Prideaux v. State, Dept. of Public Safety

• Decision Date: 08 October 1976
• Docket Number: No. 45862,45862
• Citation: 310 Minn. 405,247 N.W.2d 385
• Parties: , 97 A.L.R.3d 833 Daniel W. PRIDEAUX, Petitioner, Appellant, v. STATE of Minnesota, DEPARTMENT OF PUBLIC SAFETY, Respondent.
• Court: Minnesota Supreme Court

Page 385

247 N.W.2d 385

310 Minn. 405, 97 A.L.R.3d 833

Daniel W. PRIDEAUX, Petitioner, Appellant, v. STATE of Minnesota, DEPARTMENT OF PUBLIC SAFETY, Respondent.

No. 45862.

Supreme Court of Minnesota.

Oct. 8, 1976.

On Rehearing Nov. 5, 1976.

Syllabus by the Court

1. Any person who is required to decide whether he will submit to a chemical test of his blood-alcohol content in accordance with Minn.St. 169.123 shall have the right to consult with a lawyer of his own choosing before making that decision, provided that such a consultation does not unreasonably delay the administration of the test.

2. Such a person must be informed of this right, and police officers must assist in its vindication.

3. The right to counsel will be considered vindicated if such a person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.

Bruce C. Douglas, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Craig R. Anderson, Sp. Asst. Atty. Gen., St. Paul, for respondent.

Heard and considered en banc.

KELLY, Justice.

Appellant, Daniel W. Prideaux, appeals from the judgment of the district court sustaining the commissioner of public safety's revocation of his driver's license. ¹ We reverse.

At approximately 2:45 a.m. on the morning of January 24, 1974, appellant was stopped by a Hennepin County deputy sheriff who had observed appellant's car being driven in an erratic manner. Based on his observations before and after the stop, the officer arrested appellant for driving under the influence of an alcoholic beverage and 'Q. Now, Officer Voss, after you told Mr. Prideaux that he was under arrest and before you began reading the implied consent advisory, isn't it a fact that Mr. Prideaux made known to you his desire to communicate with an attorney?

placed him in the back of the squad car. Although the officer testified that he did not give appellant a Miranda warning, ² appellant told the officer he wanted to consult an attorney. Appellant testified, 'I just told him I wanted to see my attorney pronto.' The officer testified as follows:

'A. Yes.

'Q. And you knew that he wanted to talk to an attorney, correct?

'A. Yes.

'Q. Did you make any effort whatsoever to enable him to confer with an attorney?

'A. No.

'Q. Did you tell him that you would get him to a phone where he could confer with an attorney?

'A. No.

'Q. In fact, you made absolutely no effort whatsoever to allow him to confer with his counsel, is that correct?

'A. That's correct.'

Without making any attempt to permit appellant to confer with counsel, the officer proceeded to read to appellant the implied-consent advisory, which included a statement regarding appellant's rights and obligations under the Minnesota implied-consent law, Minn.St. 169.123, and an inquiry as to whether appellant would consent to chemical testing of his blood or breath. When asked whether he would consent to a chemical test, appellant stated, 'You may talk to my attorney,' and continued to assert a right to counsel in response to questions from the officer regarding the test. The officer made no attempt to allow appellant to call or confer with counsel, but interpreted appellant's remarks and course of conduct as a refusal to permit testing.

Testimony at trial established that appellant could have been permitted to call counsel at Methodist Hospital, the blood-testing station which would have been used, or at the sheriff's patrol office in Hopkins, the breath-testing station which would have been used. There was not testimony that the short delay, if any, in the administration of chemical tests occasioned by such a phone call would have in any way affected the validity or reliability of the test results. In fact, the record indicates that there was a 45-minute delay before appellant was picked up and removed to jail, and that there would have been a delay of at least that length of time before blood testing could have been completed. There is no suggestion in the record that even a delay of that length would render test results invalid.

