Kuntz v. State Highway Com'r, 11273

Decision Date29 April 1987
Docket NumberNo. 11273,11273
Citation405 N.W.2d 285
PartiesJeffrey Michael KUNTZ, Appellant, v. STATE HIGHWAY COMMISSIONER, Appellee. Civ.
CourtNorth Dakota Supreme Court

Pulkrabek & Tuntland, Mandan, for appellant; argued by Thomas M. tuntland.

Steven F. Lamb, Asst. Atty. Gen., State Highway Dept., Legal Div., Bismarck, for appellee.

MESCHKE, Justice.

Jeffrey M. Kuntz appeals from a district court judgment upholding the Highway Commissioner's decision to revoke his driver's license for two years, under Secs. 39-20-04 and 39-20-05, N.D.C.C., for refusing to take an intoxilyzer test. We hold that a person arrested for driving under the influence of intoxicating liquor has a qualified statutory right to consult with an attorney before deciding whether or not to submit to a chemical test. We conclude that Kuntz was not allowed a reasonable opportunity to do so, at his request, and that, therefore, his failure to take the test was not a refusal. 1 Accordingly, we reverse.

The facts of this case are important to our disposition of the legal issue and are not in dispute. Mercer County Deputy Sheriff, Kerry Kessler, stopped Kuntz after observing him drive his motor vehicle erratically. Kessler detected "a moderate odor of alcoholic beverage about [Kuntz's] breath," and he observed Kuntz unsatisfactorily perform a series of roadside sobriety tests. Kessler then informed Kuntz that he was "under arrest for driving while under the influence of alcohol and/or drugs." Kessler immediately advised Kuntz of his constitutional rights, specifically that he "had the right to remain silent, that anything he said could and would be used against him in a court of law, that he had the right to an attorney; if he could not afford one, one would be appointed for him."

Deputy Kessler took Kuntz to the Mercer County Jail in Stanton. There, in the booking room, subsequent proceedings were videotaped. After some preliminaries, Deputy Kessler informed Kuntz that his refusal to take an intoxilyzer test would result in automatic revocation of his driver's license. A dialogue between Kuntz and Kessler followed:

Officer: "Do you understand that? Will you take the test?"

[13 second pause]

Kuntz: "Can't I call my lawyer?"

Officer: "Yes or no. Will you take the test or not? If you take it, the most you can lose your license for is 91 days. If you refuse to take it, you automatically lose your license for a year, 364 days. There is no opportunity to get a work permit or nothing. It's up to you."

[16 second pause]

Officer: "Will you take the test?"

Kuntz: "Don't I get to call my lawyer first?"

Officer: "As soon as we're done with the test and with joint procedure, you can [call] whoever you like."

[18 second pause]

Kuntz: "Why can't I call him before?"

Officer: "That's not the way we do our typical procedures."

Kuntz: "I don't really know--does it really matter?"

Officer: "What's that?"

Kuntz: "Well--does it really matter?"

Officer: "Other than our normal procedures--no."

Kuntz: "Well then I'd like to call my lawyer."

Officer: "... if you take the test ... cause if you refuse to take this test you automatically lose your license for a period of one year. If you take it, the most you can lose your license for is 91 days. Three months--and after the first month, you can apply for a work permit. But if you refuse to take the test you can apply all you want for a work permit and you won't be granted one. The Judge won't grant you a work permit if you refuse to take the test."

Kuntz: "I still should be able to call my lawyer, though, shouldn't I?"

Officer: "As soon as we're done with the test and the proper procedure, you can call your lawyer or whoever you want."

Kuntz: "What does it matter if I call him now?"

Officer: "Yes or no. Are you going to take the test?"

Kuntz continued to verbalize his request to call his lawyer before deciding whether to take the test and repeatedly questioned Officer Kessler why he was not allowed to call his lawyer before, rather than after, taking the test. Kuntz did not take the intoxilyzer test, and as a result the Commissioner revoked his driver's license for a period of two years. Kuntz appealed the Commissioner's decision to the district court which upheld the license revocation.

On appeal Kuntz asserts that he had a statutory right, under Sec. 29-05-20, N.D.C.C., to call an attorney before deciding to take the intoxilyzer test:

"29-05-20. Delay after arrest prohibited--Attorney.-- The 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 his request, may visit such person after his arrest."

