State v. Neitzel

Decision Date01 April 1980
Docket NumberNo. 77-119,77-119
Citation95 Wis.2d 191,289 N.W.2d 828
CourtWisconsin Supreme Court
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Franklin J. NEITZEL, Defendant-Appellant.

Hafner, McDonald, Thompson & Russell, S. C., La Crosse, for defendant-appellant.

Bronson C. LaFollette, Atty. Gen., and Albert O. Harriman, Asst. Atty. Gen., for plaintiff-respondent.

HEFFERNAN, Justice.

The county court directed the Administrator of the Motor Vehicle Division of the Department of Transportation to suspend Franklin J. Neitzel's driving privileges for a period of sixty days because of Neitzel's unreasonable refusal to submit to chemical testing as required by sec. 343.305, Stats. 1975. 1 On this appeal Neitzel asserts that he was entitled to consult counsel before deciding to take or refuse to take a chemical test for intoxication as provided by sec. 343.305, et seq.

We conclude that for this purpose no right to counsel is afforded by Wisconsin law. By reason of the implied consent law, a driver, when he applies for and receives an operator's license, submits to the legislatively imposed condition on his license that, upon being arrested and issued a citation for driving under the influence of an intoxicant, contrary to sec. 346.63(1), Stats., he consents to submit to the prescribed chemical tests. He applies for and takes his license subject to the condition that a failure to submit to the chemical tests will result in the sixty-day revocation of his license unless the refusal was reasonable.

Because the clear policy of the statute is to facilitate the identification of drunken drivers and their removal from the highways, the statute must be construed to further the legislative purpose. To confer the right to consult counsel before giving the accused a required chemical test, which was consented to by the application for a driver's license and under circumstances where no constitutional right is involved, would thwart the legislative purpose. The right to "consult and be advised by an attorney," as provided in sec. 946.75, Stats. 1975, 2 does not affect the state's authority to request an arrested driver to submit to chemical testing, and the refusal to submit to such test because there has been no prior opportunity to consult with, and be advised by, counsel is not for that reason reasonable and sufficient to excuse compliance with the implied consent law. We affirm.

The record shows that Neitzel was arrested by Deputy Sheriff Gerald Clark in La Crosse county at about 11:15 p. m. on the evening of May 9, 1977. After observing erratic driving, Deputy Clark stopped the vehicle and placed the driver, Neitzel, under arrest for operating a motor vehicle while intoxicated. A traffic citation was issued at the time of the arrest. Clark then took Neitzel to the La Crosse County Courthouse, where he informed him of his obligations under Wisconsin's implied consent law. Deputy Clark told Neitzel that, pursuant to that law, he was deemed to have consented to taking a chemical test to determine the percentage of alcohol in his blood. Reading from a standard state form, MVD-4197, Deputy Clark told Neitzel that, if he unreasonably refused to take the test, his driving privileges would be revoked for sixty days; that he could request a hearing to establish the reasonableness of his refusal; and that, if he did not wish to take a breathalyzer test, he could choose one of two alternate types of tests and have the test performed by a physician of his own choice. Additionally, Deputy Clark told Neitzel that, if he was convicted of driving while under the influence of intoxicants after having unreasonably refused to submit to a chemical test, his operating privileges would be suspended for a period of one year.

Neitzel was not given a Miranda warning, nor was any such warning required, because there was no interrogation. Although the standard implied consent warning, which was read to Neitzel, does not refer to any right to counsel before deciding to take a chemical test, after the warning was read, Neitzel asked permission to telephone his own attorney. Deputy Clark testified that, although it was contrary to the department's normal procedure to allow a driver to contact an attorney before deciding to take a chemical test, Neitzel was nevertheless permitted to call his own attorney. Neitzel asked his attorney to come to the courthouse to assist him in deciding whether to take the intoxication test. The record indicates that Neitzel's phone conversation with his attorney was extremely brief and included no discussion of whether Neitzel should submit to the test.

