In re R.P.

• Decision Date: 27 February 2008
• Docket Number: No. 20070151.,20070151.
• Citation: 2008 ND 39,745 N.W.2d 642
• Parties: In the Interest of R.P., a Child. Tyrone J. Turner, Petitioner and Appellant v. R.P., Child, A.P., Mother, J.P., Father, Respondents and Appellees.
• Court: North Dakota Supreme Court

745 N.W.2d 642

2008 ND 39

In the Interest of R.P., a Child.

Tyrone J. Turner, Petitioner and Appellant v. R.P., Child, A.P., Mother, J.P., Father, Respondents and Appellees.

No. 20070151.

Supreme Court of North Dakota.

February 27, 2008.

Tyrone J. Turner, Assistant State's Attorney, Bismarck, N.D., for petitioner and appellant.

Justin J. Vinje of Vinje Law Firm, Bismarek, N.D., for respondent and appellee.

MARING, Justice.

[¶ 1] The State appeals a juvenile court order affirming a juvenile referee's order granting the motion of R.P., a juvenile, to suppress the results of an Intoxilyzer test. R.P. was involved in an early morning traffic accident and taken into police custody because officers suspected he drove while under the influence of alcohol. R.P. contacted his mother on his cellular phone before being taken into police custody. R.P.'s mother arrived at the scene of the accident, and both of R.P.'s parents were present at the police station before the Intoxilyzer test was administered. The police would not, however, grant R.P.'s requests to talk to his parents.

[¶ 2] After being charged, R.P. moved to suppress the test results, claiming he had a statutory right to consult with his parents before submitting to chemical testing. A juvenile referee granted the motion, and the juvenile court affirmed the referee's order. On appeal, the State argues R.P. did not have a statutory right to consult with his parents regarding whether to take the chemical test. We affirm the juvenile court order and hold that a juvenile has a statutory right to a reasonable opportunity to consult with a parent, guardian, custodian, or legal counsel' before submitting to chemical testing when providing the opportunity to consult does not materially interfere with administration of the chemical test.

I

[¶ 3] At approximately 1:00 a.m. on February 3, 2007, R.P. was involved in a traffic accident. Bismarck police officer John Brocker responded to the accident. R.P. called his mother, A.P., from his cellular phone and asked her to come to the accident scene. His mother arrived near the time R.P. was placed in the rear passenger seat of a police vehicle.

[¶ 4] The juvenile referee found that the officer read the implied consent advisory to R.P. and asked R.P. to consent to an Intoxilyzer test while he was in the police vehicle. R.P. asked to speak to A.P., but was not allowed to do so at the accident scene. The officer transported R.P. to the police department. A.P. left the accident scene, drove home to pick up her husband, J.P., and drove to the police department. A.P. testified that she attempted to talk to her son both at the scene of the accident and again at the police department.

[¶ 5] A.P. and J.P. were taken to the room at the police department where R.P. was being held. The juvenile referee found they were not provided a reasonable opportunity to talk to their son out of the hearing of the police officer. The officer informed them that R.P. had no choice but to take the test or lose his driver's license. The juvenile referee found that R.P.'s parents felt they had no options and no say in the matter. The juvenile referee found that granting R.P.'s request to talk to his parents prior to administration of chemical testing would not have interfered with the timely administration of the Intoxilyzer test; more than one-half hour remained after R.P.'s chemical test was taken.

[¶ 6] The juvenile referee concluded R.P. was not represented by nor allowed to consult with his parents or legal counsel. The juvenile referee found that R.P.'s parents were not able to represent him, and at no time were they provided a reasonable opportunity to consult with him prior to administration of the Intoxilyzer test. The juvenile referee granted R.P.'s motion to suppress and the juvenile court affirmed the referee's order. The State appeals, arguing R.P. did not have a statutory right to consult with his parents regarding whether to take the Intoxilyzer test.

II

[¶ 7] Rule 52(a), N.D.R.Civ.P., instructs us to review a juvenile court's factual findings under a clearly erroneous standard. In re R.W.S., 2007 ND 37, ¶ 8, 728 N.W.2d 326. Due regard is given to the opportunity of the juvenile court to judge the credibility of the witnesses. Id. "A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law." Id.

[¶ 8] Questions of statutory interpretation are questions of law. Rojas v. Workforce Safety and Ins., 2006 ND 221, ¶ 13, 723 N.W.2d 403. Questions of law are reviewed de novo. Id. Our primary objective in statutory interpretation is to determine the legislature's intent. Id. To determine the, legislature's intent, we look at the language of the statute itself and give it its plain, ordinary, and commonly understood meaning. Overboe v. Farm Credit Services, 2001 ND 58, ¶ 9, 623 N.W.2d 372. We interpret statutes in context and harmonize statutes whenever possible to avoid conflict between them. Rojas, at ¶ 13.

