Davis v. Commissioner of Public Safety, s. C4-93-874

• Decision Date: 24 June 1994
• Docket Number: C8-93-1123,C4-93-1393 and C6-93-1394,C2-93-1229,C6-93-1122,C0-93-1228,C3-93-1143,Nos. C4-93-874,C7-93-1226,C9-93-1227,s. C4-93-874
• Citation: 517 N.W.2d 901
• Parties: Christine E. DAVIS, et al., Petitioners, Appellants, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
• Court: Minnesota Supreme Court

Page 901

517 N.W.2d 901

Christine E. DAVIS, et al., Petitioners, Appellants, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.

Nos. C4-93-874, C6-93-1122, C8-93-1123, C3-93-1143,

C7-93-1226, C9-93-1227, C0-93-1228, C2-93-1229,

C4-93-1393 and C6-93-1394.

Supreme Court of Minnesota.

June 24, 1994.

SYLLABUS

Appellants have failed to meet their burden of establishing that due process is violated by legislature's response to Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn.1991), specifically, (1) the legislature's changing the standard implied consent advisory that police give DWI arrestees and (2) the legislature's making immediate hardship relief for prehearing revocation unavailable until 15 days after the revocation for a first offender.

Faison T. Sessoms, Minneapolis, and Richard L. Swanson, Chaska, and Howard S. Carp, Minneapolis, and Paul B. Ahern, Froberg & Ahern, Minnetonka, and James H. Leviton, Minneapolis, for appellants.

Hubert H. Humphrey, III, Atty. Gen., Nancy J. Bode, Jeffrey F. Lebowski, Joel A. Watne, Asst. Attys. Gen., St. Paul, for respondent.

Heard, considered and decided by the court en banc.

OPINION

KEITH, Chief Justice.

This case, ¹ involving consolidated appeals, grew out of the legislature's response to this court's decision in Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn.1991). Friedman held that under the Minnesota Constitution, DWI arrestees have a limited right to have a reasonable amount of time to attempt to consult with counsel by telephone before deciding whether to comply with the statutory requirement that they submit to implied consent testing. 473 N.W.2d at 837. After the decision in Friedman was filed, the legislature changed the standard implied consent advisory that law enforcement personnel give DWI arrestees and made immediate hardship relief for prehearing revocation unavailable until 15 days after the revocation for a first offender.

The two key issues created by this legislation are: (1) whether the current advisory violates due process, federal or state, by failing to inform the arrestee (a) that one of the consequences of violating the implied consent law (by refusing a test or failing a test) is loss of license and (b) that the arrestee has a right to an additional independent test while in custody; and (2) whether the immediate prehearing revocation of a driver's license for violating the implied consent law still comports with due process, as this court held in Heddan v. Dirkswager, 336 N.W.2d 54 (Minn.1983), now that prompt hardship relief from immediate revocation is unavailable.

I.

Before Friedman, the statutory standard advisory informed each DWI arrestee, among other things: (a) Minnesota law requires that the person take a test to determine if the person is under the influence of alcohol or a controlled substance; (b) if the person refuses testing, the person's driver's license will be revoked for at least one year; (c) if the test is taken and the results show an alcohol concentration of .10 or more, the person's driver's license will be revoked for at least 90 days; (d) whether the test is taken or refused, the person may be subject to criminal penalties for DWI; (e) after testing the person may consult with an attorney; (f) after testing the person has the right to obtain additional testing, while in custody, by someone of the person's choosing; and (g) the refusal to take a test may be offered in evidence against the person at trial. See Minn.Stat. Sec. 169.123, subds. 2(b)(1)-(4), 2(b)(6)-(7) (Supp.1991).

Following Friedman the legislature amended the advisory, effective August 1, 1993. Specifically, the legislature dropped (b), (c), (d), (f) and (g) above from the old advisory; retained (a) and (e); and added a statement that refusal to take a test is a crime. The new advisory now tells the arrestee: (a) Minnesota law requires that the person take a test to determine if the person is under the influence of alcohol or a controlled substance; (b) refusal to take a test is a crime; (c) a test will be compelled if the arresting officer has probable cause to suspect a violation of criminal vehicular homicide or injury laws; and (d) the person has the right to consult with an attorney, but consultation "cannot unreasonably delay administration of the test." Act of May 24, 1993, ch. 347, Sec. 10, 1993 Minn.Laws 2450, 2457-58, codified at Minn.Stat. Sec. 169.123, subd. 2(b) (Supp.1993).

