Gottschalk v. Sueppel

• Decision Date: 08 March 1966
• Docket Number: No. 51828,51828
• Citation: 258 Iowa 1173,140 N.W.2d 866
• Parties: Leroy Dale GOTTSCHALK, Appellee, v. William F. SUEPPEL, Commissioner of the Iowa Department of Public Safety, Appellant.
• Court: Iowa Supreme Court

Page 866

140 N.W.2d 866

258 Iowa 1173

Leroy Dale GOTTSCHALK, Appellee, v. William F. SUEPPEL, Commissioner of the Iowa Department of Public Safety, Appellant.

No. 51828.

Supreme Court of Iowa.

March 8, 1966.

Rehearing Denied May 3, 1966.

Lawrence F. Scalise, Atty. Gen., Joseph S. Brick and Michael S. McCauley, Asst. Attys. Gen., for appellant.

William B. Norton, Lowden, for appellee.

GARFIELD, Chief Justice.

The commissioner of public safety has appealed from an order of the district court vacating the revocation for 120 days of plaintiff Gottschalk's driver's license because of his refusal to submit to a chemical test under the Uniform Chemical Test for Intoxication Act, frequently called the Implied Consent Law, sections 37 through 50, chapter 114, Laws of the Sixtieth General Assembly.

The court's decision is based on its conclusion plaintiff should have had the opportunity to consult with his attorney before exercising the option of consenting or refusing to submit to a chemical test under the Act, citing Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

We think the Escobedo case does not support the trial court's view nor has there been cited any provision of the federal or state constitution, any statute or reported court decision which does.

On the evening of July 1, 1964, plaintiff was involved in a motor vehicle collision in the town of Lowden. In response to a call Deputy Sheriff Hancock went to Lowden, investigated the accident, talked with plaintiff and others, placed him under arrest for operating a motor vehicle while intoxicated and drove him to Tipton, the county seat. There a sergeant of the state highway patrol read to him a written request of the sheriff and Deputy Hancock that a specimen of his blood be withdrawn which plaintiff refused. A similar written request was then made that a specimen of his urine be withdrawn which plaintiff also refused. He also refused on request to submit to other tests.

The written requests plainly stated that a refusal to submit to a chemical test would result in a revocation of plaintiff's driver's license for a period of 120 days to a year, and the officers also explained to him several times what would happen to him if he did not consent to a blood or urine test. Plaintiff still adhered to his refusal. A physician was available to withdraw the blood.

The sheriff and his deputy made a sworn report to the commissioner of public safety that they had reasonable grounds to believe plaintiff was operating a motor vehicle while intoxicated, they had placed him under arrest for such offense and he refused to submit to the requested chemical testing. Thereupon the commissioner revoked plaintiff's license to drive.

At plaintiff's request a hearing was had before the commissioner's authorized agent resulting in an order sustaining the revocation of the license. Section 44 of chapter 114, Laws of the Sixtieth General Assembly, provides: 'The hearing shall be recorded and its scope shall cover the issues of whether a peace officer had reasonable grounds to believe the person to have been operating a motor vehicle * * * while in an intoxicated condition, whether the person was placed under arrest and whether he refused to submit to the test or tests.'

The affirmative of the three issues referred to in the quoted provision was fully shown at the hearing. It also appeared by Deputy Hancock's testimony that after he and plaintiff arrived at Tipton plaintiff asked to have his attorney called. He lived at Lowden, about 15 miles distant. The attorney was called by phone, could not be reached and a message was left for him to call. The attorney later called the sheriff but was not allowed to talk over the phone with plaintiff because of the prevailing policy not to allow one under arrest for intoxication to talk over the phone. If an attorney came to the sheriff's office he was permitted to confer with anyone under arrest. The sheriff offered to relay any message to plaintiff from the attorney and informed him plaintiff was under arrest.

It also appeared at the hearing that about a half hour after plaintiff was taken to jail from the sheriff's office the attorney came there and conferred with his client. This was probably within the two hours after the arrest was made, during which a chemical test may be provided (section 39 of chapter 114). There is no evidence of any attempt to consent to a chemical test after the attorney saw plaintiff. The attorney argued to the hearing officer that when he telephoned the sheriff's office he 'should have been given an opportunity to advise the client what the law was and that he had to take a test.'

