Heddan v. Dirkswager
| Decision Date | 18 August 1983 |
| Docket Number | C3-83-198.,No. CX-82-1645,CX-82-1645 |
| Citation | 336 NW 2d 54 |
| Parties | Milo E. HEDDAN, et al., Appellants, v. Kenneth K. DIRKSWAGER, et al., Respondents, and Milo E. HEDDAN, Appellant, v. John SOPSIC, Commissioner of Public Safety, Respondent. |
| Court | Minnesota Supreme Court |
Nichols, Kruger, Starks & Carruthers and James H. Kaster, Minneapolis, for appellants.
Hubert H. Humphrey, III, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., and Norman B. Coleman, Jr., Sp. Asst. Atty. Gen., St. Paul, for respondents.
Heard, considered and decided by the court en banc.
This appeal is a consolidation of two lower court rulings. First, this is an appeal from the order for judgment of the Ramsey County District Court upholding the constitutionality of the new prehearing license revocation proceedings under Minn.Stat. § 169.123 (1982). Second, also consolidated for review is an appeal from an order of a three-judge panel affirming an order of the municipal court in the case of Milo E. Heddan v. Commissioner of Public Safety which upheld Heddan's license revocation. Heddan sought discretionary review before this court and his appeal was consolidated with the appeal from the Ramsey County District Court. We affirm.
This declaratory judgment action challenges the constitutionality of Minnesota's prehearing license revocation statute on behalf of three parties: Paul W. Lundberg, Milo E. Heddan, and Craig S. Miller.
On July 9, 1982, Milo E. Heddan was stopped in Hennepin County and charged with DWI and having a blood alcohol concentration of .10 or more. He submitted to a Breathalyzer test, which revealed a blood alcohol content of .22. At that time he was given a notice and order of revocation of his driver's license. The notice and order also carried with it a temporary driver's permit valid for a seven-day period. On July 21, 1982, Heddan applied for and received a limited license from the Department of Public Safety. His limited license permitted him to drive from the hours of 8 a.m. through 6 p.m. six days per week, Monday through Saturday.
On July 21, 1982, Heddan also filed his request for judicial review and administrative review. On that date he appeared with counsel before a driver evaluator as part of his administrative review. Heddan submitted a petition generally denying each of the elements of the revocation, but asserted his privilege against self-incrimination and refused to give a statement or fill out and sign the form distributed by the Department of Public Safety for obtaining review. On July 27, 1982, the Commissioner of Public Safety sent notice to Heddan informing him that he found sufficient basis to sustain the revocation.
On August 16, 1982, Heddan had a judicial review hearing before a municipal court referee. Counsel for Heddan moved to dismiss the revocation order on grounds that the judicial review as to be heard by a court referee and that the proceedings violated his Fifth Amendment rights. The motion was denied. The revocation of Heddan's driving privileges was sustained at that time.
On July 3, 1982, Paul William Lundberg was stopped by Minneapolis police officers and subsequently charged with DWI and having a blood alcohol concentration of .10 or more. He submitted to a Breathalyzer test which revealed a .10 blood alcohol content. At that time he was given a notice and order of revocation of his driver's license. The notice and order also carried with it a temporary driver's permit valid for a seven-day period. Lundberg applied for and was issued a limited license on July 20, 1982. He filed his request for judicial and administrative review on July 26, 1982.
Lundberg appeared for administrative review before a driver evaluator on August 4, 1982. He submitted a petition generally denying each of the elements of the revocation, but asserted his privilege against self-incrimination and refused to give a statement or fill out and sign the form distributed by the Department of Public Safety for obtaining review. Lundberg was represented by counsel, who argued that a .10 reading was inherently defective. On or about August 15, 1982, the Commissioner of Public Safety sent Lundberg notice that he found sufficient basis to sustain the revocation.
On August 4, 1982, Lundberg reapplied for and received a limited license, as the one he had obtained earlier, on July 20, 1982, was for a 30-day period and was due to expire in August. He was, the same day, reissued a limited license which permitted him to drive between the hours of 7 a.m. and 5 p.m. Monday through Friday.
