Schroeder v. State, Dept. of Motor Vehicles and Public Safety

• Decision Date: 25 April 1989
• Docket Number: No. 18710,18710
• Citation: 105 Nev. 179,772 P.2d 1278
• Parties: Charles Alan SCHROEDER, Appellant, v. The STATE of Nevada, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY, Respondent.
• Court: Nevada Supreme Court

Page 1278

772 P.2d 1278

105 Nev. 179

Charles Alan SCHROEDER, Appellant, v. The STATE of Nevada, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY, Respondent.

No. 18710.

Supreme Court of Nevada.

April 25, 1989.

[105 Nev. 180] Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Carson City, Neil H. Friedman, Deputy Atty. Gen., Las Vegas, for respondent.

OPINION

PER CURIAM:

After Nevada State Trooper Donald Fazio arrested him for driving under the influence of alcohol, appellant Charles Schroeder refused to submit to a chemical sobriety test for at least forty minutes. Schroeder told the arresting officer that he would not take any test until he spoke with his attorney. After the trooper left Schroeder in the Clark County jail and returned to his patrol, Schroeder changed his mind and requested a test. The police officer present refused to administer the test to Schroeder, and pursuant to Nevada's implied consent law, the department of motor vehicles revoked his driving privileges. A hearing officer affirmed the department's decision, and the district court denied Schroeder's petition for judicial review.

Schroeder argues that the arresting officer confused him as to his right to consult counsel before submitting to a chemical sobriety test. Therefore, he contends that he did not actually refuse to take the required test. Moreover, Schroeder claims that his eventual consent to take the test vitiated his prior refusals. Finally, Schroeder argues that the State violated his due process right to collect evidence by preventing him from obtaining an independently administered chemical sobriety test. None of Schroeder's contentions have merit.

Schroeder argues that because of Fazio's "confusing" rendition of the implied consent law and the Miranda warnings, he believed that he had a right to consult his attorney before submitting to a chemical sobriety test. Therefore, under these circumstances, Schroeder claims that equity and good conscience demand that the State not revoke his license. We disagree.

This court construes Nevada's implied consent law liberally in order to further the legislative policy of removing intoxicated drivers from our highways. Davis v. State, 99 Nev. 25, 27, 656 P.2d 855, 856 (1983). In the instant case, the admonition regarding submission to a chemical test which Fazio read to Schroeder was a summary of the provisions contained within NRS 484.382--484.384. Nothing in the statutes directs law enforcement officers to provide drunk driving suspects with a proviso on the absence of a right to consult an attorney prior to taking a test. Therefore, Trooper Fazio gave Schroeder a reasonable version of his rights and obligations under the implied consent law.

Moreover, at Schroeder's hearing, Trooper Fazio testified that after appellant failed most of the field sobriety tests, he read the implied consent law warnings to Schroeder. Schroeder responded that he wanted to speak with an attorney before submitting to a chemical sobriety test. Because the right to counsel does not attach in implied consent situations, any response conditioned upon obtaining the advice of an attorney amounts to a refusal to take the test. McCharles v. State, DMV, 99 Nev. 831, 834, 673 P.2d 488, 490 (1983). Only after that exchange did Fazio inform Schroeder of his Miranda rights. Thus, the evidence indicates that Schroeder's refusal to take a test was not the result of any commingling of the implied consent law warnings and a recitation of Schroeder's Miranda rights.

Furthermore, once at the Clark County jail, Fazio specifically explained to Schroeder that in Nevada, implied consent "has nothing to do with seeing an attorney," but rather that "it was for the revocation of his driving privilege." Schroeder again refused to submit to a test, stating that he wanted to speak with a lawyer. Therefore, Fazio effectively resolved any possible confusion that may have existed in Schroeder's mind regarding his right to consult an attorney before taking a chemical sobriety test. Nevertheless, for a second time, Schroeder refused the test. Accordingly, the record does not support Schroeder's claim that he was confused as to his right to consult his attorney prior to submitting to the test.

After Trooper Fazio returned to his patrol, Schroeder changed his mind and told another officer on duty in the jail that he wanted to take a chemical sobriety test. However, the officer refused to give the test to Schroeder. Schroeder argues that his eventual consent to a blood-alcohol test constituted a...