#### James WHITE, Sr. v. STATE of Louisiana, Through DEPARTMENT OF PUBLIC SAFETY.

No. 12088.

Court of Appeal of Louisiana, First Circuit.

July 10, 1978.

Brian L. Williams, Baton Rouge, of counsel for plaintiff-appellant James White, Sr.

James C. Dixon, Baton Rouge, of counsel for defendant-appellee, State of La., etc.

Before BLANCHE, COVINGTON and CHIASSON, JJ.

BLANCHE, Judge.

Plaintiff-appellant, James White, Sr., is appealing from a trial court judgment which dismissed his petition to set aside the suspension of his motor vehicle operating privileges.

The sole issue is whether or not plaintiff refused to take a test to determine the alcoholic content of his blood after being arrested for driving while intoxicated.

An administrative hearing was held on August 16, 1977, before a Hearing Officer of the Department of Public Safety at plaintiff’s request concerning his alleged refusal to submit to a chemical analysis for the determination of the alcoholic content of his blood. The officer found that all of the provisions set forth under LSA-R.S. 32:661, et seq., were completely satisfied. This statutory provision provides for the revocation of a motor vehicle driver’s license upon refusal to submit to the appropriate test.

The Hearing Officer stated in his findings of fact:

> “C. Testimony of Trooper Gill reflects plaintiff refused to submit to the P.E.I. and at no time did plaintiff attempt to take it. Plaintiff, on the other hand, testified that he did attempt to blow in the machine several times and informed the officer he could not blow harder when he was requested to. Plaintiff argues at no time did he refuse — he just could not blow harder due to a medical condition so described in an Affidavit of Dr. Edward J. Herpich and marked into evidence as W-l.” (Record, p. 9)

*266At the trial in the district court there was conflicting testimony between plaintiff and Trooper Charles R. Gill, who had arrested plaintiff for driving under the influence of alcoholic beverages.

Plaintiff testified as follows:

> “ * * * I sat down, I faced another officer inside the van. He was up behind a little glass desk that was in the van. And he lent me a little tube. He said, T want you to blow into this tube.’ I placed the tube in my mouth and I took a breath, I tried to blow into the tube. I blew in and he said, ‘Try it again.’ I put it back in my mouth, took a breath, I blew again. He asked me to try it again. I put it in my mouth, I took a breath, I blew again. And by that time, Officer Gill said, T think I’ll give him a sobriety test.’ He asked me out of the van. * *” (Record, p. 31)

Trooper Gill, under questioning by the trial court, testified:

> “Q. No, I’m talking about the breath test.

> “A. Yes, sir, he did.

> “Q. He refused to do that?

> “A. Yes, sir, he did.

> “Q. And he kept on refusing until you just finally shut the equipment down and got out of the van; is that right?

> “A. Shut the equipment down, but didn’t get out of the van. Then we started the refusal form and he agreed to take the test.

> “Q. Did he do it?

> “A. No, sir, the machine was set up again, at this time. Then once it was set up again, he refused.

> “Q. He refused again?

> “A. So then it was shut off this time.

> “Q. It’s your testimony that he refused to take the test; is that right?

> “A. Yes, sir, it is.”

> (Record, p. 57)

Plaintiff submitted a proffer of testimony by Trooper Gill in an attempt to prove that Trooper Gill’s attention was diverted while plaintiff was in the van. The testimony involved the possibility that Trooper Gill could have talked with the operator of a towing vehicle which had come to the scene of arrest to tow away plaintiff’s vehicle. The gist of Trooper Gill’s testimony is that he might have engaged in a conversation with the towing vehicle operator at the rear of the van to the extent that he gave him permission to tow the vehicle but that he did not recall such a conversation.

The trier of fact has broad discretion where there is a conflict of testimony. Our examination of the record gives us no reason to find any abuse of discretion in this case.

For these reasons, we affirm the judgment of the trial court, with costs cast to plaintiff-appellant.

AFFIRMED.

CHIASSON, J., dissents and assigns written reasons.

CHIASSON, Judge,

dissenting:

Rules of evidence and not merely a conflict of testimony are involved in this case.

Plaintiff specifically sought a judicial review under the provisions of La.R.S. 49:964 of the administrative hearing held pursuant to La.R.S. 32:661, et seq.

The hearing to review the administrative suspension of a driver’s license pursuant to the provisions of La.R.S. 32:668 is a civil action amenable to the rules of procedure and proof for such actions; one who asserts a fact must carry the burden of proof of that fact which must be established by a reasonable preponderance of the evidence. *Meyer v. State, Dept. of Public Safety Lic. Con., etc.,*312 So.2d 289 (La.1975).

The burden of affirmatively proving refusal to submit to the test is initially on the Department (La.R.S. 32:668) and remains with the Department throughout the court hearing. See: *Jaubert v. Department of Public Safety,*323 So.2d 212 (La.App. 4th Cir. 1975).

The crucial question presented is whether or not plaintiff attempted to blow into the tube. On this point, the arresting officer, Trooper Gill, testified:

> *267“Q. . . . Are you saying that you are certain that he did not put the tube in his mouth, or that you are not certain?

> “A. I’m saying according to the way I remember it, of what I saw, while I was present, at this time, I do not recall having seen him place it in his mouth or blow on it.

> “Q. Is there any time when you might not have been in the van, say, when you were talking with somebody else?

> “A. Yes, sir, there is a possibility.”

> (Underscoring added).

> (Record, p. 55).

> “Q. So, officer, you recall stopping him. You recall the wrecker driver being there and you recall possibly speaking with the wrecker driver sometime during that test. That’s correct?

> “A. I know I did speak to the wrecker driver; exactly the conversation or exactly what time it was, I don’t.”

> (Record, p. 56).

> Plaintiff on this point testified as follows:

> “Q. Did you refuse or were unable to give him an adequate breath sample?

> “A. I was unable, I guess; not refuse.

> “Q. Did they ever ask you to blow harder?

> “A. He asked me to blow harder.

> “Q. Who asked you to blow harder?

> “A. The officer, not Mr. Gill, the other officer. Mr. Gill was talking to Mr. Cook at the time. Mr. Cook asked Mr. Gill whether to move my car or not. Mr. Gill said, ‘No, don’t move it now.’ ”

> (Underscoring added).

> (Record, p. 61).

Trooper Gill’s testimony establishes that plaintiff never attempted to blow into the tube *in his presence.*The evidence further establishes that Trooper Gill was not present during the entire time when attempts were being made to conduct the test. Trooper Diaz who was in charge of conducting the sobriety test was apparently present during the entire time, was not called or subpoenaed as a witness, and did not testify.

> “It has long been a rule in Louisiana that the failure of a party to call a witness under his control and who possesses peculiar knowledge essential to that party’s cause creates a presumption that the witness’s testimony will be adverse to that party. *Vaughan v. Dowling,*243 La. 390, 144 So.2d 371 (Supreme Court 1962); *Walters v. Coen,*228 La. 931, 84 So.2d 464 (Supreme Court 1956); *Pearlstine v. Mattes,*223 La. 1032, 67 So.2d 582 (Supreme Court 1953).” *Marion v. New Orleans Public Service, Inc.*306 So.2d 758 (La.App. 4th Cir. 1975), writ refused, April 18, 1975.

The Department therefore failed to establish by a preponderance of the evidence that the plaintiff refused to take the sobriety test and the judgment of the trial court should be reversed.

I respectfully dissent.