Nyflot v. Commissioner of Public Safety

369 N.W.2d 512, 1985 Minn. LEXIS 1084

• Court: Supreme Court of Minnesota
• Decided: June 11, 1985
• Docket: C5-84-2030
• Status: Published

Opinions

AMDAHL, Chief Justice.

In Nyflot v. Commissioner of Public Safety, 365 N.W.2d 266 (Minn.App.1985), the Court of Appeals reversed an order of the trial court sustaining the revocation of Janice Nyflot’s driver’s license for refusal to submit to chemical testing under Minn. Stat. § 169.123 (1984), the implied consent law. The Court of Appeals ruled that drivers arrested for DWI have a limited right under Minn.Stat. § 481.10 (1984) to consult with an attorney before deciding whether to submit to chemical testing, notwithstanding a 1984 amendment to section 169.-123 signifying a legislative intent to take away that .right. We granted the commissioner’s petition for review. Holding that a driver arrested for DWI has no right, statutory or constitutional, to consult with counsel before deciding whether to submit to chemical testing, we reverse the Court of Appeals and reinstate the decision of the trial court.¹

On September 23, 1984, Nyflot was lawfully arrested by sheriff’s deputies for DWI and was taken to the law enforcement center in Albert Lea. There the deputies read her the implied consent advisory set forth in section 169.123. Specifically, she was told (a) that Minnesota law required her to take a test to determine if she was under the influence of alcohol or a controlled substance; (b) that if she refused, her right to drive would be revoked for a minimum of 1 year; (c) that if she took a test and the results indicated that she was under the influence of alcohol or a controlled substance, she would be subject to criminal penalties and her right to drive could be revoked for a minimum of 90 days; (d) that “after submitting to testing,” she had the right to consult with an attorney and to have additional tests made by a person of her own choosing; and (e) that if she refused to take a test, the refusal would be offered in evidence against her at trial. Nyflot insisted that she be permitted to call her attorney before deciding, but the deputies explained to her that the law had changed and that she did not have that right. Nyflot at first agreed to take the test, and one of the deputies began to set up the Breathalyzer machine. Then, after the machine was ready, Nyflot said she would not take the test. One of the deputies told her that that was a refusal, and the other deputy began taking down the machine. Nyflot then was permitted to call her attorney. After talking with her attorney, she said that she would take a test. One of the deputies told her that she had already refused and that she could not change her mind.

In the trial court, Nyflot’s attorney argued that (1) under Minn.Stat. § 481.10 (1984), as interpreted in Prideaux v. State, Dept, of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976), Nyflot had a limited right to call her attorney before deciding whether to take a test and that the 1984 amendment changing the implied consent advisory did not change that right, and (2) in any event, she had a limited right to counsel in this situation under the sixth amendment of the Federal Constitution. The trial court rejected these arguments and sustained the revocation.

On appeal to the Court of Appeals, Ny-flot argued (1) that the 1984 amendment did not effectively create an exception to section 481.10 in implied consent cases or change Prideaux, and (2) if it did, the legislation violated the sixth amendment, the due process clause, and the equal protection clause of the Federal Constitution.

The Court of Appeals ruled that although the legislature apparently intended to take away a driver’s limited right to counsel before testing, amending the implied consent advisory was not an effective way to do it. The court also made clear in its opinion that any attempt by the legislature to take away the limited statutory right to counsel recognized in Prideaux probably would violate a driver’s sixth amendment right to counsel.

We first addressed the issue-of right to counsel in implied consent cases in State v. Palmer, 291 Minn. 302, 191 N.W.2d 188 (1971), and held that a driver has no constitutional right to consult with counsel before deciding whether to submit to chemical testing. Then, in Prideaux, supra, we construed Minn.Stat. § 481.10 as giving a driver arrested for DWI a limited right to consult with counsel before deciding whether to submit to chemical testing. Section 481.10 provides:

All officers or persons having in their custody a person restrained of his liberty upon any charge or cause alleged, except in cases where imminent danger of escape exists, shall admit any resident attorney retained by or in behalf of the person restrained, or whom he may desire to consult, to a private interview at the place of custody. Such custodians, upon request of the person restrained, as soon as practicable, and before other proceedings shall be had, shall notify any attorney residing in the county of the request for a consultation with him. Every officer or person who shall violate any provision of this section shall be guilty of a misdemeanor and, in addition to the punishment prescribed therefor shall forfeit $100 to the person aggrieved, to be recovered in a civil action.

