Heles v. State of SD

• Decision Date: 21 January 1982
• Docket Number: Civ. No. 79-4077.
• Citation: 530 F. Supp. 646
• Parties: Patrick HELES, Kent Braunsreither, Plaintiffs, v. The STATE OF SOUTH DAKOTA, Fred Zuercher, Secretary, South Dakota Department of Public Safety and Richard Meleen, Director of Driver Improvement Division, South Dakota Department of Public Safety, Defendants.
• Court: U.S. District Court — District of South Dakota

530 F. Supp. 646

Patrick HELES, Kent Braunsreither, Plaintiffs, v. The STATE OF SOUTH DAKOTA, Fred Zuercher, Secretary, South Dakota Department of Public Safety and Richard Meleen, Director of Driver Improvement Division, South Dakota Department of Public Safety, Defendants.

Civ. No. 79-4077.

United States District Court, D. South Dakota, S. D.

January 21, 1982.

COPYRIGHT MATERIAL OMITTED

John P. Blackburn of Yankton, S. D., for plaintiffs;

Clair B. Ledbetter, Asst. Atty. Gen., Pierre, S. D., for defendants.

MEMORANDUM DECISION

NICHOL, Senior District Judge.

This case brought by Patrick Heles (Heles) and Kent Braunsreither (Braunsreither) challenges the procedures employed in South Dakota when a person is arrested for DWI, informed of his or her rights under the Implied Consent Statute¹, and the person is requested to submit to a chemical sobriety test. More specifically the plaintiffs allege that it is an unconstitutional denial of Fifth, Sixth and Fourteenth Amendment rights for the arresting officer to refuse to allow the arrested person to consult with an attorney prior to deciding whether to take a chemical alcohol test. The plaintiffs further allege that it is an unconstitutional denial of these rights when the request to contact an attorney is interpreted as a constructive refusal to take the test.

The Court has jurisdiction in this case under 28 U.S.C. section 1343. The action is submitted to the Court entirely on briefs for a decision on the constitutional claims.

On December 9, 1975, an officer of the South Dakota Highway Patrol observed Heles operating his vehicle in an erratic, swerving manner and failing to dim his headlights for oncoming traffic. The officer stopped Heles. After detecting an odor of alcohol, the officer conducted field sobriety tests, which Heles failed to execute satisfactorily. The officer then arrested Heles for driving while intoxicated and read Heles the South Dakota Implied Consent Warning. When asked if he would consent to a chemical breath test, Heles sought advice from the officer. The officer responded by again reading the implied consent warning, and Heles again asked the officer for advice. Heles was then transported to the police station, where he was again asked if he would take the breathalyzer test. After the repeated requests for advice from the officer were ignored, Heles insisted on calling his attorney. Heles was advised that his actions would be taken as a refusal to submit to the chemical breath test and he was read the Miranda Warning. Approximately one hour after Heles was arrested, he had a telephone conversation with his attorney. During that telephone conversation the attorney talked with the officer and twice requested that the officer allow Heles to take the breathalyzer test. The officer denied the requests.

On January 8, 1976, Heles received notice from the Department of Public Safety of intent to revoke his license. Heles requested an administrative hearing. The hearing was held and it was ordered that Heles driver's license be revoked for a period of one year. The circuit court held a trial de novo and affirmed the order of revocation. On December 26, 1978, the South Dakota Supreme Court affirmed the judgment of the circuit court, holding that "the arrested driver has no legal or constitutional right to consult counsel before deciding, and that a request to delay the test for that purpose is, in law, a refusal of the test by the driver." State v. Heles, 272 N.W.2d 808, 810 (S.D. 1978), quoting Peterson v. State, 261 N.W.2d 405, 410 (S.D.1977).

Kent Braunesreither was arrested at midnight on February 18, 1977, by the same South Dakota Highway Patrol officer that had fourteen months earlier arrested Heles. Braunesreither was read the implied consent warning and asked if he wished to submit to the chemical test. Braunesreither did not respond. He was then taken to the Yankton Police Station and the implied consent warning was again read. Braunesreither asked permission to call his attorney for advice. The officer granted Braunesreither's request; however, Braunesreither was unable to reach his attorney even after several attempts. The arresting officer at approximately 1:30 a. m. again requested that Braunesreither take the breathalyzer test, and advised him that if he did not receive a yes or no answer the officer would consider the response a refusal to submit to the test. Braunesreither again stated that he wanted to talk with his attorney. As the officer was writing out the refusal, Braunesreither decided to take the test. The officer, however, was no longer willing to allow Braunesreither to take the test.

