Hall v. Secretary of State

D. E. Holbrook, J.

(dissenting). Plaintiff, Wayne *442E. Hall, Sr., was arrested July 20, 1973, sometime before 7 p.m., at the scene of a minor property damage accident in Delta Township, Eaton County. A deputy charged him with driving while under the influence of intoxicating liquor, contrary to MCLA 257.625; MSA 9.2325. He was advised of his right to consent to or refuse to take a Breathalyzer test and of the possibility of suspension of his driver’s license should he refuse.

Hall apparently refused to sign a booking card upon his arrival at the jail. He refused to submit to the test, claiming that he wanted to telephone his attorney or have his attorney present before submitting to the test. There is no showing that Hall was given the Miranda 1 rights. The deputy refused this request for consultation with the attorney and no test was given. On August 29, 1973, the License Appeal Board held that plaintiffs refusal to take the Breathalyzer test was in violation of the implied consent law. The Secretary of State ordered plaintiff’s license suspended for 90 days. A de novo hearing was had in circuit court, pursuant to MCLA 257.625f(3); MSA 9.2325(6X3). The circuit court after its de novo hearing found that the driver had unreasonably refused to take the test. Plaintiff has here appealed and asserts, in essence, that the disallowance of consultation with his attorney constituted a denial of due process of law. With this assertion this writer cannot agree.

This Court does not conduct another de novo hearing but determines on review whether the circuit court’s decision was clearly erroneous. The task herein is plain and simple: to determine whether the trial court was clearly erroneous in determining that plaintiffs refusal was unreasona*443ble. The Legislature has determined the propriety of who shall make the decision to take the test or not, viz., the individual, not his attorney and without a specific provision for consultation between the two.

In the absence of statute, a Breathalyzer test could be compelled. See People v Keen, 56 Mich App 84; 223 NW2d 700 (1974), and People v Gebarowski, 47 Mich App 379; 209 NW2d 543 (1973), relying upon Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). Thus, the right to refuse the Breathalyzer test is statutory and not constitutional. As the statutory material does not provide for a specific right to consult with an attorney, this writer is at a loss to determine how this Court may expand the rights under the legislation in the absence of a constitutional mandate that such is necessary. This writer, also, condemns, based upon plaintiffs refusal to sign the booking card, the disallowing of plaintiff to call his family until 2 a.m. the next morning. This writer cannot, however, say that there was a constitutional right to consult with an attorney and therefore the finding by the License Appeal Board and the trial judge that plaintiff’s refusal to take the Breathalyzer test was unreasonable was proper. The suspension of the license should be affirmed.

This writer fails to see that Rust v Department of Motor Vehicles, 267 Cal App 2d 545; 73 Cal Rptr 366 (1968), Wiseman v Sullivan, 190 Neb 724; 211 NW2d 906 (1973), or State Department of Highways v Beckey, 291 Minn 483; 192 NW2d 441 (1971), are directly applicable to the present case. For instance, in the Beckey case, at 291 Minn 486, 487; 192 NW2d 444-445, the Court wrote, in pertinent part:

"The questions of whether a person arrested refused *444to take the test or had reasonable grounds to do so are questions of fact. Where, as here, the evidence and the inferences to be drawn therefrom conflict, the court holding the hearing must find the facts. Upon appeal, the question presented is whether such findings are supported by the evidence.
* * *
"Where the interrogating officer undertakes to repeat Miranda warnings given by the arresting officer at the time of the arrest as well as to inform the person arrested of his rights and obligations under the implied-consent statute without at the same time making clear that his constitutional rights to counsel and to remain silent do not apply to the implied-consent statute, it is not unlikely that confusion will occur, resulting in the arrested person’s being misled into believing that he may remain silent and that he is being offered the option to postpone his decision and the chemical test until he can consult an attorney. Where the responses of the arrested person upon being requested to submit to a chemical test indicate that he is asserting a right which he has just been told he is free to assert, it is incumbent upon the officer to make clear that he has no constitutional right to consult an attorney before deciding whether he will submit to a test but merely that, at the time the request is made, he has a right to choose between permitting the test or refusing the test at the risk of revocation of his driver’s license.”

For an in-depth. discussion of the foundations of the Beckey case, see Agnew v Hjelle, 216 NW2d 291, 296-297 (ND 1974), disclosing that in no small part the decision may have been based upon Minnesota 12A MSA 169.123(6) which provides, inter alia, for the hearing to "be recorded and proceed as in a criminal matter”.

The Agnew case goes on to discuss the so-called "confusion test” under Rust, supra. The Court thereafter, at 216 NW2d 297-298, quotes from Cahall v Department of Motor Vehicles, 16 Cal *445App 3d 491, 497; 94 Cal Rptr 182, 186 (1971), explaining Rust, thusly:

" 'Finally, appellant maintains that he was so confused concerning the taking of a chemical test that his refusal should be vitiated. While there is authority that where a driver refuses to take a test because he was confused by the Miranda warnings as to his constitutional rights and the demand for a test under the Implied Consent Law (see Rust v Department of Motor Vehicles, 267 Cal App 2d 545, 547; 73 Cal Rptr 366 [1968]), this rule does not apply when the arresting officer explicitly informs the arrestee that the Miranda rights do not apply to the taking of a chemical test pursuant to the Implied Consent Law. (Reirdon v Director of Department of Motor Vehicles, 266 Cal App 2d 808, 811; 72 Cal Rptr 614 [1968].)
" 'The question whether a driver "refused” a test within the meaning of the statute is a question of fact. (Walker v Department of Motor Vehicles, 274 Cal App 2d 793, 799; 79 Cal Rptr 433 [1969].) When there is no evidence of confusion, and where apparent confusion is not demonstrated and is not apparent to the arresting officer, no further clarification on the part of the arresting officer is required. (See Wethern v Orr, 271 Cal App 2d 813, 815; 76 Cal Rptr 807 [1969].)
" 'The Rust "confusion doctrine” is inapplicable because the appellant does not maintain that he suffered any bewilderment as a result of the constitutional admonition. In determining whether an arrestee’s refusal is the result of confusion, the crucial factor is not the state of the arrestee’s mind; it is the fair meaning to be given his response to the demand that he submit to the chemical test. (Maxsted v Department of Motor Vehicles, 14 Cal App 3d 982, 986; 92 Cal Rptr 579 [1971]), Cahall v Department of Motor Vehicles, 16 Cal App 3d 491; 94 Cal Rptr 182, 186 (1971).’ ”