We stated, “The importance of a driver’s license and the binding decisions which must be made by the driver asked to submit to chemical testing make the chemical-testing process a ‘proceeding’ within the meaning of § 481.10 before which consultation with counsel is to be accorded.” Pri-deaux, 310 Minn, at 419, 247 N.W.2d at 393. We added, however, that if the commissioner was correct in his contention that the implied consent statute forbade even limited consultation with counsel before chemical testing, then that statute, which was later and more specific in its scope, would control. Id. Finding no evidence of such a legislative intent, we concluded that a driver arrested for DWI had a limited right under section 481.10 to consult with counsel before deciding whether to submit to chemical testing. Id. at 419-21, 247 N.W.2d at 393-94.

In 1978, the legislature signified its agreement with Prideaux by expanding the implied consent advisory. Before the 1978 amendment, the driver was informed simply that his right to drive would be revoked if he refused to take a test and that he had a right to have additional tests made by a person of his own choosing. Minn.Stat. § 169.123 (1976). The amendment expanded the advisory to inform the driver as follows:

(1) that if testing is refused, the person’s right to drive will be revoked for a period of six months; and

(2) that if a test is taken and the results indicate that the person is under the influence of alcohol or a controlled substance, the person will be subject to criminal penalties and the person’s right to drive may be revoked for a period of 90 days; and

(3) that the person has a right to consult with an attorney but that this right is limited to the extent that it cannot unreasonably delay administration of the test or the person will be deemed to have refused the test; and

(4) that after submitting to testing, the person has the right to have additional tests made by a person of his own choosing.

Act of April 5, 1978, ch. 727, § 3, 1978 Minn.Laws 788, 792-93.

In 1983, the legislature added a warning that if the driver refused to take a test, the refusal would be offered in evidence against him at trial. Act of June 9, 1983, ch. 306, § 6, 1983 Minn.Laws 1742, 1744-45.

The 1984 changes in the advisory involved inserting new advice to the effect that Minnesota law “requires” the person to take a test, increasing the 6-month revocation period to 1 year, removing the advice to the effect that the driver has a limited right to consult with an attorney prior to testing, and changing the advice relating to additional testing so that it now informs the driver that he has a right to consult with an attorney “after submitting to testing” and to have additional tests made by a person of his own choosing. Act of May 2, 1984, ch. 622, § 10, 1984 Minn.Laws 1541, 1546-47.

The Court of Appeals, agreeing with Nyflot, concluded that the 1984 amendment of the implied consent law did not effectively take away the limited right to counsel that we recognized in Prideaux. This conclusion overlooks our statement in Prideaux that if the implied consent statute forbade even limited consultation with counsel before chemical testing, then that statute, being later and more specific in its scope, would control. Because the legislature originally signified its adherence to the Prideaux ruling by amending the advisory to include a limited right to counsel prior to testing, it makes sense that the legislature intended to abandon the Pri-deaux right to counsel by later amending the advisory to remove this right. Concluding that the 1984 amendment controls, we hold that a driver arrested for DWI no longer has even a limited statutory right to consult with counsel before deciding whether to submit to chemical testing.

However, Nyflot argues, and the Court of Appeals apparently agreed, that she has a constitutional right to consult with counsel in this context. Our decision in Prideaux did indicate, in dictum, that the decision to submit to testing was arguably a “critical stage” of the prosecution. 310 Minn, at 411-14, 247 N.W.2d at 389-91. At that time there was still some dispute as to when a prosecution was commenced for purposes of attachment of the sixth ámendment right to counsel. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), which concluded that the sixth amendment right to counsel did not attach until judicial proceedings are formally commenced (by indictment, complaint or substitute for complaint), was a plurality opinion. Since then it has become clear that a majority of the Justices of the United States Supreme Court support the view espoused by the plurality in Kirby. United States v. Gouveia, — U.S. -, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 541 L.Ed.2d 424 (1977); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), gives a defendant a right to counsel in the case of custodial interrogation even though custodial interrogation occurs before the defendant is formally charged by complaint or indictment. In a footnote in his opinion in Gouveia, Justice Rehnquist states that the right to counsel in connection with custodial interrogation required in Miranda and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), was the only arguable deviation from the usual rule that the sixth amendment right to counsel is not triggered until the commencement of adversary judicial proceedings. 104 S.Ct. at 2298 n. 5 (“we have made clear that we required counsel in Miranda and Escobedo in order to protect the fifth amendment privilege against self-incrimination rather than to vindicate the sixth amendment right to counsel.”). Thus, it is clear that the Court is unlikely to find other situations requiring a triggering of the right to counsel before the formal initiation of a criminal prosecution.

