State v. Palmer, No. 42764

CourtSupreme Court of Minnesota (US)
Writing for the CourtMURPHY; OTIS; ROGOSHESKE; KELLY
Citation291 Minn. 302,191 N.W.2d 188
PartiesSTATE of Minnesota, Respondent, v. Robert Hudson PALMER, Appellant.
Docket NumberNo. 42764
Decision Date15 October 1971

Page 188

191 N.W.2d 188
291 Minn. 302
STATE of Minnesota, Respondent,
v.
Robert Hudson PALMER, Appellant.
No. 42764.
Supreme Court of Minnesota.
Oct. 15, 1971.

Syllabus by the Court

[291 MINN 302] 1. Since an administrative proceeding for the suspension of a driver's license pursuant to Minn.St.1969, § 169.123, is a civil proceeding and not a criminal prosecution, a defendant does not have a constitutional right to consult with an attorney before deciding whether to accede to an officer's request to submit to a chemical test.

2. It is provided by Minn.St. 169.123, subd. 4, that '(i)f a person under arrest refuses to permit chemical testing, none shall be given * * *.' Testing officers are not required to await the convenience of the accused after he has refused the tests to permit him an opportunity to reconsider his decision so that he might take a test at a later time or place.

[291 MINN 303] Errol K. Kantor, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., James M. Kelley, Asst. Atty. Gen., Frederick S. Suhler, Jr., Sp. Asst. Atty. Gen., St. Paul, for respondent.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS, and ROGOSHESKE, JJ.; reconsidered and decided on the record by the court en banc.

OPINION

MURPHY, Justice.

Appeal from an order of the district court denying defendant's motion for judgment notwithstanding the verdict or for a new trial in a proceeding by which the commissioner of highways, now the commissioner of public safety, revoked defendant's

Page 189

driver's license pursuant to Minn.St. 1969, § 169.123.

Defendant contends that he was denied right of counsel at the time chemical tests were offered pursuant to the 'implied consent' law. It is also contended that, although he initially refused the tests offered without advice of counsel, he changed his mind thereafter and that his conduct did not amount to a refusal under § 169.123, subd. 2.

From the record it appears that shortly after defendant had been taken into custody for the alleged offense of driving an automobile while under the influence of alcohol, he was brought to the Traffic Division Chemical Test Section of the Minneapolis Police Department. It is not disputed that he was there offered his choice of the three tests provided for in the implied-consent statute after that law had been fully explained to him. He refused to take a test and also refused to sign a statement to the effect that the tests had been offered to him. On his own behalf defendant testified that, after being informed of the implied-consent law, and before he was asked to acknowledge by signature his refusal to take a test, he stated that he did not 'want to do anything until I talk to a lawyer because I am not familiar with it.' An officer then delivered him to the custody of the Hennepin[291 MINN 304] County sheriff whose office is in the same building. While in the sheriff's office, he telephoned an attorney who advised him to take the test which he had previously refused. He then told the deputy sheriff that he would like to take the test, but this request was denied. This communication was made about an hour and 15 minutes after he had been brought to police headquarters. Pursuant to defendant's phone call, his attorney promptly appeared and secured his release. Defendant was taken by his attorney to the Hennepin County General Hospital where, within an hour after their arrival, a blood sample was taken. The sample tested at defendant's request for alcoholic content revealed a reading of 0.17 percent by weight and on recheck 0.168 percent. 1

Pursuant to notification that defendant had refused the tests, the commissioner of highways, under authority of § 169.123, notified him that his driver's license would be revoked for 6 [291 MINN 305] months. In subsequent proceedings this order was upheld in municipal court and, on appeal therefrom to the district court, the order was again affirmed.

The record clearly indicates that at the time defendant was properly present at the facility for testing he refused to submit to any of the three tests offered. He was fully apprised of the possible penalty for such refusal. Minn.St. 169.123, subd. 4, provides:

'If a person under arrest refuses to permit chemical testing, none shall be

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given, but the commissioner of public safety, upon the receipt of a certificate of the peace officer that he had reasonable and probable grounds to believe the arrested person had been driving or operating a motor vehicle upon the public highways while under the influence of an alcoholic beverage, and that the person had refused to permit the test, shall revoke his license or permit to drive and any nonresident operating privilege for a period of six months. If the person is a resident without a license or permit to operate a motor vehicle in this state, the commissioner of public safety shall deny to the person the issuance of a license or permit for a period of six months after the date of the alleged violation, subject to review as hereinafter provided.'

