Corriveau v. Commissioner of Public Safety
| Decision Date | 21 January 1986 |
| Docket Number | No. C8-85-1335,C8-85-1335 |
| Citation | 380 N.W.2d 214 |
| Parties | James Prestidge CORRIVEAU, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. Respondent did not have a statutory or constitutional right to consult an attorney prior to his decision whether to take an Intoxilyzer test.
2. Respondent, who failed to provide two adequate breath samples, "refused" testing.
Jerry Strauss, Robert C. Sipkins, St. Louis Park, for respondent.
Hubert H. Humphrey, III, Atty. Gen., Lawrence M. Schultz, Michael P. Shroyer, Spec. Asst. Attys. Gen., St. Paul, for appellant.
Considered and decided by POPOVICH, C.J., PARKER and FOLEY, JJ., with oral argument waived.
SUMMARY OPINION
Respondent James Corriveau was arrested for driving while intoxicated and was given an Intoxilyzer test. The trial court found that his first breath sample was .164 with a replicate reading of .168. The second sample was deficient. His license was apparently revoked for one year, and he petitioned for judicial review on a number of counts.
After a hearing, the trial court rescinded the revocation on the ground that the respondent was denied the right to consult with an attorney prior to deciding whether to take the test, pursuant to this court's decision in Nyflot v. Commissioner of Public Safety, 365 N.W.2d 266 (Minn.Ct.App.1985). The trial court also found that the period of respondent's revocation should be 90 days, for failing the test, rather than one year for refusing testing. It also specifically found that respondent appeared to have no physical disability and that there was no evidence that respondent was "faking" his second attempt. The Commissioner appealed the decision.
On appeal, the respondent conceded that the trial court's rescission of the revocation was erroneously made and should be reversed. This was based on two controlling cases issued after the trial court's decision. First, in Nyflot v. Commissioner of Public Safety, 369 N.W.2d 512, 513 (Minn.1985), the supreme court reversed the court of appeals, stating that a driver does not have a constitutional or statutory right to consult with an attorney prior to making the decision whether to take a chemical test to determine alcohol concentration. Second, in Godderz v. Commissioner of Public Safety, 369 N.W.2d 606 (Minn.Ct.App.1985), this court held that two adequate breath samples are required for a valid breath test. A partial Intoxilyzer test cannot be used to establish an alcohol concentration of .10 or more. Id. at 607. Failure to provide two adequate breath samples constitutes a refusal. Minn.Stat. Sec. 169.123, subd. 2b(c) (1984). The consequence of refusing testing is that the driver's license is revoked for a period of one year. Minn.Stat. Sec. 169.123, subd. 4. Based on Godderz and Nyflot, the trial court's decision is reversed and the revocation of...
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State, Dept. of Motor Vehicles and Public Safety v. Brough
...test, his subsequent refusals to submit to a blood test constituted a refusal under NRS 484.386(3). See Corriveau v. Commissioner of Public Safety, 380 N.W.2d 214 (Minn.App.1986). We Failure to provide two adequate breath samples constitutes a refusal for purposes of NRS 484.386(3). McCharl......
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Anderson v. Commissioner of Public Safety
...Providing one adequate sample and one deficient sample constitutes a refusal to submit to testing. Corriveau v. Commissioner of Public Safety, 380 N.W.2d 214, 215 (Minn.Ct.App.1986). Anderson's failure to provide two adequate breath samples constituted a refusal to submit to testing under t......