Davis v. Commissioner of Public Safety
| Decision Date | 30 November 1993 |
| Docket Number | CX-93-1124,C3-93-1143,Nos. C4-93-874,C4-93-1393,C2-93-1229,C9-93-1227,C8-93-1123,C6-93-1122,C6-93-1394,C7-93-1226,C0-93-1228,s. C4-93-874 |
| Citation | 509 N.W.2d 380 |
| Parties | Christine E. DAVIS, Petitioner, Appellant (C4-93-874), Jason Curtis Hawker, Petitioner, Respondent (C6-93-1122), Marlana Katherine Schmelzer, Petitioner, Respondent (C8-93-1123), Arlene Ann Lettow, Petitioner, Respondent (), Scott L. Zimmerman, Petitioner, Appellant (C3-93-1143), Lloyd Dennis Iverson, Petitioner, Respondent (C7-93-1226), Jeffrey Lawrence Yorek, Petitioner, Respondent (C9-93-1227), David Gary Dopp, Petitioner, Respondent (C0-93-1228), Thomas Edward Decker, Petitioner, Respondent (C2-93-1229), Arne Marvin Berg, Petitioner, Respondent (C4-93-1393), Robert Arleigh Willetts, Petitioner, Respondent (C6-93-1394), v. COMMISSIONER OF PUBLIC SAFETY, Respondent (C4-93-874, C3-93-1143). Appellant (C6-93-1122, C8-93-1123, , C7-93-1226, C9-93-1227, C0-93-1228, C2-93-1229, C4-93-1393, C6-93-1394). 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, C6-93-1394. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. A driver's limited right to counsel before deciding to submit to an alcohol concentration test is not vindicated unless the police officer gives the driver a reasonable amount of time to contact an attorney.
2. The implied consent advisory, Minn.Stat. Sec. 169.123, subd. 2(b) (1992), does not violate fundamental fairness inherent in due process when the driver has a limited right to consult with an attorney before deciding whether to take an alcohol concentration test.
3. The implied consent law does not violate procedural due process.
4. Police officers do not prevent or deny additional testing under Minn.Stat. Sec. 169.123, subd. 3 (1992) when they do not inform drivers that they have a right to an additional test while held in custody.
5. The larger reinstatement fee imposed after an implied consent revocation does not make the implied consent law criminal in nature by rendering it excessively harsh in relation to its remedial purpose.
6. The claim that the implied consent statute has become criminal in nature due to the later use of civil license revocations for enhancement purposes and due to other recent legislation is premature as to drivers not yet subject to those provisions.
7. Testimony of the arresting officer was sufficient to establish probable cause to believe that a driver was under the influence, even though the officer no longer independently remembered the incident and relied upon his report of the arrest.
Faison T. Sessoms, Jr., Minneapolis, for Christine E. Davis and Scott L. Zimmerman.
Paul B. Ahern, Froberg & Ahern, P.A., Minnetonka, for Jason Curtis Hawker.
Richard L. Swanson, Chaska, for Marlana Katherine Schmelzer, Arlene Ann Lettow, Lloyd Dennis Iverson, Jeffrey Lawrence Yorek, David Gary Dopp and Thomas Edward Decker.
James H. Leviton, Faison T. Sessoms, Jr., Minneapolis, for Arne Marvin Berg.
Howard S. Carp, Minneapolis, for Robert Arleigh Willetts.
Hubert H. Humphrey, III, Atty. Gen., Jeffrey S. Bilcik, Jeffrey F. Lebowski, Joel A. Watne, Asst. Attys. Gen., St. Paul, for Commissioner of Public Safety.
Considered and decided by ANDERSON, C.J., and PARKER, HUSPENI, CRIPPEN, SCHUMACHER, SHORT, and AMUNDSON, JJ. *
These appeals were consolidated to consider related issues concerning constitutional and statutory challenges to the implied consent law. In addition, one case raises a probable cause issue, and another raises a right to counsel claim.
We uphold the implied consent law as against challenges on fundamental fairness, procedural due process, and statutory grounds. We find premature the drivers' claims that related changes in other laws convert the implied consent proceeding into a criminal proceeding. The larger reinstatement fee does not render the implied consent law criminal. Finally, we uphold the probable cause determination, and we agree with the district court that one driver's right to counsel was not vindicated. We affirm and reverse accordingly.
The Commissioner of Public Safety revoked these drivers' licenses pursuant to the implied consent law. Minn.Stat. Sec. 169.123, subd. 4 (1992). The drivers petitioned for judicial review, challenging the implied consent law on a variety of related issues. The district courts in Hawker, Schmelzer and Lettow found the law fundamentally unfair, as did the district courts in Berg and Willetts. The Hawker, Schmelzer and Lettow courts also addressed a statutory challenge to the advisory. The district courts in Iverson, Yorek, Dopp and Decker, as well as in Berg and Willetts, found the implied consent law violated procedural due process.