1. It is well settled that under the Federal and Minnesota Constitutions the accused, in all criminal prosecutions, shall enjoy the right to have assistance of counsel in his defense. State v. Waldron, 273 Minn. 57, 139 N.W.2d 785. That right does not extend to administrative or civil proceedings. In State, Department of Highways, v. Styrbicki, 284 Minn. 18, 21, 169 N.W.2d 225, 227, we held that an acquittal of the criminal charge of driving while intoxicated 'does not preclude an administrative hearing to determine if his driving privileges should be withdrawn for his refusal to submit to a chemical test to determine the alcoholic content of his blood.'

Defendant's contention that he was denied a...

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29 practice notes
  • Suazo, Matter of, No. 21165
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 23, 1994
    ...A.2d 907, 907-08 (1973); about one hour, Gaunt, 136 Ariz. at 425-28, 666 P.2d at 525-28; one hour and fifteen minutes, State v. Palmer, 291 Minn. 302, 191 N.W.2d 188, 188-92 (1971); two hours, Krueger v. Fulton, 169 N.W.2d 875, 879 (Iowa 10 Some states sidestep this problem by establishing ......
  • Friedman v. Commissioner of Public Safety, No. C9-89-1708
    • United States
    • Supreme Court of Minnesota (US)
    • June 7, 1991
    ...was a "proceeding." II. We turn now to our case law in the area of DWI proceedings. The respondent relies on State v. Palmer, 291 Minn. 302, 191 N.W.2d 188 (1971), where we held that, under the Minnesota Constitution, the right to counsel does not extend to a DWI license revocatio......
  • Prideaux v. State, Dept. of Public Safety, No. 45862
    • United States
    • Supreme Court of Minnesota (US)
    • October 8, 1976
    ...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 ac......
  • Nyflot v. Commissioner of Public Safety, No. C5-84-2030
    • United States
    • Supreme Court of Minnesota (US)
    • June 11, 1985
    ...driver's Sixth Amendment right to counsel. We first addressed the issue of right to counsel in implied consent cases in State v. Palmer, 291 Minn. 302, 191 N.W.2d 188 (1971), and held that a driver has no constitutional right to consult with counsel before deciding whether to submit to chem......
  • Request a trial to view additional results
29 cases
  • Suazo, Matter of, No. 21165
    • United States
    • New Mexico Supreme Court of New Mexico
    • June 23, 1994
    ...A.2d 907, 907-08 (1973); about one hour, Gaunt, 136 Ariz. at 425-28, 666 P.2d at 525-28; one hour and fifteen minutes, State v. Palmer, 291 Minn. 302, 191 N.W.2d 188, 188-92 (1971); two hours, Krueger v. Fulton, 169 N.W.2d 875, 879 (Iowa 10 Some states sidestep this problem by establishing ......
  • Friedman v. Commissioner of Public Safety, No. C9-89-1708
    • United States
    • Supreme Court of Minnesota (US)
    • June 7, 1991
    ...was a "proceeding." II. We turn now to our case law in the area of DWI proceedings. The respondent relies on State v. Palmer, 291 Minn. 302, 191 N.W.2d 188 (1971), where we held that, under the Minnesota Constitution, the right to counsel does not extend to a DWI license revocatio......
  • Prideaux v. State, Dept. of Public Safety, No. 45862
    • United States
    • Supreme Court of Minnesota (US)
    • October 8, 1976
    ...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 ac......
  • Nyflot v. Commissioner of Public Safety, No. C5-84-2030
    • United States
    • Supreme Court of Minnesota (US)
    • June 11, 1985
    ...driver's Sixth Amendment right to counsel. We first addressed the issue of right to counsel in implied consent cases in State v. Palmer, 291 Minn. 302, 191 N.W.2d 188 (1971), and held that a driver has no constitutional right to consult with counsel before deciding whether to submit to chem......
  • Request a trial to view additional results

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