After Neitzel finished speaking with his attorney, the police demanded that he make a decision whether or not he would take the breathalyzer test. Neitzel replied that he would not take the test until his attorney arrived. Clark explained that the test must be administered within a limited time following the arrest, 3 and that he must make the decision promptly regardless of whether his lawyer was present. Clark explained to Neitzel that his insistence on waiting for his lawyer would be construed as a refusal to take the test. The implied consent law was explained to Neitzel several more times, but he repeatedly refused to take the test until his lawyer was present. Neitzel acknowledged that he never told the officers when he expected his attorney to arrive. Officer Clark recorded Neitzel's refusal at 12:20 a. m. on May 10 and booked him into the county jail.

Shortly after Neitzel was booked, his attorney arrived, posted bond, and at 1:00 a.m., approximately one hour and forty-five minutes after the arrest, Neitzel was released from custody. Neither Neitzel nor his attorney requested that the chemical test be administered, and the police did not ask Neitzel to submit to the test after the arrival of the attorney.

On the same day, the arresting officer reported to the county court of La Crosse county that Neitzel had unreasonably refused to submit to a chemical test required by the implied consent law. He asked that the court suspend Neitzel's license for sixty days, as is required by law. The court notified Neitzel of this request and of his right to a hearing prior to the suspension of the license. 4 Neitzel requested a hearing, and one was held before Judge Michael Kirchman on July 20, 1977. The facts adduced are those summarized above.

After the hearing, at which Neitzel was represented by counsel, the court found that the defendant did not have the right to consult with an attorney, that the state had the right to gather evidence with or without an attorney being present, and that the defendant's refusal to submit to a chemical test was unreasonable. The court also made the finding that the arresting officers complied with the implied consent law by giving the appropriate warnings prior to demanding a chemical test. The order for suspension was directed by the court to be effective on July 25, 1977, with the further proviso that actual suspension would be stayed in the event an appeal was taken. A notice of appeal was filed immediately; and, accordingly, the suspension of Neitzel's driver's license for refusal to take the required chemical test has been stayed during the pendency of this appeal.

On this appeal, Neitzel asks the court to rule that a person arrested for driving under the influence of an intoxicant has a "limited" right to confer with an attorney before responding to a request for chemical testing. Neitzel refers to this alleged right as a limited one, in that he acknowledges that the right to counsel should be allowed only where invoking the right would not unduly burden the police or significantly delay chemical testing.

Neitzel's brief implicitly acknowledges the fact that the request for an attorney cannot be used to vitiate the purposes of the implied consent law. He acknowledges that, if the accused cannot contact his counsel promptly, he can be required to make a decision whether to submit to chemical testing in the absence of counsel.

For his position, Neitzel relies principally upon the case of Prideaux v. State Department of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976). Neitzel acknowledges that the decision of the Minnesota Supreme Court granting the limited right to counsel rests not on a constitutional right but on the theory that the accused has a statutory right to counsel under Minnesota law before deciding whether to submit to chemical testing.

This court has repeatedly held that an arrested driver does not have a constitutional right to consult with an attorney prior to deciding whether to submit to chemical testing under the implied consent law. State v. Bunders, 68 Wis.2d 129, 227 N.W.2d 727 (1975); State v. Driver, 59 Wis.2d 35, 207 N.W.2d 850 (1973). These cases rest upon the rationale enunciated in the United States Supreme Court case of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and State v. Kroening, 274 Wis. 266, 79 N.W.2d 810, 80 N.W.2d 816 (1956), both of which held that the constitutional privilege against self-incrimination is not violated by compelling the accused to lend his person as a source of nontestimonial evidence.

In Driver, we said:

"Since the privilege (against self-incrimination) was not involved in defendant's choice to submit to the test, there is no merit to his argument that counsel was necessary in order to advise him in making that choice." (59 Wis.2d at 42-3, 207 N.W.2d at 853.)

In Bunders, we specifically held that no constitutional right was violated where an arresting officer refused to grant an accused access to counsel before being asked to take the intoxication test.

Neitzel acknowledges that Driver and Bunders are in accord with the vast majority of jurisdictions whose courts have considered whether there is a constitutional right to counsel prior to taking chemical tests under...

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