Braunesreither's license was revoked on March 3, 1977. He appealed, requesting an administrative hearing. The license revocation was upheld following the administrative hearing. A trial de novo was then held in the circuit court and again the order for revocation was upheld. The South Dakota Supreme Court affirmed Braunesreither's license revocation on March 1, 1979, holding that "Braunesreither had only one choice, whether or not to take the test; he did not have the right to consult with counsel before deciding." State v. Braunesreither, 276 N.W.2d 139, 140 (S.D.1979).

Braunesreither and Heles then joined in this action commenced in federal court, alleging constitutional violations attendant to their arrest for DWI. The action is presented to the Court for a declaratory judgment on the constitutional issue.²

The right to consult an attorney prior to submitting to a chemical sobriety test has been repeatedly addressed by state supreme courts across the country. The courts holding that a person does not have a constitutional or legal right to counsel prior to testing also generally hold that the request to consult an attorney prior to testing constitutes a refusal. Fjeldsted v. Cox, 611 P.2d 382 (Utah 1980); Seders v. Powell, 298 N.C. 453, 259 S.E.2d 544 (1979); State v. Braunesreither, 276 N.W.2d 139 (S.D.1979); Brewer v. State Dept. of Motor Vehicles, 23 Wash.App. 412, 595 P.2d 949 (1979); State v. Heles, 279 N.W.2d 808 (S.D.1978); Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351 (1969); Cf. Sedlacek v. Pearson, 204 Neb. 625, 284 N.W.2d 556 (1979).

In denying the right to counsel, these courts reason that the right to counsel is limited to criminal prosecutions. The proceeding to determine or review revocation of a driver's license under the implied consent statute is a civil and administrative proceeding, separate and distinct from the criminal proceeding for driving while under the influence of intoxicating liquor or drugs. These courts hold that the right to counsel does not apply to civil and administrative proceedings. Blow v. Commissioner of Motor Vehicles, supra; Seders v. Powell, 298 N.C. 453, 259 S.E.2d 544, 550 (1979); Agnew v. Hjelle, 216 N.W.2d 291, 298 (N.D. 1974); Gottschalk v. Sueppel, 258 Iowa 1173, 140 N.W.2d 866 (1966); Finocchairo v. Kelly, 11 N.Y.2d 58, 226 N.Y.S.2d 403, 181 N.E.2d 427, cert. denied 370 U.S. 912, 82 S.Ct. 1259, 8 L.Ed.2d 405 (1966). The following reasoning of the South Dakota Supreme Court exemplifies that employed by other state courts: "The implied consent statute does not sanction a qualified ... or ... conditional refusal. The statute requires a licensee to make a choice. In our opinion he is not entitled to the assistance of counsel in making that choice. He either consents to a test with a chance that an unfavorable result may aid in his conviction or he refuses and loses his driving privileges for one year." Blow v. Commissioner of Motor Vehicles, supra 83 S.D. at 633, 164 N.W.2d at 354.

The courts in a growing number of jurisdictions recognize at least a limited right to communicate with counsel prior to making the decision to submit to chemical testing. The right to communicate with counsel, however, is based upon state statute or court rule rather than a Sixth Amendment right to counsel. Fuller v. State Dept. of Transp., 275 N.W.2d 410 (Iowa 1979) (held that the state is required to permit arrested persons, on their request, the right to consult counsel before deciding whether to submit to a chemical sobriety test pursuant to a statute); Seders v. Powell, 39 N.C.App. 491, 250 S.E.2d 690, aff'd 298 N.C. 453, 259 S.E.2d 544 (1979) (the motorist does not have a constitutional right to the assistance of counsel prior to deciding whether to take the test; the right to counsel is purely statutory); Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976) (held a limited right to counsel based on the implied consent statute itself and general statutory provisions governing right and access to counsel); Gooch v. Spradling, 523 S.W.2d 861 (Mo.App.1975) (court rule specifically requires that a person arrested and held in custody shall be permitted to consult with counsel); McNulty v. Curry, 42 Ohio St.2d 341, 71 Ohio Ops.2d 317, 328 N.E.2d 198 (1975) (state statute allows a person to communicate with an attorney following arrest or detention); Narten v. Curry, 33 Ohio Misc. 94, 62 Ohio Ops.2d 121, 291 N.E.2d 799 (1972) (a person arrested for DWI is entitled to the right of counsel equally with those charged with major felonies or other criminal acts); People v. Gursey, 22 N.Y.2d 224, 292 N.Y.S.2d 416, 239 N.E.2d 351 (1968).

The constitutional issue presented by the plaintiffs appears to be a case of first impression in the federal courts. The jurisdictions which have recognized a limited right to counsel have based their holding on either a state statute or court rule. This Court has located only one case³ which has unequivocally stated that a person has a constitutionally founded right to consult with counsel prior to deciding to take or refuse a chemical sobriety test.

The civil and criminal nature of proceedings initiated against the person suspected of driving while under the influence of liquor or drugs is inextricably intertwined....