Kuntz v. State Highway Commissioner

Dakota has had North vacuum. many although years for

refineries using gas refining pro- in the

practice of many years, for we

cess has been followed history of the construction given

are of those statutes interpretation during years. those

Tax Commissioner not new nor is applicable statutes are process. do not know if refining We application of the interpretation and by the Tax Commissioner to

statutes

process is new. Such information would me, in decid- helpful, at least to

have been hand, it would issue at for have

ing the understanding intent us enacting applicable in Legislature Corporation Thus Mobil Oil

statutes. Johnson, supra, argued there Mobil change Department of Reve- taxability policy regarding the

nue’s refinery fuels. But in that case the

use of adopted by rule

court referred set

Department forth policy although Depart-

Department’s not, fact, refinery tax the fuels

ment did Illinois court further

under that rule. The the rule was consistent with

noted that No holdings of court.

earlier is made in this case.

contention explanation is a there reasonable

Unless interpretation abrupt change in

for an statutes, changes pol-

applicable taxation properly legisla- matters for icies are more Tuntland, Mandan, ap- for & Pulkrabek philosophy determination than for the tive pellant; argued by Thomas M. Tuntland. of the Tax Commissioner. Gen., Lamb, Atty. Asst. Steven F. Bismarck, Div.,

Highway Legal Dept., appellee.

MESCHKE, Justice. appeals a district Jeffrey Kuntz from M. KUNTZ, Appellant, Jeffrey Michael Highway upholding the judgment his driv- decision to revoke Commissioner’s STATE HIGHWAY years, 39-20- two er’s license for §§ COMMISSIONER, Appellee. refusing to 39-20-05, N.D.C.C., for 04 and hold that intoxilyzer test. We take an Civ. No. 11273. influ- driving under the Supreme Court of North Dakota. intoxicating liquor qualified has ence of April statutory right consult with an not to submit deciding whether or conclude that test. We a chemical a reasonable was not allowed so, that, therefore, request, do his and to pause] second [16 his failure take the test was not a refus- to you Officer: “Will take the test?” Accordingly, al.1 we reverse. get I lawyer Kuntz: “Don’t call my to first?” important of this are facts case to disposition legal our issue and are Officer: “As soon as we're done with the joint test and dispute. County procedure, can Deputy you not Mercer you Sheriff, Kessler, whoever Kerry like.” stopped Kuntz [call] af- observing him his ter drive motor vehicle pause] second [18 erratically. Kessler detected “a moderate beverage of alcoholic “Why odor about Kuntz: can’t I him call before?” [Kuntz’s] breath,” he and observed Kuntz unsatisfac- way Officer: “That's not the we do our torily perform a sobriety series roadside procedures.” typical tests. Kessler then informed Kuntz that Kuntz: “I don’t really it re- know—does driving was “under he arrest for while ally matter?” the influence of alcohol and/or Officer: “What’s that?” drugs.” immediately Kessler advised Kuntz: “Well—does really it matter?” rights, specifi- Kuntz his constitutional proce- Officer: “Other than our normal cally that he “had the to remain si- dures —no.” lent, anything he said could and would Kuntz: “Well then my I’d like to call against law, be used him in a lawyer.” attorney; he had the to an he if could you Officer: if “... take the test ... one, not afford one appointed would be for if you refuse you cause to take this test him.” automatically your peri- lose license for a it, year. you od of one If take the most Deputy Kessler took Kuntz to Mer- you your days. can lose for license is 91 There, County cer Jail in Stanton. Three months—and after first room, booking subsequent proceedings month, you apply permit. can for work videotaped. prelimi- were After some you But if you refuse to take the test can naries, Deputy Kessler informed Kuntz you all apply permit want for a work and intoxilyzer that his refusal to take test you granted Judge won’t be one. The would result automatic revocation of his grant permit you you won’t a work dialogue license. A driver’s between refuse to take the test.” Kuntz and Kessler followed: , “I my Kuntz: still should able to call you “Do Officer: understand that? Will lawyer, though, I?” shouldn’t you take the test?” Officer: “As soon as done we’re with the proper procedure, test and the you can pause] second [13 your lawyer you call or whoever want.” my Kuntz: I lawyer?” “Can’t call Kuntz: “What does it matter if I call now?” or you Officer: “Yes no. Will take the you going Officer: “Yes or no. Are it, you or If you test not? take the most take test?” your lose for days. can license is 91 If it, you you refuse take automatically Kuntz continued to verbalize his your year, lose license 364 days. lawyer call his whether to get There is no a work repeatedly questioned. take the test and nothing. permit up you.” It’s why Kessler Officer he was not allowed to hearing 1. The officer concluded that Knutz under these circumstances is not a "refusal." apply "failed to one who N.D.C.C.), submit” the test. The statutes Compare Department v. Iowa Westendorf "refuses," (§ to a "refusal" (Iowa 1987) Transportation, 400 N.W.2d 553 “refusing,” and to a who which held that the rule did not (§ 39-20-05(3) "refused” a test N.D.C. apply proceeding an administrative to revoke C.). evidence, We do not exclude but we license. driver’s hold that the evidence of failure take a test Prideaux, after, before, preme supra, lawyer rather than Court in conclud- his call Kuntz did not take ed: taking the test. as a result the Com- intoxilyzer “Although the Minnesota does statute for a his driver’s license revoked missioner explicitly telephone mention calls appealed years. of two