We agree with the rationale of those jurisdictions which have interpreted their right-to-counsel statutes as entitling a person arrested for driving under the influence to a reasonable opportunity to consult with an attorney before deciding to take a chemical test. See State v. Vietor, 261 N.W.2d 828 (Iowa 1978); Prideaux v. State Dept. of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976). Although the statutory language construed in those cases is not identical with the language of Sec. 29-05-20, N.D.C.C., we believe the import of those statutes is similar to ours, and the decisions applying those statutes are therefore instrumental and persuasive to our interpretation of Sec. 29-05-20, N.D.C.C., and its application to this case.

In 1976, Minnesota law, Section 481.10, Minn.Stat., provided that a restrained person shall be entitled to consult with an attorney "as soon as practicable, and before other proceedings shall be had." In construing that provision the Minnesota Supreme Court in Prideaux, supra, concluded:

"Although the Minnesota statute does not explicitly mention telephone calls and was drafted before automobiles were commonly used, it must be interpreted in accordance with the fundamental nature of the right it affords and the technological advance of our society. The importance of a driver's license and the binding decisions which must be made by the driver asked to submit to chemical testing make the chemical-testing process a 'proceeding' within the meaning of Sec. 481.10 before which consultation with counsel is to be accorded." 247 N.W.2d at 393.

The Minnesota Supreme Court held that any person who is required to decide whether to take a chemical test has the right to consult with an attorney before making that decision "provided that such a consultation does not unreasonably delay the administration of the test. ... If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel." 2

Section 755.17 of the Iowa Code provides that an arrested person shall be allowed to consult with an attorney "before preliminary hearing and arraignment ... without unnecessary delay after arrival at the place of detention." The Iowa Supreme Court in State v. Vietor, supra, held that this provision entitles an arrested person to have a reasonable opportunity, if requested, to speak with an attorney before being required to decide to take a chemical test. In so concluding the court described the "strange circumstances," substantially identical to those in this case, which underlie the arrested person's desire and need to consult an attorney in such a situation:

"Peace officers find themselves in an anomalous position when attempting to implement the provisions of the implied consent law after making an OMVUI arrest. The license revocation which follows a refusal to submit to chemical testing is an administrative proceeding, to which, as already pointed out, the Miranda protections do not apply.... But when a chemical test is requested, the peace officer--and most often the arrestee as well--knows the results will be vital evidence in a later criminal trial.

"This leads to the strange circumstances facing us here. Upon Irvin's arrest, the officer advised him of his constitutional rights under Miranda. One of these is the right to counsel. Yet almost immediately the officer read to Irvin a statement from the implied consent form that he was not entitled to counsel.

"It is hard enough for us to reconcile these seemingly contradictory statements. It must be impossible to do so for one facing the necessity of making an immediate decision which later may be used to convict him of a crime." [Citation omitted.] 261 N.W.2d at 830-831.

In the later case of Fuller v. State, Dept. of Transportation, 275 N.W.2d 410 (Iowa 1979), the Iowa Supreme Court applied Vietor, supra, to a license revocation proceeding:

"The rationale of Vietor was that a defendant could not be required to make his election until he had consulted counsel. Therefore, if a defendant is denied this statutory right on request, he cannot be held to have refused a chemical test.

"If there was no refusal, the premise upon which the state may revoke a license under Sec. 321B.7 is missing." 275 N.W.2d at 411.

Section 29-05-20, N.D.C.C., gives a person the right to visit with an attorney upon request "after his arrest." Officer Kessler's request of Kuntz to take the intoxilyzer test occurred after Kuntz's arrest and after Kuntz had been informed that he had a right to have an attorney. At the time he was asked to submit to the intoxilyzer test Kuntz had a statutory right to visit with an attorney. Kuntz was entitled to have a reasonable opportunity to consult with an attorney before deciding whether to take the intoxilyzer test, so long as that effort did not unreasonably interfere with the testing procedure under Chapter 39-20, N.D.C.C. Kuntz's exercise of that right by requesting to call his attorney before taking the test did not constitute a refusal for purposes of revoking his license under Chapter 39-20, N.D.C.C. See Moore v. State, Motor Vehicles Div., Etc., 293 Or. 715, 652 P.2d 794 (1982); Fuller, supra; Siegwald v. Curry, 40 Ohio App.2d 313, 319 N.E.2d 381...

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