Spradling v. Deimeke
| Decision Date | 08 September 1975 |
| Docket Number | No. 1,No. 58782,58782,1 |
| Citation | 528 S.W.2d 759 |
| Parties | James R. SPRADLING, Director of Revenue, Respondent, v. Joseph F. DEIMEKE, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.
Jerome W. Seigfreid and Louis J. Leonatti, Edwards, Seigfreid, Runge & Hodge, Inc., Mexico, for appellant.
This is an appeal by Joseph F. Deimeke from an order of the circuit court denying his application for reinstatement of his Missouri automobile driver's permit. The case involves the questions of (1) whether a person who has been arrested for driving while intoxicated and requested to take a breathalyzer test pursuant to § 564.441, RSMo 1969, has a right to have counsel present at the time the test is given under Amendments VI and XIV, U.S. Constitution; (2) whether the request of appellant to have counsel prespent before he took the breathalyzer test constituted a refusal under § 564.444 because the Miranda warnings, as read to appellant, arguably indicated that he may have such a right; (3) whether, in this case, the failure of appellant to submit to the test constituted a refusal to take the test under § 564.444; and (4) whether § 564.444 violates the due process clause of Amendment XIV to the United States Constitution for vagueness as to what constitutes a 'refusal' under § 564.444.
Appellant asserts the following grounds as the basis for jurisdiction of this appeal in this court: (a) a state officer is a party (the director of revenue); (b) the case involves the construction of a revenue law (§ 564.444); (c) the case involves the question of whether § 564.444 is void for vagueness because of a lack of statutory standards as to what constitutes a refusal in violation of the due process clauses of the 1945 Missouri Constitution and the United States Constitution, Amendment XIV; (d) the case involves the question of whether a person who is arrested for driving while intoxicated has the constitutional right to the presence of an attorney while the breathalyzer test is performed; and (e) that the reading of the 'Miranda' warnings to appellant by a state highway patrolman, which allegedly was understood by appellant to include the right to have counsel present at the breathalyzer test, entitled appellant to condition his consent to the test upon the presence of counsel under the United States Constitution, Amendments V, VI, and XIV.
As to ground [a], this appeal was taken after January 1, 1972, the effective date of the amendment to Art. V, § 3, Mo.Const.1945, and the fact that a state officer is a party does not vest original appellate jurisdiction in this court. Additionally, even prior to that amendment, this court did not have original appellate jurisdiction in cases where the state officer was not a participating or contesting litigant but merely a passive participant. Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969); In re Spencer, 439 S.W.2d 8 (Mo.App.1969).
As to ground [b], § 564.444 is not a revenue law of this state. See Laws of Mo.1965, pp. 670--672, for the title to and the provisions of this act.
The court accepts jurisdiction under grounds [c], (d), and (e), as, in toto, they involve the construction of the U.S. Constitution and Art. V, § 3, Mo.Const.1945, as amended.
On March 30, 1974, at about 1:45 a.m., trooper Hedrick of the Missouri Highway Patrol observed appellant driving at an excessive rate of speed on Highway 54 in Audrain County near Auxvasse, Missouri, and stopped him. Appellant got out of the car. Trooper Hedrick testified he saw him staggering very badly and he smelled alcohol. Hedrick placed him under arrest for driving while intoxicated and requested appellant to submit to a breathalyzer test informing him that if he refused the test his driver's license might be revoked for one year. No issues are raised concerning the arrest or whether the officer had reasonable grounds to believe appellant was intoxicated.
Appellant said he would take the test so the trooper took him to a weight station in Kingdom City where trooper Baker met them in order to give appellant the test. Hedrick advised appellant of his rights by reading from a form. Trooper Baker was called to the scene of an automobile accident and therefore could not administer the test, so trooper Hedrick took appellant to the Fulton, Missouri, police station in order that there would be another witness to the test. Hedrick and appellant had been in Kingdom City about ten minutes and they arrived in Fulton about 2:25 or 2:30 a.m.
Hedrick gave appellant the Miranda rights form to read while the breathalyzer machine was warming up. After appellant read the form, he stated to Hedrick that 'the way it reads here that I have the right to have my lawyer present' and asked to call his lawyer. Appellant phoned his lawyer, Mr. Seigfreid, in Mexico, Missouri, and asked Mr. Seigfreid for advice as to whether or not to take the test.
Appellant testified he called his lawyer when he was told that if he refused to take the test he could lose his license. He said that he told his lawyer to come over to the police station and that Mr. Seigfreid agreed to do so.
Attorney Seigfreid heard the trooper in the background say he was not going to wait for Mr. Seigfreid to come to the station, and then trooper Hedrick conversed with Seigfreid on the phone. Seigfreid said he would come right down to the station and Hedrick said the test was going to be given 'right now'. It would have taken attorney Seigfreid 35--40 minutes to get there but he thought he could get a local attorney in Fulton there within ten minutes.
Mr. Seigfreid testified he asked the trooper why the Miranda warnings were read to appellant that said he had a right to have counsel present, and the trooper replied that had nothing to do with it. Appellant again spoke with Mr. Seigfreid on the phone. Mr. Seigfreid said that in view of appellant's past experience with the breathalyzer test (see State v. Deimeke, 500 S.W.2d 257 (Mo.App.1973)), he should not take the test unless either he (Seigfreid) or a local attorney was present. By this time about one hour had elapsed since appellant was arrested.