period was drafted before were automobiles district decision Commissioner’s commonly used, interpreted it must be ' upheld the revocation. which license court accordance with the fundamental nature right technologi- of the it affords and the had a asserts that he appeal Kuntz On society. impor- 29-05-20, cal advance of our The N.D. statutory right, under § deciding tance of a driver’s license and the bind- C.C., attorney to call an before to the ing by decisions must be made test: which intoxilyzer the take asked to submit to test- driver chemical Delay prohibit- arrest “29-05-20. after a ing chemical-testing process make the in all cases Attorney.— The accused ed— must be meaning of ‘proceeding’ within the with- magistrate taken a before 481.10 before which consultation with attorney delay, any § and unnecessary out counsel is to be accorded.” 247 N.W.2d of practice the courts at law entitled to at 393. state, request, may at his of this record person after his

visit such arrest.” Supreme held that The Minnesota Court is to decide who those agree with the rationale of We to a chemical has the whether take test their interpreted which have jurisdictions right attorney to with an before consult per entitling as a right-to-counsel statutes “provided a making that decision that such driving influ under the son arrested for delay unreasonably consultation does not opportunity to a reasonable to ence consult test. If coun- the administration of the ... a deciding to take attorney with an before sel cannot be contacted within a reasonable Vietor, State See test. chemical time, person may required make a the be to v. State (Iowa 1978); Prideaux N.W.2d 828 regarding testing in of decision the absence Safety, Public Minn. counsel.”2 (1976). Although statutory the language in those cases is construed provides 755.17 of the Iowa Section Code language of identical with the § person shall allowed to that an arrested import those we the believe attorney prelimi- with an “before consult ours, deci is similar to statutes arraignment hearing ... without nary and applying those statutes are sions therefore unnecessary place at the delay after arrival inter persuasive to our instrumental and Supreme The Iowa Court of detention.” and its pretation § Vietor, provi- supra, held that to application this case. a person to have entitles an arrested sion to requested, 481.10, opportunity, reasonable law, In Minnesota attorney being re- an before Minn.Stat., speak with provided per- that restrained In a chemical test. to to take quired an decide to with son shall be entitled consult court the concluding the described practicable, and be- so attorney “as soon as circumstances,” substantially “strange In proceedings shall had.” fore other case, under- in this construing provision the Su- identical to those Minnesota 2, 1984, submitting testing." May Ch. legislature expanded Act of In 1978 Minnesota advisory, required implied ac- The consent 1984 Minn.Laws 1546-47. § Prideaux, supra, Supreme Nyflot driver with to inform the Court v. Commis cord Minnesota attorney (Minn. right limited an with sioner deciding 1985), by enacting whether to submit to chemical before the 1984 concluded that 5, 1978, testing. April Act of legislature § Ch. to abandon amendment the intended Prideaux, Minn.Laws 792-93. supra counsel high "... held that under new law 1984, however, legislature the Minnesota longer has even a arrested for DWI by driver advisory requirement provided deleted with counsel consult changed limited foregoing 1978 amendment to submit to chemical whether advisory require the driver be informed attorney testing." at 515. “after 369 N.W.2d an of a consult with lie person’s desire need to time he was asked to submit to the intoxi- consult in such situation: lyzer an statutory right test Kuntz had a attorney. visit with Kuntz was entitled in an “Peace officers find themselves reasonable position attempting have consult anomalous when provisions implied with an whether implement the the intoxilyzer long to take so as making consent after ar- law OMVUI unreasonably did not rest. license which fol- effort interfere revocation testing procedure 39-20, Chapter lows a to submit test- refusal to chemical ing proceeding, is an administrative to N.D.C.C. Kuntz’s of that exercise out, which, already pointed Mi- requesting to call his before tak- randa protections apply.... ing do not But test did not constitute a refusal for test requested, when a chemical purposes revoking his license under peace 39-20, officer—and most often the arres- Chapter See Moore v. N.D.C.C. Div., tee as will be State, Etc., well—knows results Motor Vehicles 293 Or. vital evidence a later criminal trial. (1982); Fuller, supra; 715, P.2d 652 794 Siegwald Curry, v. 313, strange App.2d 40 “This leads circumstanc- Ohio arrest, (Ohio facing Upon Ct.App.1974). 