Appellant's driver's license was revoked for 6 months for failure to permit chemical testing. On appeal, the district court submitted the issue of the reasonableness of appellant's refusal of chemical testing to the jury, denying appellant's motion for a directed verdict and his requests for jury instructions that he had a right to consult counsel before deciding whether to consent to chemical testing. The jury, by a five-sixths verdict, found that appellant did not have reasonable grounds to refuse testing. The district court ordered judgment sustaining revocation of appellant's license, and appellant appeals from the judgment entered.

CONSTITUTIONAL RIGHT TO COUNSEL BEFORE DECIDING WHETHER TO CONSENT TO CHEMICAL TESTING

Appellant argues that he had a constitutional right to confer with counsel before he could be required to respond to a request to permit chemical testing, where such a conference While driver's license revocation proceedings have been labeled 'civil' in nature, ostensibly because they are conducted by the commissioner of public safety in administrative proceedings and reviewed in the courts as such, we do not view the 'civil' label as dispositive in view of the important constitutional rights which may be involved. First, driver's license revocation for failure to submit to chemical testing is necessarily and inextricably intertwined with an undeniably criminal proceeding--namely, prosecution for driving while under the influence of an alcoholic beverage. The severe penalty for an unreasonable refusal to permit testing, i.e., mandatory 6-month revocation of a driver's license, may in many cases impose a greater burden on the driver than conviction of the crime of driving under the influence. ⁵ The obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into 'consenting' to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense. State, Dept. of Highways, v. Schlief, 289 Minn. 461, 463, 185 N.W.2d 274, 275 (1971). The license revocation proceeding thus becomes an arm of the prosecutor in his attempt to gather evidence against the accused for use in criminal prosecution. Moreover, it is used as a means of obtaining evidence At the time of arrest or detention for suspicion Second, revocation of a driver's license for 6 months may have an impact on the ordinary driver at least as devastating as the traditional criminal sanctions of a fine and imprisonment. A driver's license is no longer a luxury or mere privilege to most citizens, but a prerequisite to earning a livelihood. As the United States Supreme Court stated in Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90, 94 (1971):

                would not unduly burden the arresting officer or substantially delay chemical testing.  In asserting such a right, he asks us to overrule our decision in State v. Palmer, 291 Minn. 302, 191 N.W.2d 188 (1971), in which we held that a driver does not have a constitutional right to consult with counsel before deciding whether to accede to an officer's request to submit to a chemical test.  With virtual unanimity, state courts outside Minnesota have denied such a right.  3 The bases of all these holdings, including our decision in Palmer, have been that driver's license revocation is a civil proceeding and, as a corollary, that the taking of a chemical [310 Minn. 409] test is not a 'critical stage' in a criminal prosecution.  4 Upon reflection, we have some doubt as to the continuing vitality of these cases
                Of driving under the influence.  Only After the driver makes his decision regarding the test does the proceeding divide clearly into its civil and criminal aspects--civil, if testing is refused; criminal, if testing is consented to; or both, if testing is refused, but the prosecutor nonetheless has sufficient evidence to obtain a conviction and elects to do so.  Under these circumstances, we cannot see why evidence gathering for prosecution for driving under the influence using implied-consent procedures is any less subject to constitutional scrutiny than other evidence-gathering procedures such as searches, use of informers, or custodial interrogation
                

'* * * Once (driver's) licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a 'right' or a 'privilege.' Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (disqualification for unemployment compensation); Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956) (discharge from public employment); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (denial of a tax exemption); Goldberg v. Kelly, supra (withdrawal of welfare benefits). See also Londoner v. Denver, 210 U.S. 373, 385--386, 28 S.Ct. 708, 713--714, 52 L.Ed. 1103 (1908); Goldsmith v. Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926); Opp Cotton Mills v. Administrator, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624 (1941).'

We cannot allow a 'civil' label to obscure the quasi-criminal consequences of revocation to the ordinary citizen.

Third, the decision whether to take or refuse chemical...