Muir v. Cox

611 P.2d 384, 1980 Utah LEXIS 936

• Court: Utah Supreme Court
• Decided: April 24, 1980
• Docket: 16511
• Status: Published

Opinions

HALL, Justice:

Plaintiff appeals from a de novo review of a decision of the Utah State Driver’s License Division (hereinafter “Division”) wherein the district court denied plaintiff’s petition to reinstate his driver’s license. In so ruling, the court held that plaintiff had refused to submit to a breathalyzer examination pursuant to Utah’s Implied Consent Law.¹

On November 22, 1978, at approximately 1:00 a.m. plaintiff was involved in a traffic accident in Salt Lake City, Utah. One of the investigating officers, patrolman Hunt, suspected that plaintiff had been drinking and requested that he submit to a field sobriety test. Plaintiff refused to submit to the test, claiming that an attorney had once advised him never to submit to a police search without first consulting with an attorney. Plaintiff was thereupon arrested on suspicion of driving under the influence of alcohol,² and given the “Miranda warning.” ³

Subsequent to the arrest, the officer requested that plaintiff take a breathalyzer test, and indicated that if he refused to take the test he stood in danger of losing his driver’s license for a period of one year.⁴ Various responses given by plaintiff were that he would not submit to the test “unless you can give it to me right here and now,”⁵ and that he wanted to talk to a friend on the police force. When plaintiff requested that his attorney be present, the officer advised plaintiff that, “the Miranda warning applies only to the criminal charge but not to the Implied Consent Law which is civil in nature and a separate matter.”

Plaintiff nevertheless persisted in his refusal to take the test. The Division found that plaintiff had knowingly refused to submit to the breathalyzer test and ordered his license suspended. Plaintiff thereupon petitioned the district court to reinstate his license. At trial, three witnesses were called: patrolman Hunt, plaintiff, and one John O’Connell.⁶ Following the trial, the district court denied plaintiff’s petition. The court found that the officer had grounds to make the arrest, that the request for submission to a chemical test was properly made, and that it was knowingly refused.

Plaintiff’s sole point on appeal is that his refusal to submit to the test was invalid due to the inherent inconsistencies relating to attorney presence when the implied consent warning and the Miranda warning are contemporaneously given.

The trial judge entered his order denying the petition on May 29, 1979. Subsequently, on July 26, 1979, we decided Holman v. Cox,7 a case very similar to the instant appeal. In Holman, the plaintiff contended that, having been read his Miranda rights and at nearly the same time having been asked to take a chemical test without advice of counsel, he was confused as to his legal rights which amounted to reasonable grounds for refusing the test. We held that the Miranda warning and the Implied Consent Law are not inconsistent, but cautioned that each proposition must be stated fully, clearly and understandably so that the driver understands that his affirmative duty to take a chemical test is not obviated by the Miranda warning. We also held that the question of whether the motorist was confused and whether he manifested his confusion to the arresting officer is for the trier of fact to determine.

In Holman, because no such findings were made by the trial court, the case was remanded for a determination of those issues. Likewise, in the instant case there have been no findings made as to plaintiff’s confusion of his right to have an attorney present. The judgment of revocation is vacated and the case is remanded for additional findings consistent with our decision in Holman.

MAUGHAN and WILKINS, JJ., concur.

1 . U.C.A., 1953, 41-6-44.10.

2 . U.C.A., 1953, 41-6-44.

3 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), held that if statements made by an arrested person are to be admitted in a criminal proceeding against him, he must be advised of certain rights. Before being interrogated the arrested person must be informed that he has the right to remain silent; that any statements made may be used against him; that he has the right to have an attorney present during interrogation; and that an attorney will be appointed for him if he desires and is unable to pay an attorney’s fee.

4 .Supra, footnote 1.

5 . The officer explained that the means to give the breath tests were not available at the accident site.

6 . O’Connell is an attorney who testified that he had discussed with plaintiff what a person should do when asked to consent to a police search.

7 .Utah, 598 P.2d 1331 (1979).