While "prudent police practice in arresting a drunk-driving suspect is to give the Miranda warnings”, where it is desired to question the suspect *446concerning the offense, there is no showing that the Miranda rights were given here. Moreover, to do so is to invite exactly the type of error that the Minnesota Court referred to. There is no need to give Miranda warnings if the rights under the statute are explained properly. Here, plaintiff has made no argument that he was confused. The following occurred:

"The Court: What is there about these particular events that you felt it was necessary to call your attorney more than, shall we say, any other event that takes place in your life day by day?
"Mr. Hall: I figure that that was my right to have an attorney present. I knew at the time of my tickets and also I knew I had three or four beers and the officer at the time was a little sarcastic, and I wanted my attorney present at the time.” (Emphasis supplied.)

There is no right to have an attorney present in this case as there is no showing that plaintiff was being questioned. And plaintiff has made no argument that he was hopelessly confused as to his rights or lack of rights.

This writer fails to understand how the implied-consent law2 can be of any value if (1) the means of invited error are allowed or (2) a drunk driver may be allowed to escape the entire process with no sacrifice or penalty involved. This is exactly what could, if not would, happen in these cases when the individual is just coherent enough to realize that delay is advisable and if the lawyer is unavailable or can’t come immediately there will be time for the effects of the alcohol to dissipate; also, delays on the part of lawyers could serve the same purpose. The intent of the statute, i.e., to protect society from those who are drunk and *447driving on our highways3 and who may do so again, is then effectively defeated.

In Wiseman v Sullivan, supra, at 190 Neb 726; 211 NW2d 908, the Court said:

"The question here is whether the evidence supports the conclusion that there was a refusal, and if there was, the reasonableness or unreasonableness of the refusal. § 39-727.17, R.S.Supp., 1972.”

This is the same question, but without the added fact that plaintiff herein was not given his Miranda rights, with which this Court is faced. There Wiseman had consented to the test, made three phone calls (two unsuccessful attempts to secure counsel and one to attempt to arrange bond), and a "Miranda type warning” was given which stated:

" 'You have the right to consult with or obtain an attorney and have him present with you during the questioning or any part of my investigation. Do you understand that? Do you willingly waive your right to remain silent and your right to have an attorney present with you, or the right to consult with an attorney at this time?’ (Emphasis supplied.)” 190 Neb 727; 211 NW2d 909.

Thereafter, the subject refused to take the test. Later, Wiseman informed the police that he wished to take the test but was refused the same because too much time had elapsed. The Court said, at 190 Neb 728; 211 NW2d 910:

"At the very best, the commingling of the Miranda warnings and the implied consent statute resulted in a high degree of ambiguity.”

*448The Court held:

"If a Miranda type warning is given in connection with information concerning the implied consent statute, it is incumbent upon the arresting officer to explicitly inform the arrested person that the constitutional rights to counsel and against self-incrimination which may have been previously explained are not applicable to the decision the driver must make concerning the giving of samples, that he has no right to consult with an attorney before making that decision, and that the right against self-incrimination does not permit the driver to refuse to make an answer to the request for such samples.” (Emphasis supplied.)4 190 Neb 729; 211 NW2d 910.

Additional light is thrown upon the issue in the case of Bell v Burson, 402 US 535; 91 S Ct 1586; 29 L Ed 2d 90 (1971), which involved suspension of motor vehicle registration and driver’s license for failure to post security to cover damages claimed by aggrieved parties in accidents. The procedural due process there involved was the ability to adjudicate liability through litigation. The Court held, at 402 US 540; 91 S Ct 1590; 29 L Ed 2d 95:

"[T]hat procedural due process will be satisfied by an inquiry limited to the determination whether there is a reasonable possibility of judgments in the amounts claimed being rendered against the licensee.”

The majority, in this case, are attempting to expand the parameters of procedural due process in civil matters through judicial definition and extension of "fundamental fairness”.

"[I]t is fundamental that except in emergency situa*449tions (and this is not one) due process requires that when a State seeks to terminate an interest such as that here involved, it must afford 'notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” (Emphasis in original.) Bell v Burson, 402 US 542; 91 S Ct 1591; 29 L Ed 2d 96 (1971).

Thus, it is obvious that the procedural right there at issue was notice and hearing. In the present case, there has been a license appeal hearing and a de novo hearing in circuit court. There can be no question but that a driver’s license is a valuable asset and an important privilege, but one with which goes responsibility certainly including the responsibility to not drive while impaired or intoxicated and that a penalty must be meted if that is the case.

This writer would uphold the circuit court in finding that the refusal to take the test was unreasonable and properly based upon the evidence before it.

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).

MCLA 257.625c; MSA 9.2325(3).

See Collins v Secretary of State, 384 Mich 656; 187 NW2d 423 (1971).

As to Wiseman, see Department of Public Safety v Nystrom, — Minn —; 217 NW2d 201, 202 (1974).