III

[¶ 9] This case centers on a juvenile's right to consult with legal counsel, or a parent or legal guardian before deciding to take or refuse a chemical test. Our previous decisions regarding a juvenile's general right to consult with counsel or a parent or legal guardian establish a juvenile cannot waive the right to counsel at custodial stages of proceedings unless the child is represented by a parent, guardian, or custodian; and the mere presence of a juvenile's parent does not constitute "representation" of the juvenile. See, e.g., In re Z.C.B., 2003 ND 151, ¶ 13, 669 N.W.2d 478; In Interest of D.S., 263 N.W.2d 114, 119-20 (N.D.1978); In Interest of B.S., 496 N.W.2d 31, 33 (N.D.1993).

[¶ 10] Here, the specific issue we address is whether our present statutory scheme grants a juvenile a limited statutory right of parental involvement in deciding whether to submit to chemical testing after being taken into custody for driving while under the influence. The State argues that R.P.'s Intoxilyzer test results were improperly suppressed because a juvenile does not have a right to consult with his parents before deciding whether to consent to testing. R.P. asserts the Intoxilyzer test results were properly suppressed because police officers violated his statutory right to consult with his parents regarding whether to submit to the Intoxilyzer test.

[¶ 11] Section 39-20-01, N.D.C.C., provides that any person who operates a vehicle on a public highway is deemed to have given consent, and shall consent, to a chemical test. A driver has a limited statutory right to counsel under the implied consent statute: "An arrested person who asks to speak with an attorney before taking a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the test administration." State v. Berger, 2001 ND 44, ¶ 17, 623 N.W.2d 25. A totality of the circumstances test is used to determine the reasonableness of the opportunity. Id. The remedy available to an individual who is denied the right to consult with counsel before submitting to an Intoxilyzer test is to file a motion to suppress the results of the test. See id. at ¶ 15.

[¶ 12] Our determination that a driver has a limited right to consult with an attorney before taking a chemical test was first announced in Kuntz v. State Hwy. Com'r, 405 N.W.2d 285 (N.D.1987). This limited right to consult with an attorney is based on an interpretation of the right to counsel under N.D.C.C. § 29-05-20. Kuntz, 405 N.W.2d at 287. Section 29-05-20, N.D.C.C., provides, "[t]he accused in all cases must be taken before a magistrate without unnecessary delay, and any attorney at law entitled to practice in the courts of record of this state, at the attorney's request, may visit such person after that person's arrest." The determination that a driver has a limited right to consult with an attorney before taking a chemical test was also "underscored by constitutional due process principles." Kuntz, 405 N.W.2d at 288.

[¶ 13] Juveniles are provided a statutory right to counsel by the Uniform Juvenile Court Act. See N.D.C.C. § 27-20-26. A juvenile is recognized as a member of a special class of citizens who may require additional legal protection. See Olson v. N.D. Dep't of Transp. Dir., 523 N.W.2d 258, 260 (N.D.1994). Section 27-20-26, N.D.C.C., provides, "Counsel must be provided for a child not represented by the child's parent, guardian, or custodian at custodial, post-petition, awl informal adjustment stages of proceedings under this chapter." This statute imposes a mandatory duty to appoint counsel for a child not represented by a parent, guardian, or custodian. In Interest of D.S., 263 N.W.2d at 120. "A juvenile's right to counsel may not be waived unless the child is represented by his parent, guardian, or custodian." In re Z.C.B., 2003 ND 151, ¶ 13, 669 N.W.2d 478. A parent's presence does not alone constitute representation. In Interest of B.S., 496 N.W.2d at 33. In order for a parent's presence to constitute representation, a parent, at the very least, has to understand it is his or her role to advise the child and has to take an active role at the proceeding. See id. at 33-34.

[¶ 14] We have said that the purpose of the implied consent statute, N.D.C.C. § 39-20-01, as applied to a juvenile, "is to inform the parent or guardian why a minor is in custody and to allow the parent or guardian to be involved in the minor's decision whether to consent to take a chemical test." In re Z.C.B., 2003 ND 151, ¶ 17, 669 N.W.2d 478. In Olson v. N.D. Dep't of Transp. Dir., 523 N.W.2d 258 (N.D.1994), we held that a juvenile has a limited statutory right of parental involvement in deciding whether to submit to chemical testing. "Neither the effort to reach a parent nor the successful contact of a parent may...