NO. 93-179
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
In the Matter of the Suspension
of the Driver's License of
CHARLES A. BLOMEYER,
Petitioner and Appellant,
STATE OF MONTANA
Respondent and Respondent.
<:
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randy S. Laedeke~; Laedeke Law Office, Billings,
Montana ,
For Respondent:
Hon. Joseph P. Mazurek, Attornese;ea;-al, Brenda
Nordlund, Assistant Attorney Helena,
Montana; Dennis Paxinos, Yellowsto& County
Attorney, Brent Brooks, Deputy County Attorney,
Montana r
Submitted on Briefs: February 24, 1994
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Decided: March 29, 1994+
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I
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from a Thirteenth Judicial District Court
ruling on a petition for judicial review of the suspension of
Charles Blomeyer's (Charles) driver's license for refusal to submit
to a breath test under the implied consent law. The District Court
determined that the suspension of Charles' driver's license and
driving privileges would remain in effect until the appropriate
suspension period expired pursuant to § 61-8-402(5), MCA. We
affirm.
There are two issues on appeal which we state as follows:
1. Does a police officer have an affirmative duty to advise a
driver that he does not have the right to counsel before he decides
whether to submit to a test of his blood alcohol content?
2 . Does the "confusion doctrine" apply in the instant case?
Background
Charles was stopped for suspicion of driving under the
influence on December 20, 1992, in Billings, Montana. He was taken
to the Yellowstone County Detention Facility and was asked to
perform the standard field sobriety tests while being filmed on
videotape.
Charles had considerable difficulty performing the field
sobriety tests. Following these tests, the officer read and
explained the implied consent law advisory form to him. During the
reading of the implied consent form, Charles repeatedly asked to
speak to an attorney. The police officer informed him that when he
(the officer) finished reading the implied consent form and
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Charles' Miranda rights, the appellant could call for an attorney.
At the conclusion of the reading of the informed consent form,
the officer asked Charles if he wanted to submit to a test of his
blood alcohol content (BAC test). Charles replied, "Not at this
moment." The officer then read Charles his Miranda rights.
Following the reading, he gave Charles a telephone and a telephone
book and allowed him to call an attorney. The officer noted
Charles' request for an attorney as a refusal to submit to a breath
test with the result that his driver's license and driving
privileges were suspended for 90 days, pursuant to 5 61-8-402(5),
MCA.
Charles petitioned the Thirteenth Judicial District Court,
pursuant to 5 61-8-403, MCA, for a review of the decision to
suspend his driver's license and driving privileges for 90 days.
The court heard Charles' testimony, viewed the videotape of the
field sobriety tests, the reading and explanation of the implied
consent form and the reading of the Miranda rights. Counsel were
also allowed to file briefs.
The District Court found that Charles had refused to submit to
a BAC test even though he knew that his license would be seized
upon a refusal to submit to the test. The District Court concluded
that Charles' driver's license had been properly suspended.
Pertinent Statute
Section Gl-;3-402, MCA, the statute under which Charles'
driver's license was suspended, provides in pertinent part:
Blood, breath, or urine tests. (1) Any person who
operates or is in actual physical control of a vehicle
upon ways of this state open to the public shall be
deemed to have given consent, subject to the provisions
of 61-s-401, to a test of his blood, breath, or urine for
the purpose of determining any measured amount or
detected presence of alcohol in his body if arrested by
a peace officer for driving or for being in actual
physical control of a vehicle while under the influence
of alcohol, drugs, or a combination of the two. The test
shall be administered at the direction of a peace officer
having reasonable grounds to believe the person to have
been driving or in actual physical control of a vehicle
upon ways of: this state open to the public, while under
the influence of alcohol, drugs, or a combination of the
two. The arresting officer may designate which test or
tests shall be administered.
i3j . If a driver under arrest refuses upon the
request of a peace officer to submit to a test designated
by the arresting officer as provided in subsection (l),
none shall be given, but the officer shall, on behalf of
the department, immediately seize his driver's license.
The peace officer shall forward the license to the
department, along with a sworn report that he had
reasonable grounds to believe the arrested person had
been driving or was in actual physical control of a
vehicle upon ways of this state open to the public, while
under the influence of alcohol, drugs, or a combination
of the two, and that the person had refused to submit to
the test upon the request of the peace officer. Upon
receipt of the report, the department shall suspend the
license for the period provided in subsection (5).
i5j The followinq suspension and revocation periods
are applicable upon refusal to submit to a test:.
(a) upon a first refusal, a suspension of 90 days
with no provision for a restricted probationary license.
. . .
Right to Counsel
Does a police officer have an affirmative duty to advise a
driver that he does not have the right to counsel before deciding
whether to submit to a BAC test?
Initially, we reiterate that a driver has no right to counsel
before he must decide whether to submit to a BAC test. State v.
Armfield (1984), 214 Mont. 229, 693 P.2d 1226. Secondly, we
4
reaffirm that a continual request to speak to an attorney before
submitting to a BAC test is deemed a refusal to take the test.
Johnson v. Division of Motor Vehicles (1985), 219 Mont. 310, 711
P.2d 815.
The difference between the driver in Johnson and the driver in
the instant case is that in Johnson, the police officer informed
the driver that he had no right to counsel during the breath test.
