Bickler v. North Dakota State Highway Com'r, 870309

• Decision Date: 16 May 1988
• Docket Number: No. 870309,870309
• Parties: Henry BICKLER, a.k.a. Henry Bichler, Petitioner and Appellee, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 146

423 N.W.2d 146

Henry BICKLER, a.k.a. Henry Bichler, Petitioner and Appellee, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Respondent and Appellant.

Civ. No. 870309.

Supreme Court of North Dakota.

May 16, 1988.

Robert E. Lane, Asst. Atty. Gen., Bismarck, for respondent and appellant.

Brian W. Nelson, Fargo, for petitioner and appellee.

LEVINE, Justice.

We consider the extent of an arrestee's qualified statutory right to consult with counsel before deciding to take a chemical test under Kuntz v. State Highway Commissioner, 405 N.W.2d 285 (N.D.1987).

After he was arrested for DUI, Henry Bickler was taken to Cass County jail where he asked to call an attorney before taking an Intoxilyzer test. Permission was granted and Bickler called Fargo attorney Brian Nelson, who appeared at the jail five to ten minutes later. Attorney Nelson requested to confer with Bickler "in a private setting." Because the arresting officer, Sergeant Bjornson, refused to allow a conference out of his view, attorney Nelson left the jail without asking Bickler any questions. Bickler refused to take the Intoxilyzer test, resulting in the revocation of his driver's license for one year under NDCC Sec. 39-20-05(3).

After an administrative hearing, the hearing officer found that Bickler "had an opportunity to consult with an attorney," and that he "refused the test offered by the officer." He concluded that Bickler refused the test and revoked Bickler's driving privileges for one year.

Bickler appealed to the Cass County district court, which ruled that a reasonable opportunity to consult with counsel required a free and open discussion between the attorney and client, for which a private room should be provided, if available. The court reasoned that the integrity of the Intoxilyzer test could be protected by having the attorney prohibit the client's eating, drinking or smoking during the private conference. The court reversed the agency decision on the grounds that Bickler did not refuse the test because he was not given a reasonable opportunity to consult with his attorney. This appeal followed.

While we do not defer to the district court's review, we look to its analysis for guidance in our review of the agency decision. Cf. Medcenter One v. Job Service North Dakota, 410 N.W.2d 521 (N.D.1987) (analysis of district court entitled to respect because "the legislatively mandated review by the district court cannot be ineffectual.").

In this case our review of the agency decision focuses on three of the permissible inquiries under NDCC Sec. 28-32-19:

(1) Is the decision in accordance with the law?

(2) Are the findings of fact supported by a preponderance of the evidence?

(3) Are the conclusions of law and the decision supported by the findings of fact?

In order to determine whether the agency decision is in accordance with the law, we look to the law and its application to the facts. We held recently in Kuntz v. State Highway Commissioner, 405 N.W.2d at 285 (Erickstad, C.J., and VandeWalle, J., dissenting and filing opinions), that if an arrested person asks to consult with an attorney before deciding to take a chemical test, he must be given a reasonable opportunity to do so if it does not materially interfere with the administration of the test. We believe that our holding in Kuntz eliminated the contradiction between the post-arrest Miranda assurance of a right to counsel, and the subsequent denial of access to an attorney's advice on whether to take the chemical test.

When an arrestee consults with counsel, he must be allowed to do so in a meaningful way. A consultation would be meaningless if relevant information could not be communicated without being overheard. There is a right to privacy inherent in the right to consult with counsel. However, the degree of that privacy must be balanced against the need for an accurate and timely chemical test. Farrell v. Municipality of Anchorage, 682 P.2d 1128 (Alaska App.1984); State Dept. of Public Safety v. Kneisl, 312 Minn. 281, 251 N.W.2d 645 (1977). In Kuntz we were careful to recognize that the right to consult with an attorney "is a qualified right which cannot be used to materially hamper the process of administering the chemical test under Chapter 39-20 N.D.C.C." Kuntz, 405 N.W.2d at 290. We illustrated the limited nature of the right by pointing out that if an arrested person was unsuccessful in reaching an attorney by telephone within a reasonable time, he must nevertheless make an election to take or refuse the chemical test.

This case presents another example of the limited nature of the right to consult with an attorney. Under the Approved Method to Conduct Breath Test with Intoxilyzer (Office of State Toxicologist, Jan. 31, 1985), an officer must ascertain...