After the phone conversation was over, and according to trooper Hedrick, appellant stated to Hedrick that his lawyer advised him not to take the test and he wasn't going to take it. According to appellant, he stated to the trooper that he was not going to take the test without an attorney present. The trooper wrote the matter up as a refusal and subsequently appellant's driver's license was revoked for one year by the director of revenue pursuant to § 564.444.
Appellant filed his petition for hearing pursuant to § 564.444. The matter was heard in circuit court and the court found as a fact, inter alia, that appellant 'refused' to take the breathalyzer test.
Appellant contends § 564.444 violates the due process clause of the United States Constitution, Amendment XIV, in that the statute in question contains no procedural safeguards, criteria, or standards for determining what constitutes a 'refusal' to take the breathalyzer test.
The basis for appellant's contention is that he did not refuse to take the test but rather requested the presence of counsel before he took the test. In other words, appellant's position is that he has the right to condition his consent to take the test upon his counsel being present during the administration of the test.
In order that the two concepts will not be confused, we think it advisable to note the following. A person arrested and held in custody has the right to consult with counsel or other persons in his behalf. Sec. 544.170, RSMo 1969, Rules 37.89 and 21.14; Gooch v. Spradling, 523 S.W.2d 861 (Mo.App.K.C.Dist.1975). This right does not depend upon the type of offense for which the party is arrested and applies to arrests for driving while intoxicated. Nor is it suspended pending the giving of a breathalyzer test. Gooch v. Spradling, supra.
In the instant case, appellant was afforded and exercised his right to call his lawyer and did consult with him on the phone. If his lawyer had come to the police station, appellant would have had the right to consult with him in person. Moreover, the arrested person has the right, if his lawyer appears before or during any such tests, to have him present while the test is being administered. This right in Missouri is afforded by § 544.170 and Rules 37.89 and 21.14.
Appellant's contention in this case is that he had a right to the presence of counsel and, therefore, had a right to condition his consent upon counsel being present at the test. Appellant says he didn't really refuse the test but rather consented to the taking of it if his attorney was present.
Further, appellant here premises his constitutional attack on the Sixth and Fourteenth Amendments, United States Constitution, contending that under those right-to-counsel provisions he is entitled to have an attorney present at the administration of a breathalyzer test. Consequently, he contends that his failure to take the test in the absence of an attorney could not constitutionally constitute a 'refusal' upon which his license could be revoked for a year.
In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), Schmerber was convicted of driving while intoxicated. The evidence of intoxication was obtained by taking a blood sample from Schmerber's body, over Schmerber's objection, which, upon chemical analysis being made, revealed a percentage of alcohol in his blood indicating intoxication. The report of this analysis was admitted at trial. Schmerber had refused to submit to the blood test on advice of counsel. While confined in a hospital for treatment of injuries received in the automobile accident, a police officer, over Schmerber's...
To continue reading
Request your trial
-
GRIFFIN v. U.S.
...of what is asked." Board of Public Instr. v. Cohen, 413 F.2d 1201, 1203 (5th Cir. 1969). It is a volitional act. Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo. 1975). "Refusal" to admit the police is to be distinguished from "failure" to do so; the legislature could have used the latter wor......
-
Sites v. State
...106 Ariz. 542, 479 P.2d 685 (1971); State v. Vietor, 261 N.W.2d 828 (Iowa 1978); State v. Jones, 457 A.2d 1116 (Me.1983); Spradling v. Deimeke, 528 S.W.2d 759 (Mo.1975); State v. Petkus, 110 N.H. 394, 269 A.2d 123 (1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1522, 28 L.Ed.2d 867 (1971); Sed......
-
State v. Epperson
...291 Minn. 302, 191 N.W.2d 188 (1971) (But see Prideaux v. State Dept. of Public Safety, 247 N.W.2d 385 (Minn.1976)); Spradling v. Deimeke, 528 S.W.2d 759 (Mo.1975); Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973); Harlan v. State, 113 N.H. 194, 308 A.2d 856 (1973); State v. Pandoli......
-
Dunn v. Petit, s. 77-342-M
...P.2d 66 (1970); Gottschalk v. Sueppel, 258 Iowa 1173, 140 N.W.2d 866 (1966); Newman v. Hacker, 530 S.W.2d 376 (Ky.1975); Spradling v. Deimeke, 528 S.W.2d 759 (Mo.1975); Rusho v. Johns, 186 Neb. 131, 181 N.W.2d 448 (1970); Harlan v. State, 113 N.H. 194, 308 A.2d 856 (1973); State v. Pandoli,......
-
Administrative hearings
...the person arrested “objectively manifests 8-33 Administrative Hearings §825 confusion regarding that right.” See Spradling v. Deimeke , 528 S.W.2d 759 (Mo. 1975); Shoemaker v. State, Department of Motor Vehicles , 11 Wn. App. 860, 526 P.2d 908 (1974). These cases indicate that Miranda warn......