Roesing v. Dir. Revenue

• Decision Date: 30 April 2019
• Docket Number: No. SC 97165,SC 97165
• Parties: Jereme ROESING, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Supreme Court

573 S.W.3d 634

Jereme ROESING, Appellant,

v.DIRECTOR OF REVENUE, Respondent.

No. SC 97165

Supreme Court of Missouri, en banc.

Opinion issued April 30, 2019

Mary R. Russell, Judge

Following Jereme Roesing’s refusal to submit to a chemical test, the director of revenue revoked his driving privileges for one year pursuant to section 577.041.1.¹ Roesing filed a petition for review of his driver’s license revocation with the circuit court, which entered a judgment sustaining the revocation. He appealed, arguing that his refusal to consent to a chemical test was not voluntary and unequivocal under section 577.041.1 because law enforcement deprived him of his statutory right to counsel by listening to and making audio and video recordings of his end of the conversation with his attorney. Because law enforcement deprived Roesing of his right to confer privately with his attorney, and the director failed to show that Roesing was not prejudiced, his refusal to consent to the chemical test was not voluntary and unequivocal under section 577.041. The circuit court erred in sustaining the revocation of Roesing’s driving privileges. The judgment is reversed, and the case is remanded.

Background

Roesing was arrested for driving while intoxicated and transported to the police department, where an officer read him the implied consent law.² Roesing requested to call an attorney and was successful in contacting one. Approximately one minute into the call, Roesing handed the telephone to the officer, and the attorney told the officer he wished to speak with Roesing in private. The officer replied that it might be possible to arrange for the conversation to occur in another room, but it would be audio and video recorded. The officer returned the telephone to Roesing. Roesing’s conversation with the attorney continued in the officer’s presence and was audio and video recorded. The officer stood approximately three feet from Roesing and could hear Roesing’s end of the conversation. After 20 minutes had passed and the conversation had ended, the officer again read Roesing the implied consent law, and Roesing refused to submit to a chemical test.

The director revoked Roesing’s driving privileges for one year pursuant to section 577.041.1. Roesing filed a petition with the circuit court for review of his driver’s license revocation pursuant to section 577.041.4.³ Following an evidentiary hearing, the circuit court entered judgment sustaining the revocation of Roesing’s driving privileges. Roesing appealed.⁴

Analysis

This case presents the question whether the right to attempt to contact an attorney pursuant to section 577.041.1 includes the right to speak to the attorney privately, should the attorney be contacted successfully.

Section 577.041.1 provides, in pertinent part:

If a person when requested to submit to any test allowed ... requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney. If upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal. In this event, the officer shall, on behalf of the director of revenue, serve the notice of license revocation personally upon the person and shall take possession of any license to operate a motor vehicle.

(Emphasis added). Section 577.041.1 provides a driver who wishes to speak with an attorney with the right, upon request, to attempt to contact a lawyer during a 20-minute period. Norris v. Dir. of Revenue , 304 S.W.3d 724, 726 (Mo. banc 2010) ; see also Riley v. Dir. of Revenue , 378 S.W.3d 432, 438 (Mo. App. 2012) ("[T]he driver is entitled to only twenty minutes to attempt to contact and speak to a lawyer." (Emphasis added) (quoting Akers v. Dir. of Revenue , 193 S.W.3d 325, 329 (Mo. App. 2006) )).

Whether section 577.041.1’s right "to attempt to contact an attorney" is violated when the driver successfully contacts an attorney, but is then denied the right to speak with the attorney privately , is an issue of first impression for this Court. Legal questions of statutory interpretation are reviewed de novo. Norris , 304 S.W.3d at 725.

Section 577.041.1’s purpose is "to provide the driver with a reasonable opportunity to contact an attorney to make an informed decision as to whether to submit to a chemical test." Id. at 726-27. Any refusal to take the test must be "voluntary and unequivocal." White v. Dir. of Revenue , 255 S.W.3d 571, 580 (Mo. App. 2008). When a driver conditions a refusal on consulting with an attorney, but is not given a reasonable opportunity to do so , the driver is not deemed to have refused to submit to a chemical test for purposes of license revocation. Kotar v. Dir. of Revenue , 169 S.W.3d 921, 925 (Mo. App. 2005).