It is also clear that the right to counsel recognized in Miranda does not apply to the limited questioning of a driver to determine if he will consent to a chemical test. The Miranda right to counsel applies only to “interrogation,” which the Court has defined as express questioning or other words or actions by police reasonably likely to evoke an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). In South Dakota v. Neville, 459 U.S. 553, 564 n. 15, 103 S.Ct. 916, 923 n. 15, 74 L.Ed.2d 748 (1983), the Court made it clear that “in the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda.” Of course, if the police arrest (as opposed to temporarily detain) a driver for DWI and interrogate him, then they must give him a Miranda warning, if the statements are to be admitted in evidence later. Berkemer v. McCarty, — U.S.-, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). As a practical matter, it makes sense for police not to interrogate an arrested driver until after completing the implied consent part of the investigation because of the danger that the Miranda warning will confuse the driver. See State, Dept, of Highways v. Beckey, 291 Minn. 483, 487,192 N.W.2d 441, 445 (1971).

The due process and equal protection arguments advanced by Nyflot are also without merit. Under the due process clause, a defendant has a right to a fairly conducted lineup that is not so unnecessarily suggestive as to create a very substantial likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). But the right to counsel that a suspect has at a lineup comes from the sixth amendment and that right attaches only after judicial proceedings have formally commenced. Moore v. Illinois, 434 U.S. 220, 224-27, 98 S.Ct. 458, 462-64, 54 L.Ed.2d 424 (1977). Similarly, due process does not require giving an arrested driver a right to consult with counsel before deciding whether to take a test that the law says he is required to take, particularly where he is properly advised that he is required to take it.

The equal protection argument also has no merit. All arrested drivers — those who can afford counsel and those who cannot — are treated equally. Contrary to what defendant argues, drivers suspected of DWI are not treated differently than suspects of other crimes. The same rule as to the triggering of the sixth amendment right to counsel applies to all criminal defendants. Further, there is a rational basis for denying drivers permission to consult with counsel before deciding to submit to chemical testing.

As the United States Supreme Court reemphasized in South Dakota v. Neville, 459 U.S. 553, 559, 103 S.Ct. 916, 920, 74 L.Ed.2d 748. (1983), its decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), “clearly allows a State to force a person suspected of driving while intoxicated to submit to a blood alcohol test.”² The legislature, therefore, could repeal the implied consent law and direct police officers to administer chemical tests against the suspect’s will. Id. The obvious reason the legislature has chosen to retain the implied consent law is to avoid the violent confrontations which could occur when people are forced to submit to testing. Id. 459 U.S. at 559-60, 103 S.Ct. at 920-21. The legislature’s decision to let people refuse in the ordinary case and not be forced to take a test does not mean that a defendant has a right to refuse. Even though arrested drivers do not have a right to refuse, they do have an important decision to make, the kind of decision for which the advice of counsel arguably could be useful.³ But, there being no right under the constitution to consult with counsel in this context, the decision whether or not to provide that right is one for the legislature to make. Satisfied that the legislature has clearly and effectively expressed its intent that arrested drivers not be given that right, we reverse the Court of Appeals and reinstate the decision of the trial court sustaining the revocation of Nyflot’s license for unreasonably refusing to submit to testing.⁴

Reversed.

SCOTT and KELLEY, JJ., concur specialty- YETKA and WAHL, JJ., dissent.

1 . The motion to strike an affidavit from the supplementary brief of the Commissioner of Public Safety is denied.

2 . Schmerber was reaffirmed even more recently in Winston v. Lee, — U.S.-, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), a case upholding a federal district court’s injunction against surgical removal of a bullet from the chest of an armed robber.

3 . An attorney may advise the driver of the consequences of refusal and of the consequences of taking the test and failing it. He also may advise the driver to take the test. He may not, subsequent to this decision, ethically advise the driver not to take the test, since the law, as now interpreted, requires the driver to take the test. In short, what the attorney may tell the driver is what the implied consent advisory tells the driver. Of course, some drivers are more likely to believe the advisory if it comes from an attorney.

4 .Nyflot’s expression of willingness to take the test after she talked with her attorney was an ineffective attempt to avoid the consequences of her refusal. State, Dept, of Public Safety v. Early, 310 Minn. 428, 247 N.W.2d 402 (1976); State v. Palmer, 291 Minn. 302, 308-09, 191 N.W.2d 188, 191-92 (1971) ("the testing officers should not be required 'to await the driver’s convenience of a different time or place’ to submit to the statutory requirement.”)