 1. This case is almost identical to Longino v. Cofer, 148 Ga. App. 341 (251 SE2d 113) (1978), and is controlled thereby. Here, as there, the department’s decision to suspend the appellant’s license is supported by evidence, is authorized by law, and must therefore be affirmed. See also Cofer v. Schultz, 146 Ga. App. 771 (247 SE2d 586) (1978). 2. The appellant’s contention that the superior court improperly treated the case as a de novo proceeding rather [314] than as an appeal from an administrative ruling is not supported by the record and is without merit. Submitted January 16, 1980 Decided February 6, 1980. James B. McLaughlin, Jr., for appellant. Arthur K. Bolton, Attorney General, William B. Hill, Jr., Assistant Attorney General, Robert B. Stubbs, II, Executive Assistant Attorney General, Don A. Langham, First Assistant Attorney General, John C. Walden, Senior Assistant Attorney General, for appellee. Judgment affirmed. McMurray, P. J., and Smith, J., concur.