80 Wn.2d 629, JOHN R. VOETBERG, Appellant, v. THE STATE DEPARTMENT OF MOTOR VEHICLES, Respondent

[No. 42203. En Banc.      Supreme Court      May 11, 1972.]

JOHN R. VOETBERG, Appellant, v. THE STATE
                DEPARTMENT OF MOTOR VEHICLES, Respondent.

Appeal from a judgment of the Superior Court for Snohomish County, No. 100860, Thomas G. McCrea, J., entered March 12, 1971. Affirmed.

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

Mathew D. Griffin and Griffin & Bortner, for appellant.

Slade Gorton, Attorney General, and John H. Keith, Assistant, for respondent.

PER CURIAM. -

The appellant was arrested while driving a motor vehicle and the arresting officer, believing him to be under the influences of intoxicating liquor, requested that he submit to a chemical breath test for the presence of alcohol in his blood and advised him of the consequences of his refusal. The appellant equivocated at first but eventually refused to take the test. His license was suspended and he appealed to the superior court, which after a trial de novo, found that he was probably too intoxicated to understand the consequences of his refusal to take the test. The court held, however, that the lack of ability to understand the advice and warnings given pursuant to the implied

 630    HARRIS v. KUHN          [May 1972 
           80 Wn.2d 630, 497 P.2d 164

consent statute (RCW 46.20.308), due to voluntary intoxication, does not excuse a refusal of the chemical breath test. The suspension of the appellant's license was upheld.

The arguments advanced by the appellant in this case are substantially the same as those which were presented to the court in Department of Motor Vehicles v. McElwain, 80 Wn.2d 624, 496 P.2d 963 (1972). The disposition of this case is controlled by that opinion.

The judgment is affirmed.