On August 19, 1982, a judicial review hearing was scheduled in the Lundberg case. At that time the state requested a continuance to September 30, 1982, as the arresting officer and Breathalyzer test operator were unavailable. Over objection, the referee granted the continuance, but ordered the Department of Public Safety to reinstate Lundberg's full driving privileges effective August 19, 1982, pending the hearing. The judicial hearing was then rescheduled to September 30, 1982. After the hearing Lundberg's revocation was rescinded. The referee reasoned that the closeness of the reading, together with the failure of the police to follow the Bureau of Criminal Apprehension (BCA) recommended steps to avoid radio frequency interference, dictated in favor of the driver. He therefore held that the state failed to meet its burden of proof by a preponderance of the evidence that the test result was accurate and reliable.
On July 15, 1982, Craig Sheridan Miller was stopped by Minneapolis police and charged with DWI and having a blood alcohol concentration of .10 or more. He submitted to a Breathalyzer test, which revealed a blood alcohol content of .16. At that time he was given a notice and order of revocation of his driver's license. The notice and order carried with it a temporary driver's permit valid for a seven-day period. On July 26, 1982, Miller requested administrative and judicial review. He submitted a petition generally denying each of the elements of the revocation, but asserted his privilege against self-incrimination and refused to give a statement or fill out the form distributed by the Department of Public Safety for obtaining review. He also applied for a limited license. Miller was denied a limited license because he was not employed at that time. Present employment is a prerequisite for obtaining a limited license.
Miller appeared July 30, 1982, before a driver evaluator for administrative review and was represented by counsel. His counsel argued that the Minneapolis Police Department's failure to use the BCA 21-point checklist was a fatal defect in the revocation.
After Miller filed his request for administrative review the Department of Public Safety attempted to obtain from the Minneapolis Police Department copies of the implied consent advisory, notice and order of revocation and temporary license. Although a police incident report was forwarded to the Department of Public Safety, these other documents were not. The documents were located by the Minneapolis Police Department on August 10, 1982, which was 15 days from the request for administrative review. However, they were not received by the Department until after the 15-day period had elapsed.
On August 13, 1982, Miller's driving privileges were reinstated as a result of the findings of the administrative review. The order of the Commissioner of Public Safety revoking Miller's driving privileges was overruled because the Department of Public Safety had not received from the Minneapolis Police Department information or reports sufficient to sustain the review within the 15-day required time period.
The question presented by this appeal is whether Minn.Stat. § 169.123 (1982), which mandates suspension of a driver's license because of a refusal to take a chemical test for alcohol concentration or failure of a chemical test by registering an alcohol concentration of .10 or more, is violative of due process or the privilege against self-incrimination.
The elements of an implied consent violation are clearly defined by the statute:
Subd. 2. Implied consent; conditions; election as to type of test. (a) Any person who drives, operates or is in physical control of a motor vehicle within this state consents, subject to the provisions of this section and section 169.121, to a chemical test of his blood, breath, or urine for the purpose of determining the presence of alcohol or a controlled substance. The test shall be administered at the direction of a peace officer. The test may be required of a person when an officer has reasonable and probable grounds to believe the person was driving, operating, or in physical control of a motor vehicle in violation of section 169.121 and one of the following conditions exist: (1) the person has been lawfully placed under arrest for violation of section 169.121, or an ordinance in conformity therewith; or (2) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death; or (3) the person has refused to take the screening test provided for by section 169.121, subdivision 6; or (4) the screening test was administered and recorded an alcohol concentration of 0.10 or more. No action may be taken against the person for declining to take a direct blood test, if offered, unless an alternative test was offered.
Minn.Stat. § 169.123, subd. 2(a) (1982) (emphasis added).
The statute goes on to require that when requesting a test, the peace officer must notify the driver of the consequences of a decision to test or not test. Minn.Stat. § 169.123, subd. 2(b) (1982).
A final element in implied consent procedure is that a peace officer must afford the driver a reasonable opportunity to consult counsel before opting to test or not test. This requirement was established by this court in Prideaux v....
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