319 381 es us here. Irvin’s N.E.2d the officer advised him of his constitu- oversimplifies assert, It the brief Miranda. rights tional under One of Highway does, for the State Commissioner right to these is the counsel. Yet almost proceedings right that “in civil there is no immediately the officer read to Irvin a Surely, to counsel.” process applies due implied statement from the consent form “[E]very any civil matters. injury man not that he was entitled to counsel. remedy by him ... shall done have due enough “It is reconcile hard us to law_” process Art. Section N.D. seemingly contradictory these state- Const. impossible ments. It must be to do so United Supreme States Court has facing necessity making for one an determined that the Due Process Clause of may immediate decision which later be applies the United States Constitution to a used to convict of a crime.” [Cita- suspension state’s of a revocation driv tion 261 N.W.2d 830-831. at omitted.] Love, er’s license. Dixon v. 431 U.S. State, Fuller v. the later case 1723, 1727, S.Ct. 52 97 L.Ed.2d 172 Transportation, 275 (Iowa 410 N.W.2d Burson, Bell v. (1977); 535, 539, 402 U.S. 1979), Supreme Vic applied the Iowa Court 1586, 1589, (1971). 91 S.Ct. 29 90 L.Ed.2d tor, supra, to license revocation proceed a determination, Our that a has a ing: right attorney limited to consult an with Vietor was that “The rationale of a de- deciding take an before whether to intoxi- fendant could to make lyzer is underscored constitutional his election until he had coun- consulted Yetka, process principles. due Justice Therefore, sel. if a is defendant denied dissenting opinion in Nyflot v. Commis his statutory right this on request, he cannot sioner 369 N.W.2d 512 to have refused held a chemical test. (Minn.1985),cogently urges right that the refusal, premise “If there was no making before may state a li- revoke is decision basic and fundamental: missing.” cense 321B.7 is under § persons “Most are confused about the N.W.2d at 411. many public laws that exist. What understands, gives per- usually expects, Section indeed and trouble, attorney upon son the visit thing with an one is in the first is that request lawyer. “after his arrest.” Kes- is Officer to do consult with a That fundamental, basic, sler’s of Kuntz to intoxi- take the so so lyzer many strug- test occurred after Kuntz’s arrest secured over so centuries of gle tyranny and after Kuntz had been that he informed as to become sacred.” had attorney. to have an At the at 522. 369 N.W.2d ing 22 N.Y.2d a decision take a chemical test. People Gursey, To See also Kuntz contrary, 418- was not allowed to call N.Y.Sup.2d 239 N.E.2d And, Kuntz, attorney. Agnew his unlike (N.Y.1968); at 383- Siegwald, supra, that did not claim he had been denied a statutory right to confer with counsel. Furthermore, test are admis- results Consequently, applicability of the statu proceed- license in both the revocation sible tory right to counsel was not at issue in ings proceedings criminal for driv- supra, nor Agnew, following 39-20-08, ing the influence. decisions of court which considered the test declares a refusal to take a giving effect of not the so called Miranda as evidence in the civil admissible both advisory rights of constitutional and its Thus, criminal proceedings. the civil driving effect on an arrest for under the intermingled consequences criminal are so Hjelle, influence: See Pladson v. to a they perceptibly are not different (N.D.1985); Hammeren v. lay It is under- person. both obvious and Dakota Highway North State Commis perplexed as to standable sioner, (N.D.1982); why he could not consult with an Fields, (N.D.1980). he to take the test when determination Our N.D. § he had had informed his arrest that been C.C., entitles arrested individual have attorney. to an a reasonable to consult with an The circumstances of this case are distin- to take a chemical guishable Agnew Hjelle, from those in recognition test is consistent with our in (N.D.1974), this N.W.2d where (N.D.1974), Hjelle, Lund v. upheld a license for refus- court revocation may, individual a that an within reasonable Allen breathalyzer al to a test. to submit time, effectively a period of reconsider re- Agnew, to asked he would consent when fusal to take a chemical test: test, nothing that he stated would do accuracy a chemical “Since of test attorney. Agnew to his until he talked Chapter depend not under 39-20 does to call his also then allowed who upon being immediately its administered city Upon happened prosecutor. to be arrest, event, or other after an accident conferring Agnew attorney ex- with delay period a a reasonable and thus plained represent nor that he could neither person of time while an arrested consid- Agnew re- him. made no further advise whether or or reconsiders a decision ers quest attorney, talk an to with to a test will not to submit chemical not breathalyzer test was never administered. object Legislature in frustrate Agnew he had appeal On asserted that 39-20, hold enacting Chapter we first told become confused when he was here, where, arrested for one who is that he could remain silent and had a influence in- driving while under the then to consult with but was liquor to submit toxicating first refuses his driver’s license would be re- told that test determine alco- to a chemical to breathalyz- if he did not submit to a voked and later holic content his blood upholding er the license revocation test. requests a chemi- changes his mind and no evi- this court concluded that there was test, subsequent consent to cal blood Agnew was re- dence that confused with prior first refusal the test cures the take gard rights. This also refused to his test is made take the when Ag- in adopt the “confusion doctrine” prior a reasonable time after within new, supra, require which would an officer refusal; test adminis- when such a first person arrested who had been inform an subsequent consent would upon the tered rights that about his constitutional advised accurate; testing equip- when still be apply taking not to the of a chemi- they do readily avail- still ment or facilities are purposes. cal test for license revocation test, for a able; honoring request when a refusal, result following prior will permitted speak person in a first Agnew was or ex- mak in substantial inconvenience attorney of his choice before with the pense police, and when individ- ted to with consult counsel before requesting police the test undergo ual has been whether or not to a test. custody certainly nothing and under for the There is observation 39-20- time provides whole since his arrest.” which for the revo- the privilege at 557. cation of of driving motor a upon testing vehicle refusal to submit to attorney, with an like requires person which that a subject to the right to reconsider a first refusal Implied permitted Consent Act be con- test, a chemical qualified right take is a sult counsel before deciding whether materially hamper cannot be used to or not to refuse to take provided the tests process administering the chemical for in the Act. 39-20, Chapter If test under N.D.C.C. person require arrested is judicially years unable to reach attor- To now almost 28 ney by telephone adoption within a after the of the Implied otherwise Consent time, reasonable he can Act an arrest testing elect between the in- taking terposition of Section refusing between the test and it origin its the aid of an which had the Code of attorney. without Criminal step. Procedure is a backward hold that if an We asks Section 29-05-20 reads: to consult with an before “Delay after prohibited arrest given a to take chemical he must —Attor- accused in ney. all cases must be opportunity reasonable if it to do so does —The magistrate taken unnec- without materially not interfere with the adminis- essary delay, any attorney at law tration test. If he practice entitled courts opportunity reasonable to do so under the state, request, may record of at his circumstances, his failure to take the test is visit such after his arrest.”' not a refusal revoke which to his Chapter 39-20, license N.D.C.C. case, In this no evidence has been sub- indicating that mitted there was unneces- Since was not a reason- allowed sary delay bringing Mr. Kuntz try able to consult with his magistrate, or that prevent- Mr. Kuntz was so, attorney, after he asked to the Com- do contacting ed from attorney securing or missioner’s decision to revoke his license is an attorney’s following advice his refusal reversed. to take test. this LEVINE, JJ., GIERKE and especially interesting concur. It is from to note the information contained in one footnote ERICKSTAD, Justice, dissenting. Chief majority Minnesota, of opinion that philosophy Implied The basic Con- which is as one of listed the states that has sent Act contained in the first sentence interpreted right-to-counsel its as statute of Section which reads: entitling person driving un- for “Any person operates who a motor ve- der the influence a reasonable highway on public private hicle or on or an attorney to consult with to public areas which the has a of test, to take a chemical has concluded now access vehicular use in this state is Legislature after its amended its act to consent, given deemed have and shall provide of driver be informed consent, subject provisions to the with an “after of test, tests, to a chapter, chemical or of testing,” submitting that a driver arrest- blood, breath, saliva, or urine for the longer ed for has a limited DWI even purpose determining alcoholic, oth- to consult with counsel be- drug, thereof, er combination content testing. fore submit to chemical [Emphasis of the blood.” Nyflot v. Commissioner added.] (Minn.1985) 369 512 at 515. any provision Chap- I have not found 39-20, N.D.C.C., ter requires Implied that a I construe our would so Consent subject Chapter permitr Act, N.D. 39-20 inasmuch

291 C.C., operates a ble to states that a who construe the statute to mean that public or highway on a or on anything motor vehicle substantially short of an un- public which the has a private areas to qualified, unequivocal assent to an offi- use in this right of access for vehicular request cer’s that the arrested motorist to have consent to state is deemed take the test constitutes a refusal to do taking subject only provi- the test State, so. Department See Ent v. Chapter Legislature 39-20. If the sions of Vehicles, Motor supra Cal.App.2d [265 interpose such a had intended to CaLRptr. 71 (Ct.App.1968) 726 ]. being arrest- consult with counsel between debate, The occasion is not one for ma- tested, being being ed and or to asked to negotiation, neuver or but rather for a Legislature testing, surely submit simple ‘yes’ or ‘no’ to the officer’s re- Implied amended the Consent would have quest.” 262 A.2d at 42. years expired Act have between Campbell Superior Court, also See v. 106 adoption Implied Act Consent (1971); Ariz. P.2d 685 Bapat v. 479 and the occurrence of the facts this case. Jensen, 220 Neb. 371 N.W.2d 742 conclusion, good I see no reason for (1985); Peterson, Hoyle 216 Neb. distinguishing 216 Agnew Hjelle, (1984); State v. DeLoren (N.D.1974), to limit 291 its rationale to zo, N.J.Super. (1986); 509 A.2d 238 specific say I facts of that case. What Vega, N.J.Super. A.2d today my here is consistent with dissent (1984); McFarren v. Com. Hjelle, Lund v. N.W.2d 552 at 557-560. Transp., (Pa.Cmwlth.1986); 507 A.2d 879 I majority believe the has taken a differ- Petit, (R.I.1978); Dunn v. 388 A.2d 809 direction, proper ent which is a function Cox, (Utah 1979). Cavaness v. 598 P.2d 349 Court, and one I of this would I accordingly, respectfully dissent. in, opposed joining if I not be were proper convinced that it was the direction WALLE, Justice, dissenting. VANDE take, I but am not so convinced. purposes agree For the of this dissent I Pandoli, N.J.Super. Court State v. majority opinion on the facts 262 A.2d concluded that a appears before us there to be no valid right to driver “had no have the advice of why reason not have been should determining whether he permitted to call his before decid- would accede to the insofar as ing whether or to the Intoxi- submit sanction of revocation refusal is con- lyzer test. the matter before us cerned.” The Court reasoned: proceeding is a civil the arrest was for the event, “In for consul- crime, i.e., driving commission of a while necessarily tation with counsel involved a drugs under the influence alcohol delay administration of the test. Hav- violation Section ing purpose in mind the remedial of the 29-05-20, N.D.C.C., ap- therefore Section statute, rapidity the with which applicable very pears by the terms there- passage physiological of time and the cannot, however, agree I that a processes of.1 viola- tend eliminate evidence of ingested statutory right2 automatically system, alcohol the it is sensi- tion of the majority Although entirely opinion me 1. The does not discuss the it is not clear to from argument by majority opinion, the made counsel for the Commission- the I do not understand is, "any majority opinion right at the er that Section 29-05-20 which states that to hold that the attorney practice stage proceedings we are at law entitled to in the courts with which state, concerned, Many request, may right. of record of a this at his visit constitutional majority person gives attorney very upon dis after his cases which the relies arrest” arrested, right right person to coun to visit the not the cuss the issue of the constitutional they right person right specifically premise sel but state their arrested the to have counsel visit statute, grammat- not the Federal or him. I believe the statute is to counsel on the Vietor, construction, See, ically susceptible pre- e.g., 261 I State v. of such a State Constitution. 1978); (Iowa placed upon by majority opin- Prideaux v. State fer the one it N.W.2d 828 247 N.W.2d 385 Minn. ion. 310 Siegwald there Thus in Curry, leads to a conclusion was v. 40 Ohio 313, 318, engaging, despite the App.2d refusal and thus 319 N.E.2d contrary, appears Appeals statement what the Ohio Court of stated: a form of the rule this “It is not a refusal take the proceeding. civil request test for statutory right, the exercise of his ... 39-20-08, N.D.C.C., pro- Because Section telephone attorney during an this reason- a refusal to to a test is vides that submit period in able time which he is determin- in both and crimi- admissible evidence civil test, ing long whether to take the so as proceedings,3 majority concludes nal delay by occasioned such communica- consequences that the civil and criminal are tion is short and reasonable. On intermingled they percepti- are not so hand, questions other where are asked or bly lay persons. this different to But court made, requests including request a previously proceedings has held that attorney, subterfuge consult an 39-20, Chapter are civil in nature test, taking avoid there is a refusal ... separate and distinct from criminal Basically, Abrahamson, whether or not there has been proceedings [State (N.D.1982) a refusal is a factual determination to ], I N.W.2d 213 and do not un- by enunciating made the trial court based derstand the to be facts and circumstances of the “perceptibly lay person” different to a case.” new by standard this court is to review noting After most courts other similar matters. jurisdictions that have considered the issue Furthermore, to refuse to sub- have held that a refusal to submit to a consulting mit to the test after a valid arrest is statu- chemical test without first with lawyer tory. Sec. N.D.C.C. From the constitutes a refusal to submit to law, perspective rights, implied-consent of constitutional a test the test under the held, properly page reported could be administered as a search 388 of the notwithstanding incident to arrest Kuntz’s case: objection. lack of consent or even his greater right “Ohio statutes afford a California, Schmerber U.S. than to consult with either (1966); S.Ct. 16 L.Ed.2d 908 the Ohio or federal constitutions. We

Mertz, (N.D.1985); State v. finding find no error in a a trial court Kimball, (N.D.1985). good-faith request that a of an arrested to exercise his ... majority opinion may be read to attorney, submitting to to call an requested per- mean that because Kuntz a chemical test ... does not constitute a mission talk test, delay refusal to take such where the determining or not to whether submit by the exercise of that statu- occasioned his refusal to the test to submit unduly tory will not or unreason- not the affirmative refusal we have delay ably administering of the test. required by held is Section 39-20-04. not the Whether or Mertz, Kimball, supra; supra. But good is made in faith and reading opinion, that is the to be the exercise of the will whether the issue of whether or not there anwas is, unreasonably delay administering the affirmative refusal to submit to the test test are factual issues to be determined under at least one of the cases cited favor- ably majority opinion, question from the facts and circumstances of each of by fact to the trier of fact. case.” be determined 415, (1976); Siegwald Curry, App.2d Sec. Pre- 40 Ohio See 1983 N.D.Sess.Laws Ch. (1974). proceeding" 319 N.E.2d 381 sumably did not the term "civil hearing on a license revocation include 1983, proof

3. Prior to of refusal to submit to the to submit to the test. failure proceed- was test ings only admissible in civil or criminal if the arrested first testified. fact, inBut this instance the trier of after deciding impact to confine the of its officer, hearing holding found: case pending then rather decided, than to cases previously the court say if he “Mr. Kuntz would would or simply concluded: would not submit to the test. He wanted make a call or talk to his “In the instant case the driver asserted procedures first. The test were started his counsel and that was give sample Therefore, and when the time came to denied. reasoning under the of his Mr. opinion, breath Kuntz did not blow into of this he is not by bound his the machine.” refusal and his license must re- stored.” hearing officer concluded: So, too, “I find Mr. Kuntz failed to State, Fuller Dept. submit to the of Transp., (Iowa 1979), chemical test offered to as directed 275 court, by Deputy Nodland and as Mr. extending the Iowa holding its Vietor, agreed State v. accepted to do when he his North (Iowa 1978), Dakota driver’s license and that’s ex- to the civil proceeding involving sus plained in pension 39-20-01 ...” a license for refusal to submit to [N.D.C.C.] indicated that the rationale of is, course, appeal This from the Vietor was that a defendant could not be decision of an agency administrative required to make his election until he had independent findings we do not make consulted counsel and that if a defendant judgment fact or substitute our for that of was denied this statutory right request, on agency, only determine but whether a he could not be held to have refused a reasoning reasonably mind could have de- by chemical test. The court concluded stat termined that the factual conclusions were ing: supported by weight of the evidence. refusal, “If premise there was no Service, See, e.g., Christenson v. Job may which the state revoke a li- (N.D.1987). N.W.2d 300 missing.” cense ... is evident, however, appears It that the ma Vietor, supra, page In at the Iowa jority deciding is as a matter of law that court stated: the refusal to allow the arrested to question “There remains the as to attorney prior consult with an to determin remedy what should attend a violation of ing whether or not to submit to the test is prior which those courts reached such a conclu sion not a refusal to be tested. may little discussion of the sion. Thus opinion support that least of whether or not the test was constitutional or contrary two cases cited in the Prideaux v. State 310 Minn. after an extensive discus to the whether or not to submit conclusion, rationale or weight 247 N.W.2d albeit with to counsel authority, logic by fer, N.E.2d 351 Prideaux ary rule. chemical test the correct dence of Irvin’s refusal to submit to a OMVUI trial.” 22 N.Y.2d dence thus obtained of the statute should not make the evi § 755.17. We said in State v. We believe (1968) espouse one, Gursey [People is not ^[173] 292 N.Y.S.2d and we now hold evi ] inadmissible. at admissible at an exclusion conclusion is a violation Heisdorf Gursey, Both his (and deciding that it statutory), particular after We have been ratio- exist, that a limited did why nale as to rule should involved, i.e., appears argument intelligently, alternatives, knowledge 4. It to me that a better could of risks be made that the refusal is not an "informed truncated discussion etc.” their refusal," i.e., opposite conclusion, of an "informed con- some of of the rationale their sent” used in the medical field. 'Informed con- may majority opinion in the the courts cited Dictionary sent” defined Black’sLaw "person’s agreement as a rule, agree attempt to announce such a but I something hap- to allow they really espous- with the Vietorcourt that are (such pen surgery) that is based on a full ing exclusionary rule. disclosure of facts needed to make the decision 294 11-06, N.D.C.C.,

apply proceedings. in civil I am un makes it a A misde- these Class willing accept what seems to be almost any public knowing- meanor for servant to involuntary reaction that the exclusion ly perform any imposed refuse to duty ary every rule is the end-all conclusion for law, upon by majority obvious- police gen misconduct. Recent instance ly holds that Section may accept have come to that the erations only gives statutory right not to a exclusion of evidence is constitu automatic to visit arrested with counsel but also cre- tionally required every in each and instance duty upon ates a concomitant the custodial police they misconduct because have ei officer to allow such visitation. Additional- taught forgotten ther or have not been that ly, damages against the actions for individ- simply prophylactic the rule is rule fash deny rights uals who to others are not by Supreme ioned the United States Court jurisprudence. in unknown our States, 232 34 v. United U.S. Weeks Finally, applica- I am concerned with the (1914), ap S.Ct. 58 L.Ed. 652 but not by majority tion of the result achieved plied to State and local law-enforcement opinion. Although attempts majority Ohio, Mapp officers until v. 367 U.S. distinguish Agnew Hjelle, v. 216 N.W.2d (1961) 81 S.Ct. 6 L.Ed.2d 1081 [after (N.D.1974), stated, Agnew at degree]. this writer had received his law page 298: The rule has come under criticism in some opinion, “Before we conclude our we opinions of this court v. State [see (N.D. Klevgaard, proper think it to comment on the civil 1981), Johnson, Implied v. nature of an Consent Statute as (N.D.1981)] and in least one it relates to revocation of drivers’ licens- article the North Dakota Law Review es for failure to take a chemical test to Lockney, Open An Letter determine alcoholic content of blood. As [see Attorney North Dakota Tschida, General Concern we said in Borman [Borman ing Law and the Ex (N.D.1969) Search Seizure ], proceedings 171 N.W.2d 757 Rule, (1986) clusionary 62 N.D.L.Rev. 17 Implied ]. under the Consent Law are civil considered nature. Courts which have may But whatever be debate about generally refusing question hold that application exclusionary rule to counsel to submit to a chemical test until proceedings, appears criminal it to me that refusal, is consulted is an unreasonable extending we should cautious it to about being right in a there counsel civil proceedings right civil in which the denied proceeding. [Citations omitted.]”6 constitutional, statutory, is of origin, particularly ap where the extension pursuant to counsel pears “knee-jerk” to be a reaction without 29-05-20, N.D.C.C., may not to Section data, discussion, support or rationale to it.5 in Agnew, have been considered it never- appears prior to this time a I there are theless that submit alternatives to the police justifiably conclude exclusionary police rule should officer would officers deny persons their that there existed no of an arrested to talk starters, with counsel. For 12.1- to contact counsel before Section Ohio, Fields, (N.D.1980), Compare Mapp the rationale in N.W.2d 404 that U.S. 81 S.Ct. 6 L.Ed.2d 1081 officers were not to allow Kuntz to call length which the Court discussed at its reasons opinion agree counsel. I with the extending rule to the States was not raised in dearth of data or rationale in the cases Furthermore, case. the discussion in Fields majority opinion which the relies and in might on "confusion" which centered majority opinion argued itself. Lest it be giving advisory of the Miranda created reasoning that the same rationale and used in person’s right to remain silent and the arrested Mapp involving extends to this case consequences of his failure to sub- vis-a-vis proceeding, unwilling in a civil I am test. See also Hammeren v. North mit to the accept logic. Com’r, Highway Dakota State (N.D.1982). 6. affirming trial court the decision of the Commissioner indicated it was clear from State or not to submit the test.7 whether

