573 S.W.3d 634
Mo.2019Background
- Roesing was arrested for suspected DWI, read the implied-consent warning, and requested to call an attorney; he reached counsel during the statutorily allotted 20-minute period.
- About one minute into the call, Roesing handed the phone to an officer; counsel asked to speak privately, but the officer said any private room would be audio/video recorded.
- The officer returned the phone and stood roughly three feet from Roesing; the client-side of the call was overheard and audio/video recorded while the officer remained present.
- After a ~20-minute call, the officer reread the implied-consent warning and Roesing refused the chemical test; the Director revoked his license for one year under § 577.041.1.
- Roesing petitioned for judicial review; the circuit court sustained the revocation. The Supreme Court of Missouri (en banc) reversed, finding the statutory right to contact counsel includes a right to a private consultation and that the Director failed to prove lack of prejudice from the violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 577.041.1’s 20‑minute right to "attempt to contact an attorney" includes a right to consult privately once counsel is reached | Roesing: privacy is inherent in the right to contact counsel; meaningful advice requires confidentiality | Director: statute grants only a 20‑minute attempt window; no guarantee of a private consultation | Court: Yes — privacy is inherent; statute must allow meaningful, candid consultation once counsel is contacted |
| Whether overhearing/recording the conversation violated § 577.041.1 | Roesing: officer overhearing and recording denied a reasonable, private opportunity to consult and chilled candid communication | Director: providing 20 minutes satisfied the statute regardless of privacy | Court: Officer’s presence and recording deprived Roesing of the right to speak privately with counsel |
| Whether the Director proved lack of prejudice from the statutory violation | Roesing: was prejudiced because his communication was chilled and recordings were shared with prosecutors | Director: burden to show no prejudice; argued 20‑minute window was provided | Court: Director failed to prove absence of prejudice given officer proximity and recordings distributed to prosecutors |
| Whether § 600.048.3 (private room requirement) requires reading privacy into § 577.041.1 | Roesing: statutes in pari materia and § 600.048.3 support an inherent privacy right | Director/dissent: statutes are not necessarily related; § 577.041.1 plain text controls | Court: in pari materia supports privacy; § 600.048.3 corroborates that confidentiality should be available |
Key Cases Cited
- Norris v. Director of Revenue, 304 S.W.3d 724 (Mo. banc 2010) (statute’s purpose is to give a reasonable opportunity to contact counsel to make an informed decision)
- Riley v. Director of Revenue, 378 S.W.3d 432 (Mo. App. 2012) (driver entitled to twenty minutes to attempt to contact and speak to counsel)
- White v. Director of Revenue, 255 S.W.3d 571 (Mo. App. 2008) (refusal must be voluntary and unequivocal; full statutory time must be granted)
- Kotar v. Director of Revenue, 169 S.W.3d 921 (Mo. App. 2005) (driver not deemed to have refused when not given a reasonable opportunity to consult counsel)
- Clardy v. Director of Revenue, 896 S.W.2d 53 (Mo. App. 1995) (factbound inquiry whether limited statutory right was violated where officers remained nearby)
- State v. Holland, 711 P.2d 592 (Ariz. 1985) (effective counsel requires private conferral; confidentiality crucial to meaningful advice)
- Bickler v. N.D. State Highway Comm’r, 423 N.W.2d 146 (N.D. 1988) (privacy is inherent in the right to consult counsel)
- Farrell v. Municipality of Anchorage, 682 P.2d 1128 (Alaska Ct. App. 1984) (statutory right to contact counsel requires reasonable efforts to assure confidential communications)