Upholding the legislature's action, the court of appeals in this appeal focused on this court's statement in Friedman that "[a]n attorney, not a police officer, is the appropriate source of legal advice." Davis, 509 N.W.2d at 387 (quoting Friedman, 473 N.W.2d at 833). The court of appeals concluded, "Once the supreme court announced the limited right to counsel in Friedman, the legislature had the power to shift from the police officer to the attorney the burden of informing the driver about the details of rights and sanctions under the implied consent law." 509 N.W.2d at 387.

In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the United States Supreme Court held, inter alia, that admission in a DWI prosecution of evidence of the defendant's refusal to submit to blood alcohol testing does not violate federal due process even though the defendant was not warned that his refusal could be used against him at trial. ² In reaching this conclusion, the Court rejected the argument that "the warnings given here implicitly assure a suspect that no consequences other than those mentioned will occur." 459 U.S. at 566, 103 S.Ct. at 924. The Court further noted, "Importantly, the warning that he could lose his driver's license made it clear that refusing the test was not a 'safe harbor,' free of adverse consequences." Id.

Earlier, in Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), the Court had held that the Massachusetts prehearing revocation scheme satisfied federal due process in large part because a prompt post-suspension hearing was available, even though the state did not notify the driver of the availability of such a remedy. Dissenting, Justice Stewart argued that the scheme violated due process in part because " 'reasonable' notice of a procedural right is itself integral to due process." Id. at 27-28, 99 S.Ct. at 2625-2626 (Stewart, J., dissenting).

It thus appears that appellant drivers' argument that revocation of their licenses violates federal due process because they were not properly warned is an argument that is unlikely to find support from a majority of the Justices of the United States Supreme Court, as presently constituted, particularly since Minnesota drivers are given a reasonable opportunity to attempt to speak with counsel.

Appellant drivers also argue that California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), supports holding at least that the lack of a warning as to the right to additional testing violates federal due process. Trombetta held that federal due process does not require that police preserve breath samples in order to introduce the breath test results at trial. Id. at 491, 104 S.Ct. at 2535. The Court concluded, on the basis of the reliability of breath test procedures, that it was extremely unlikely that the failure to preserve breath samples for independent testing deprived the defense of exculpatory evidence. Id. at 489, 104 S.Ct. at 2534. Contrary to what appellants argue, the opinion was not based in part on the availability of independent testing. The Court said, "[I]t is irrelevant to our inquiry that California permits an accused drunken driver to have a second blood-alcohol test conducted by independent experts, since there is no evidence on this record that [the defendants] were aware of this alternative." Id. at 491 n. 11, 104 S.Ct. at 2535 n. 11.

The real question is whether this court ought to interpret the due process clause of the Minnesota constitution as requiring that law enforcement officers give a more complete implied consent advisory than was previously required by statute.

The state argues that this court has already in effect held that due process does not require the giving of an implied consent warning other than that prescribed by the legislature. The state cites State v. Abe, 289 N.W.2d 158, 161 (Minn.1980) (rejecting claim that, in context of that case, the failure to give a driver who took a test a warning that a 90-day revocation would be imposed if he failed the test did not violate the right to due process), and State v. Gross, 335 N.W.2d 509, 510 (1983) (paraphrasing Abe and stating that the only advisory required is that mandated by statute). The state also cites McDonnell v. Commissioner of Public Safety, 473 N.W.2d 848, 853 (Minn.1991). In that case the driver argued that the implied consent advisory misled her into thinking that she might be prosecuted for refusing to submit to testing even though her driver's license had not been revoked before. In answering the claim, this court noted that the United States Supreme Court in Neville had held that a state does not violate due process by choosing not to advise an arrestee of all the consequences of refusing to submit to implied consent testing. McDonnell, 473 N.W.2d at 853. We do not believe the language in these cases creates an insurmountable barrier to holding that the due process clause of the Minnesota Constitution requires the giving of a more complete implied consent advisory.

We also do not think that it is an answer to say that the legislature could, if it wanted, deny the arrestee any choice and simply allow police with probable cause to obtain the sample needed pursuant to basic Fourth Amendment law, which the United States Supreme Court allowed in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The fact that the state might allow police to obtain the sample they want pursuant to the Fourth...