Thus, matter, practical majority as a Agnew. It

opinion just reverses courts a situation that the which

such majority gave only prospec some relies Pri application to their decisions. See

tive

deaux, supra, (on at 398 Peti Vietor, supra. Rehearing),

tion and

For the herein I reasons stated would judgment the district

affirm

affirming High- of the State decision

way Commissioner. Dakota,

STATE of North Plaintiff Alan Duppler, Atty., Stanton, K. States Appellee, and plaintiff appellee. Bismarck, Yinje Firm, Law for defendant GUTSCHE, David Defendant appellant; by Ralph argued Vinje. A. Appellant. No. 1169.

Crim. GIERKE, Justice. (Gutsche) appeals Supreme David Gutsche from Court of North Dakota. violating 12.1-20-03, his conviction for § 29, 1987. April N.D.C.C., felony. only a class A The issue appeal Gutsche raises on is whether he received effective of counsel assistance during proceedings the course of the being charged, led to his arrested and con- gross imposition. sexual We af- victed firm. challenges

Gutsche his defense counsel’s ground, to effectiveness on one wit: failure of his trial to move for proceedings ¡pend- dismissal of the criminal ing against pursuant 12.1-20- § 01(3), 12.1-20-01(3), N.D.C.C. Section N.D. C.C., 1985,1 stated: amended in through may appropriate apply § It be that it crime under 12.1-20-03 12.1-20-08 § 7. is more 12.1-20-12, an which a the first rule in instance in or be initiated within § announced, change in the law (3) parent three learns of the months after here, may ready as defense to damages because the officer have as a subsection was incident of abuse. A new added or civil action for criminal action to the statufe which reads: prior prece- relied on the fact that he alleged "If was a minor or other- victim not, however, dent. opinion I do read the complaint, pros- incompetent wise to make only being to this case. limited may un- ecution or maintained instituted through der 12.1-20-08 provision sections 12.1-20-03 1985amendment deleted alleged offense requiring prosecution section 12.1-20-12 the statute of a unless

Case Details

Case Name: Kuntz v. State Highway Commissioner

Court Name: North Dakota Supreme Court

Date Published: Apr 29, 1987

Citation: 405 N.W.2d 285

Docket Number: Civ. 11273

Court Abbreviation: N.D.