Here, Charles was not so informed, and hence, there is raised the
question of whether a police officer has an affirmative duty to
inform the driver that he has no right to counsel before deciding
whether to submit. to a BAC test.
We turn to a prior Montana case for guidance in resolving this
issue. In Meyer v. State (1987), 229 Mont. 199, 745 P.2d 694, the
appellant was stopped for suspicion of driving under the influence.
After being taken to the Great Falls police station and after being
read the implied consent law advisory form, the driver requested
that he be able to call a friend prior to taking the breath test.
The police officer informed him that he could make as many
telephone calls as he wanted, but first, he would have to tell the
officer whether he would submit to the breath test. The appellant
stated that he would not submit to the test and his license was
subsequently suspended.
In affirming the District Court in Meyer, we concluded that
the appellant had to decide without assistance from anyone whether
to take a breath test. We stated:
Patrolman Wylie informed Meyer that he could not
call his friend prior to taking a breath test. In doing
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Wylie effectively told Meyer that he could not speak
gz' his friend, attorney or any other person. If
arguendo, Wylie had told appellant Meyer that he had no
right to speak to an attorney, the results would have
been the same. Appellant Meyer would have been forced to
decide without assistance whether he wished to take a
breath test. That result is exactly what happened.
Appellant has not challenged our holding in Armfield
or 3 61-S-402, MCA. Nor has appellant presented this
Court with evidence of prejudice. The District Court did
not err when it held that appellant was not prejudiced by
Patrolman Wvlie's failure to instruct Meyer that he had
no riqht to counsel. Accordingly, we hold that
appellant's driver's license was properly suspended.
Meyer, 745 P.2d at 696. (Emphasis added.)
In the same manner, Charles was not prejudiced by the police
officer's failure to inform him that there is no right to counsel
before a driver decides whether to submit to a BAC test. The same
result would have obtained if the police officer had instructed
Charles that he had no right to counsel. Charles still would have
had to decide without assistance, whether to submit to a BAC test.
Meyer, 745 P.2d at 696. Since a failure to inform a driver that he
does not have a right to counsel prior to deciding whether to take
a BAC test does not prejudice the driver's rights, we hold that
there is no affirmative duty on the part of a police officer to
inform a driver that he has no right to counsel before deciding
whether to submit to a BAC test.
Confusion Doctrine
Does the "confusion doctrine" apply in the instant case?
Charles argues that the police officer should have informed
him that his constitutional right to counsel did not apply to the
implied consent request. Charles also maintains that he thought he
had a right to counsel before deciding whether to submit to a BAC
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test, and that because of his confusion, his refusal to submit to
a BAC test should be excused. The State counters that the
"confusion doctrine" which Charles attempts to implicate here, does
not apply to the present case. We agree.
The 'confusion doctrine' provides that when an arresting
officer introduces the question of a drunken-driving
suspect's right to counsel by giving a Miranda warning
prior to requesting a chemical test, the suspect's
subsequent refusal to take a test until an attorney is
consulted may not constitute a 'refusal to submit' to a
chemical test.
Ehrlich v. Backes (N.D. 1991), 477 N.W.2d 211, 213. A number of
states have adop.ted the "confusion doctrine," and Charles urges
this Court to, likewise, adopt that rule. See Rust v. Department
of Motor Vehicles Div. of Driver's Lit. (Cal. Ct. App. 1968), 267
Cal. App. 2d 545, 73 Cal. Rep. 366; State Department of Highways v.
Beckey (Minn. 1971), 192 N.W.2d 441; and State v. Severino (Haw.
1975), 537 P.2d 1187.
Whether we determine to adopt the rule in some future case,
the facts here do not warrant the application of the doctrine. The
confusion doctrine applies only when Miranda rights are given &
a or contemporaneously with a driver being advised of his rights
and obligations under the implied consent law. The "confusion" is
caused by informing the driver via his Miranda rights that he has
a riqht to counsel and then asking him to take a BAC test under the
implied consent law. It is recognized that this situation could
easily confuse a driver and mislead him to believe he has the right
to an attorney before he decides whether to submit to a BAC test.
Beckey, 192 N.W.2d at 445; Severino, 537 P.2d at 1198.
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In the instant case, the police officer first informed
Charles of his rights and obligations under the implied consent
law. Charles then refused to take the breathalyzer test before his
Miranda rights were even read. Because his Miranda rights were
read after the implied consent form was read and after Charles
refused to submit to a BAC test, there is no likelihood that he
confused his right to counsel under Miranda, with his rights and
obligations under the implied consent law. In short, having
already refused the BAC test, Charles could not have been mislead
by the subsequent reading of his Miranda rights into thinking that
he had a right to counsel before deciding whether to take the BAC
test.
Charles refused to submit to the BAC test and has not brought
his case within the application of the "confusion doctrine."
Accordingly, we hold that the District Court correctly denied
Charles' petition for reinstatement of his driver's license.
AFFIRMED.
We Concur:
March 29, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Randy S. Laedeke, Esq.
Laedeke Law Office
P.O. Box 2216
Billings, MT 59103
Hon. Joseph P. Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620
Dennis Paxinos, County Attorney
Brent Brooks, Deputy
P.O. Box 35025
Billings, MT 59107
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA