81 Wn.2d 662, ARNIE G. RUPKE, Appellant, v. THE DEPARTMENT OF MOTOR VEHICLES, Respondent

[No. 42250. En Banc.      Supreme Court      December 14, 1972.]

                          VEHICLES, Respondent.

Appeal from a judgment of the Superior Court for Whatcom County, No. 45079, Bert C. Kale, J., entered July 16, 1971. Affirmed.

Action to review a determination of the Department of Motor Vehicles. Plaintiff appeals from a judgment in favor of the defendant.

Richard J. Waters, for appellant.

Slade Gorton, Attorney General, and David R. Minikel, Assistant, for respondent.


Arnie G. Rupke appeals from a decision of the Superior Court for Whatcom County which upheld a finding by the Department of Motor Vehicles that he refused to take a chemical breath test to determine sobriety as required by RCW 46.20.308.

Mr. Rupke contends an arresting officer is required by the United States Constitution to affirmatively explain that the rights secured by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966), do not include the right to refuse to take the breath test. Mr. Rupke contends he refused to take the breath test and became liable for the resulting penalties pursuant to RCW 46.20.308 under the mistaken impression that he was asserting his Miranda rights.

The question of whether Mr. Rupke was confused is a factual question. There was no finding of fact that he was confused and no error is assigned to the court's failure to so find. An examination of the record does not compel a holding that as a matter of law he was confused.

There is no factual basis in the record to enable us to reach the legal question of whether, if a defendant is confused, there is a constitutional requirement to distinguish

 Dec. 1972]          STATE v. PORTER               663 
81 Wn.2d 663, 504 P.2d 301

between a defendant's Miranda rights and the results of his refusal to take a breathalyzer test.

Judgment affirmed.