Eight district courts addressed the issue of whether changes in related laws converted the implied consent hearing into a criminal procedure, entitling the drivers to additional rights. The district courts in Iverson, Yorek, Dopp and Decker indicated that it did, after finding the implied consent law could not survive a general due process analysis. The courts in Berg and Willetts relied primarily on their ruling that the civil label of implied consent proceedings is no longer valid. The district courts in Davis and Zimmerman rejected the criminal due process argument. Finally, the district court in Lettow determined the driver's right to counsel had not been vindicated, and the district court in Davis rejected a probable cause argument.
This court initially consolidated Hawker, Schmelzer, Lettow, Iverson, Yorek, Dopp and Decker for oral argument, primarily to consider due process and statutory challenges. We also consolidated Davis, Zimmerman, Berg and Willetts, mainly to consider the criminal due process issue. We now consolidate both sets of cases for consideration in this opinion.
I. Was Lettow's right to counsel vindicated?
II. Does the implied consent advisory violate fundamental fairness inherent in due process?
III. Does the implied consent law violate procedural due process guarantees?
IV. Does a police officer's failure to advise a driver of the right to obtain an additional test by a person of the driver's own choosing constitute prevention or denial of that right such that the license revocation should be rescinded?
V. Has the implied consent proceeding become "criminal" in nature as a result of recent changes in related laws?
VI. Did the Commissioner of Public Safety show by a preponderance of the evidence that the police officer had probable cause to arrest Zimmerman for DWI?
The first issue we address is a right to counsel claim involving only respondent Lettow. The district court found Lettow was not given a reasonable amount of time to contact an attorney, and the Commissioner challenges this determination. We affirm the district court's conclusion that Lettow's right to counsel was not vindicated.
On February 27, 1993, a deputy sheriff arrested Lettow for DWI at approximately 1:30 a.m., and read her the implied consent advisory. She said she wished to speak to an attorney. The deputy allowed her to use a telephone at 2:44 a.m., and provided her with a telephone directory.
Lettow made three telephone calls. She was unable to reach the first person called. The district court found the second call was to a friend who had been a paralegal and knew many attorneys. The friend agreed to try to contact an attorney. The deputy advised Lettow she would have to make a decision at 3:05 a.m., and suggested that she call another attorney. At 3:05, the deputy advised Lettow that her time had expired. He allowed her to call her friend back, but the line was busy. At 3:07, the deputy advised Lettow that she would have to make a decision without an attorney and asked if she would take a breath test.
Lettow refused to take a test, and her driver's license was revoked. The district court ordered the revocation rescinded, holding that Lettow was not given a reasonable amount of time to contact an attorney.
A driver has a limited right to consult with an attorney before making a decision to take an implied consent test. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991).
The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel. If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.
Prideaux v. State, Dep't of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976), quoted in Friedman, 473 N.W.2d at 835.
Whether the officer provides the driver with a reasonable amount of time to contact an attorney involves questions of both fact and law. Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn.App.1992). This court has discussed a nonexclusive list of factors that are relevant in determining whether a given amount of time was reasonable. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn.App.1992), pet. for rev. denied (Minn. Oct. 20, 1992). The factors include the time of day, the length of time the driver has been under arrest, and whether the driver made a good faith and sincere effort to contact counsel. Id. The totality of the facts must be considered. Parsons, 488 N.W.2d at 502.
We find that the district court properly used the analysis set forth in Parsons and Kuhn to conclude that Lettow was not given a reasonable amount of time to contact an attorney. The court considered several factors, including the early hour of the morning, the "obviously active" calling by Lettow's friend as shown by the busy signal at 3:05 a.m., and the officer's "arbitrary" determination that her efforts to contact an attorney would be limited to 20 minutes, coupled with his announcement of that time limit after the allocated 20-minute period had begun to run.
We...
To continue reading
Request your trial
- Williams v. Comm'r of Public Safety
-
Ruffenach v. Commissioner of Public Safety
...was stayed pending the supreme court's decision in Davis v. Commissioner of Pub. Safety, 517 N.W.2d 901 (Minn.1994), aff'g, 509 N.W.2d 380 (Minn.App.1993). By order dated September 13, 1994, this court held that Davis did not directly address the issue raised by Ruffenach on ...
-
Maietta v. Commissioner of Public Safety, C2-02-2261.
...a right to counsel, "that holding does not make the implied consent proceeding `criminal' in nature * * *." Davis v. Comm'r of Pub. Safety, 509 N.W.2d 380, 392 (Minn.App. 1993), aff'd, 517 N.W.2d 901, 905 (Minn. 1994). The issue in this implied consent proceeding is whether a driver refused......
-
Poeschel v. Comm'r of Pub. Safety
...driver regarding the right to additional testing and to assist the driver in obtaining additional testing. Davis v. Comm'r of Pub. Safety, 509 N.W.2d 380, 386–87 (Minn.App.1993), aff'd, 517 N.W.2d 901 (Minn.1994). Also, this court has held that a driver's limited right to pretest counsel wa......