The only testimony by plaintiff at the administrative hearing is that he told Deputy Hancock at Lowden, rather than Tipton, he wanted his attorney.

It was shown that the sheriff and his deputy were prepared to administer a chemical test of both blood and urine but not other tests of breath or saliva.

It also appeared plaintiff had previously been convicted of operating a motor vehicle while intoxicated in Cedar county in 1960.

Upon plaintiff's petition the district court heard the matter upon the transcript of the testimony and other proceedings on which the commissioner and his authorized agent acted in revoking the license (see section 45) and, as stated, the court vacated the revocation.

Incidentally, we may observe that section 755.17, Code, 1962, entitled 'Communications by arrested persons,' provides in part: 'If the person arrested or restrained is intoxicated, * * * the (phone) call shall be made by the person having custody. An attorney shall be permitted to see and consult the person arrested or restrained alone and in private at the jail or other place of custody.'

I. We set out the pertinent provisions of our Uniform Chemical Test for Intoxication Act (see section 50), commonly called the Implied Consent Law, chapter 114, Sixtieth General Assembly:

'Section 39. Any person who operates a motor vehicle * * * under such circumstances as to give reasonable grounds to believe the person to have been operating a motor vehicle while in an intoxicated condition, shall be deemed to have given consent to the withdrawal from his body of specimens of his blood, breath, saliva, or urine, and to a chemical test or tests thereof, for the purpose of determining the alcoholic content of his blood, subject to the provisions hereinafter set out. The withdrawal of such body substances, and the test or tests thereof, shall be administered at the written request of a peace officer having reasonable grounds to believe the person to have been operating a motor vehicle * * * while in an intoxicated condition, and only after the peace officer has placed such person under arrest for the offense of operating a motor vehicle while in an intoxicated condition. If such person requests that a specimen of his blood not be withdrawn, then a specimen of his breath, saliva, or urine shall be withdrawn at the written request of such peace officer; provided, however, that if such person refuses to submit to any chemical testing, no test shall be given, and the provisions of section forty-three (43) of this Act shall apply. However, if such peace officer fails to provide such test within two (2) hours after such arrest, no test shall be required, and there shall be no revocation under the provisions of section forty-three (43) of this Act.'

Section 40 provides that only a licensed physician, medical technologist or registered nurse may withdraw such body substance for determining alcoholic content of blood and that the person arrested may have independent chemical tests made in addition to any test at a peace officer's request.

'Section 42. A peace officer shall advise any person who is requested to take any chemical test that a refusal to submit to such test will result in revocation of the person's license or privilege to operate a motor vehicle; * * *.' (As stated, the officers complied with this requirement.)

'Section 43. If a person under arrest refuses to submit to the chemical testing, no test shall be given, but the commissioner, upon the receipt of a sworn report of the peace officer that he had reasonable grounds to believe the arrested person to have been operating a motor vehicle * * * while in an intoxicated condition, that he had placed such person under arrest for the offense * * * and that the person had refused to submit to the chemical testing, shall revoke his license or permit to drive * * * for * * * not less than one hundred twenty (120) days nor more than one (1) year; * * *.'

Section 44, part of which is quoted, supra, provides for the hearing before the commissioner or his authorized agent on the question of revocation. As indicated, section 45 provides for the hearing de novo in the district court on the transcript of the testimony and all other proceedings on which the revocation was based. Section 45 also authorizes appeal from the court's order to this court by the person or the commissioner in accordance with the Rules of Civil Procedure.

The statutes above referred to also appear as chapter 321B, Volume 15, Iowa Code Annotated, 1964 Pocket Part.

II. Plaintiff asserts and the trial court evidently held he had a right under Amendment 6 to the Federal Constitution to consult with counsel before consenting to a chemical test or refusing. So far as pertinent this amendment provides, 'In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defence.' Section 9, Article I, of our state constitution contains an almost identical provision. Neither provision is applicable to this administrative proceeding resulting in the license revocation.

Nor is the Escobedo decision, supra, applicable. It was a criminal prosecution, involving admissibility of a confession elicited after prolonged police interrogation after the accused was denied an opportunity to...