Roesing argues he was not given a reasonable opportunity to consult with counsel to make an informed decision whether to submit to a chemical test because law enforcement listened to and recorded his conversation with his attorney. Roesing asserts he had a statutory right to speak with his attorney privately pursuant to section 577.041.1.⁵ In response, the director argues section 577.041.1 contains only the right to attempt to contact an attorney and does not guarantee an opportunity to speak with an attorney, much less the right to a private consultation. According to the director, section 577.041.1’s purpose is satisfied so long as the driver is provided with 20 minutes to attempt to contact an attorney.

But the director’s interpretation contradicts section 577.041.1’s purpose by hampering the driver’s ability to have meaningful contact with an attorney for advice in making an informed decision of whether to submit to a chemical test.⁶ A driver who successfully contacts an attorney is afforded a reasonable opportunity to contact an attorney to make an informed decision only if the driver is able to candidly disclose all necessary information to receive appropriate advice from the attorney.⁷ A driver is not free to speak candidly with his attorney regarding potentially incriminating evidence when there is a possibility that anything said can be shared with the prosecuting attorney who will decide whether to bring criminal charges. The legislature could not have logically intended that section 577.041.1 requires nothing more than allowing a driver 20 minutes to attempt to contact an attorney. For a driver to have meaningful contact with an attorney, the conversation must be private.

This interpretation is further supported by the courts of other states, which have emphasized that privacy is inherent in a driver’s right to consult with counsel to make an informed decision regarding whether to submit to a chemical test. See Bickler v. N.D. State Highway Comm'r , 423 N.W.2d 146, 146 (N.D. 1988) ("When an arrestee consults with counsel, he must be allowed to do so in a meaningful way. A consultation would be meaningless if relevant information could not be communicated without being overheard. There is a right to privacy inherent in the right to consult with counsel."); Holland , 711 P.2d at 594 (Ariz. 1985) ("[I]t is universally accepted that effective representation is not possible without the right of a defendant to confer in private with his counsel."); Farrell v. Municipality of Anchorage , 682 P.2d 1128, 1130 (Alaska Ct. App. 1984) ("[T]he statutory right to contact and consult counsel requires reasonable efforts to assure that confidential communications will not be overheard...."); People v. Moffitt , 50 Misc.3d 803, 19 N.Y.S.3d 713, 719 (N.Y. Crim. Ct. 2015) ("Once afforded, if the right to counsel is to have any meaning, the communication between lawyer and client must be private.").

Privacy is inherent in a driver’s statutory right to counsel. To interpret section 577.041.1 otherwise would contradict section 577.041.1’s purpose of providing drivers with a reasonable opportunity to have a meaningful contact with an attorney in order to decide whether to submit to a chemical test and, accordingly, would create absurd results.

In addition, section 577.041.1’s right to speak privately with an attorney does not interfere with the State’s important goal of obtaining a timely, accurate, and valid chemical test. See Rogers v. Dir. of Revenue , 184 S.W.3d 137, 144 (Mo. App. 2006) ("When a driver has been arrested for driving while intoxicated, the completion in a timely fashion of a chemical test to determine the driver’s blood alcohol content is imperative."). A driver’s right to privacy in speaking with his attorney is consistent with the Code of State Regulations' required 15-minute observation period prior to the administration of chemical testing. During the 15-minute observation period "the operator shall remain close enough to a subject to reasonably ensure, using the senses of sight, hearing, or smell , that a test subject does not smoke, vomit, or have any oral intake.... Direct observation is not necessary to ensure the validity or accuracy of the test result." 19 CSR 25-30.011(2)(H) (emphasis added).

Accordingly, an officer need not stand close enough to hear a driver’s conversation to ensure the validity or accuracy of test results. Because 19 CSR 25-30.011(2)(H) requires only a 15-minute observation period, it was not necessary for the officer to be near Roesing during the first five minutes of the 20-minute time period after Roesing was read the implied consent law.⁸ After the first five minutes passed, the officer should have positioned himself in a way that allowed him to visually observe Roesing to ensure the validity of Roesing’s test results in accordance with 19 CSR 25-30.011(2)(H) while also ensuring Roesing’s conversation remained private in accordance with section 577.041.1.⁹

Section 600.048.3 further compels the conclusion that privacy is inherent in section 577.041.1. In interpreting the meaning of section 577.041.1, the primary rule of statutory interpretation is to give effect to legislative...