Hammeren v. North Dakota State Highway Com'r

Decision Date11 February 1982
Docket NumberNo. 10085,10085
Citation315 N.W.2d 679
PartiesDouglas Wayne HAMMEREN, Plaintiff and Appellee, v. NORTH DAKOTA STATE HIGHWAY COMMISSIONER, Defendant and Appellant. Civ.
CourtNorth Dakota Supreme Court

Darold A. Asbridge, of Baer & Asbridge, Bismarck, for plaintiff and appellee.

Robert E. Lane, Sp. Asst. Atty. Gen., N. D. State Highway Dept., Bismarck, for defendant and appellant.

VANDE WALLE, Justice.

The State Highway Commissioner appealed from a judgment reversing the Commissioner's administrative decision and restoring Douglas Wayne Hammeren's driving privileges. We reverse.

Hammeren was arrested by a Bismarck police officer for driving while under the influence of intoxicating liquor. The arresting officer read the Miranda warnings. 1 After placing Hammeren in the patrol car, the arresting officer asked Hammeren if he would submit to a Breathalyzer test. Hammeren agreed to submit to the test. Upon reaching the police station where the test was to be administered Hammeren, when asked to blow into the Breathalyzer machine, indicated that he didn't think he could take the test or that he wouldn't do it. Hammeren gave a similar answer when asked a second time if he would blow into the Breathalyzer machine. Following the report 2 to the State Highway Commissioner, Hammeren was given notice that his license to drive was being revoked for a period of six months. Pursuant to Section 39-20-05, N.D.C.C., 3 Hammeren requested an administrative hearing. The hearing, held March 10, 1981, resulted in an order of the State Highway Commissioner revoking Hammeren's driving license for a period of six months. Hammeren did not testify at the hearing. He subsequently appealed the decision of the State Highway Commissioner to the district court as permitted by Section 39-20-06, N.D.C.C. The district court reversed the decision of the State Highway Commissioner and this appeal followed.

The sole issue for review on this appeal is whether or not the failure of the arresting officer to inform Hammeren of the consequences of his refusal to take the Breathalyzer test, after having informed him of his Miranda rights, justifies Hammeren's refusal to take the test.

The district judge, in his memorandum opinion, stated:

"(W)here a person has been given his Miranda warnings, should he also be advised of the consequences of the failure to take a blood-alcohol test? The case of State v. Fields, 294 N.W.2d 404 (N.D.1980), clearly speaks to the issue without making a direct finding. Based on that case, this Court is of the opinion that such warnings are and should be necessary in all cases in which the Miranda warnings are applicable. Accordingly, and based solely upon the fact that the alternatives were not explained to Mr. Hammeren, this Court hereby reverses the decision of the North Dakota State Highway Commissioner ..."

In Fields we reversed in part an order suppressing the results of a chemical test for intoxication. We held that there was no requirement that Fields be given the Miranda warnings at the time the officer asked him if he was the driver of the automobile because Fields was not under custodial interrogation at the time. We further indicated that if a person was arrested for driving while intoxicated and was taken into custody that person must be given the Miranda warnings. Although Fields did not involve a factual instance in which the driver had refused to take the test after the Miranda warnings were given, we also said:

"However, our holding here does not mean that an individual may assert the right to remain silent when requested by an officer to submit to a blood-alcohol test, pursuant to Chapter 39-20, N.D.C.C., because the Fifth Amendment privilege against self-incrimination does not apply under these circumstances. If the person allows the test, to which he has already impliedly consented under Section 39-20-01, N.D.C.C., the results are not 'testimonial' and may be admitted into evidence. (Citations and footnotes omitted.) Thus there is no impingement of Fifth Amendment rights in requiring a person to respond to an officer's request to submit to a blood-alcohol test.

"Because an arrested person does not have the constitutional right to remain silent when asked whether or not he will submit to a blood-alcohol test, the officer, if he gives the Miranda warnings prior to asking the person to take the test, should inform the person that if he refuses to take the test, whether by silence or negative answer, his license is subject to suspension. This procedure may prevent the confusion that could result where a person is informed of his Miranda rights and then is asked whether or not he will submit to a blood test. See generally Agnew v. Hjelle, 216 N.W.2d 291 (N.D.1974)." State v. Fields, 294 N.W.2d at 410.

The Highway Commissioner argues that the above language in Fields is obiter dictum because Fields had not, in fact, refused to take the test after having been given the Miranda warnings. The Commissioner's position appears to be that it is burdensome, if not improper, for the arresting officer to inform the person arrested that, despite the Miranda warnings, if he refuses to submit to the test his license is subject to suspension. Hammeren, on the other hand, contends that the above-quoted language in Fields indicates that the person arrested must be informed of the fact his license is subject to suspension if he refuses to take the test if he has previously been given the Miranda warnings. 4 Hammeren would, in effect, raise the warning that the license is subject to suspension to a constitutional requirement such as the Miranda warnings. But in Asbridge v. North Dakota State Highway Com'r, 291 N.W.2d 739, 750 (N.D.1980), we stated:

"Proceedings under Chapter 39-20 of the North Dakota Century Code are civil in nature. The purpose of the implied consent law is to discourage individuals from driving an automobile while under the influence of intoxicants; to revoke the driving privileges of those persons who do drive while intoxicated; and to provide an efficient means of gathering reliable evidence of intoxication or nonintoxication. To further this objective, the Implied Consent Act provides for civil administrative proceedings in appropriate instances. These proceedings are separate and distinct from the criminal proceedings which may ensue from the arrest of an offending motorist. A dismissal or acquittal of the related criminal charge is irrelevant to the disposition of the revocation proceedings." (Citations omitted.)

Our decision in Fields did not refer to that portion of Section 39-20-05, N.D.C.C., which provides that whether or not the person was informed that his privilege to drive would be revoked or denied if he refused to submit to the test is not an issue in the hearing to determine the suspension of the license. We did not consider it necessary in Fields to refer to that provision because we did not require that giving the information to the person arrested was a prerequisite to the suspension of the license for refusal to take the test. 5 Neither do we believe that Section 39-20-05 prohibits the arresting officer from giving such information, and we continue the recommendation made in Fields. Our statement in Fields clearly indicates that if the information is given it may help to prevent any question of confusion which could result where a person is informed of his Miranda rights and then is asked whether or not he will submit to a blood test. In making that suggestion we cited Agnew v. Hjelle, 216 N.W.2d 291 (N.D.1974), where this court rejected Agnew's contention that "he became confused as to his rights when he was first informed that he could remain silent and had a right to consult with an attorney pursuant to the Miranda warnings and then later was told that his driver's license would be revoked if he did not submit to a test to determine the alcohol content of his blood; that therefore he did not knowingly refuse to take such a test; and that because of that the failure to comply with the Implied Consent Law was not based upon a knowledgeable refusal." 216 N.W.2d at 296.

The court rejected Agnew's argument on confusion, noting:

"In the case at bar, Agnew did not testify. There is no evidence in the...

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