Didonato v. Iowa Dept. of Transp., Motor Vehicle Div., 89-1042

• Decision Date: 23 May 1990
• Docket Number: No. 89-1042,89-1042
• Citation: 456 N.W.2d 367
• Parties: Anthony Mark DIDONATO, Appellant, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellee.
• Court: Iowa Supreme Court

Page 367

456 N.W.2d 367

Anthony Mark DIDONATO, Appellant, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellee.

No. 89-1042.

Supreme Court of Iowa.

May 23, 1990.

Dennis P. Ogden, Des Moines, for appellant.

Thomas J. Miller, Atty. Gen., Charles J. Krogmeier, Deputy Atty. Gen., and Mark Hunacek, Asst. Atty. Gen., for appellee.

Considered by LARSON, P.J., and LAVORATO, NEUMAN, SNELL, and ANDREASEN, JJ.

SNELL, Justice.

Anthony Mark Didonato appeals suspension of his Iowa driver's license and vehicle registration pursuant to Iowa Code sections 321J.12 and 321A.17 (1987). He claims he was denied the opportunity to place a telephone call pursuant to Iowa Code section 804.20 (1987) prior to signing an implied consent form. At approximately 2:25 a.m. on July 3, 1988, Didonato was arrested and cited for first-offense operating while intoxicated. After being transported to the police station, Didonato demanded to place a telephone call, but was denied the opportunity while the arresting officer filled out an implied consent form.

Didonato's continued demands to place a telephone call led to a scuffle, after which Didonato signed the form and was requested to provide a urine sample for testing. He had difficulty in providing the specimen, and in the interlude between the request and provision of the sample was allowed to make a telephone call to his sister, who is an attorney.

The department of transportation revoked Didonato's license, on the basis that the urine test result showed a blood alcohol content of .10% or more. See Iowa Code § 321J.2 (1987 Supp.). Didonato requested a hearing, claiming that the failure to provide him with a telephone call prior to requiring his signature on the implied consent form was a violation of his limited statutory right to counsel pursuant to Iowa Code section 804.20 (1987). See State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978). The hearing officer found that Didonato had in fact asked to call a friend, rather than making a general request for a telephone call, and that he had in any event been allowed to make a telephone call to someone with the same last name prior to undergoing the chemical test. The hearing officer concluded that section 804.20 does not require arresting officers to grant requests for telephone calls to friends and upheld the revocation. Didonato appealed to the district court, which upheld the suspension on the same grounds cited by the hearing officer. He now appeals to this court, and we affirm.

A court reviewing agency action shall grant appropriate relief if substantial rights of the appellant have been prejudiced under the standards enumerated in Iowa Code section 17A.19(8). Aluminum Co. of America v. Employment Appeal Bd., 449 N.W.2d 391, 393-94 (Iowa 1989). If the agency's action is supported by substantial evidence when the record is viewed as a whole, and is not affected by errors of law, we must affirm the decision. Id.

I. Application of Section 804.20 to Chapter 321J.

The State argues that since Didonato elected to take the test rather than to refuse to take it, the administrative penalty imposed is the most lenient he could have obtained. It contends that the limited statutory right to counsel granted by section 804.20 is not applicable in the context of this violation of chapter 321J.

Our cases have held that there is a limited right to counsel pursuant to section 804.20 for persons confronting application of the implied consent provisions of chapter 321J. See, e.g., Vietor, 261 N.W.2d at 832. The State points out that many of these cases involve individuals who refused to take a chemical test after being denied counsel. See Ferguson v. State, Dep't of Transp., Motor Vehicle Div., 424 N.W.2d 464 (Iowa 1988); Fuller v. Dep't of Transp., 275 N.W.2d 410 (Iowa 1979); State v. Vietor, 261 N.W.2d 828 (Iowa 1978). The State reasons that in those cases rescission of the revocation was proper because the individuals involved were prejudiced by the denial of counsel, since the administrative penalties for refusal are greater than those for failing the test. Iowa Code § 321J.9 (1987). The license revocation period is 240 days if a person refuses to submit to a chemical test, whereas the period is 180 days if the person submits to the test and the result shows an alcohol concentration of .10% or more. The advice of counsel, the State argues, may have resulted in a sounder decision with less harsh results. By way of contrast, the State contends, an individual who chooses to consent to chemical testing faces the lesser of the two administrative penalties, and as a result is not prejudiced by denial of his or her statutory right to counsel.

This argument raises the question of whether violation of the limited statutory right to counsel requires exclusion of the evidence obtained within the context of a license revocation proceeding. In Manders v. Iowa Department of Transportation, 454 N.W.2d 364 (Iowa 1990), we recently decided that there are no provisions in the several statutes comprising the implied consent law itself that suggest any basis for imposition of a statutory exclusionary rule in the context of administrative proceedings absent adjudication in a related criminal proceeding. Id. at 366.

The provisions of section 804.20, however, are broadly applicable, although not directly related to the license suspension provisions of chapter 321J. This court has ruled that section 804.20 grants a limited right to consult with counsel in a criminal context. Vietor, 261 N.W.2d at 832. We have also held that the limited right to counsel adopted by Vietor is applicable to department of transportation revocation proceedings. Ferguson, 424 N.W.2d at 466; Fuller, 275 N.W.2d at 411. Fuller establishes the principle that the exclusionary rule adopted in the context of criminal cases is fully applicable to license revocation proceedings based on a refusal to submit to a chemical test.

II. Mandatory or Directory Statute Permitting Phone Call.

Iowa Code section 804.20 imposes a duty upon police officers to allow a person in custody to telephone a family member or attorney without unnecessary delay after arrival at the place of detention. The statutory mandate is that the officer shall allow the requested telephone call. In drafting the interpretive provisions of our Code, the legislature has determined that, "The word 'shall' imposes a duty." Iowa Code § 4.1(36)(a) (1987).

In the context of administrative proceedings related to license revocations under chapter 321J, however, this court has determined that the duty imposed may be either "directory" or "mandatory." Taylor v. Department of Transp., 260 N.W.2d 521, 522 (Iowa 1977). The dichotomy between a mandatory and a directory statute relates to whether a failure to perform the duty will have the effect of invalidating the governmental action that the requirement affects. Id. at 523.

In determining whether a statute is directory or mandatory, we look to the purpose the statute was designed to serve. See Downing v. Iowa Dep't of Transp., 415 N.W.2d 625, 628 (Iowa 1987). When the duty imposed is not essential to the main statutory objective, the provision is directory and failure to perform the duty will not affect the validity of subsequent proceedings unless prejudice is shown. Id. When the duty imposed by the provision is essential to effect the main purpose of the statute, however, the provision is mandatory, and failure to perform the duty will invalidate subsequent proceedings. Id.

The State contends that the duty imposed by section 804.20 is directory. It bases this contention upon our application of the principles just cited to determine that the main statutory objective of chapter 321J is to remove dangerous, legally intoxicated drivers from the state's highways. Id. at 628. Since the duty to provide an attorney is not consistent with the main purpose of chapter 321J, it concludes, the duty is directory in the absence of a demonstration of prejudice.

The State's argument, however, focuses upon the wrong statute. In order to determine whether the duty imposed by section 804.20 is mandatory or directory, we must look to the main purpose of that statute. The main purpose behind...