Nyflot v. Commissioner of Public Safety

difference between calculations judge of the compensation the WCCA employ-

results from the use of the latter’s weekly wage. agree

ee’s adjusted total We dissenting

with the member of WCCA

panel as construed in statute

Lemke and determina- Saukkola applied against

tion of to be the offset

compensation depend- due those otherwise receiving government

ents who were sur- deducting

vivor such benefits benefits portion employee’s average

from the

weekly adjusted, wage, as allocated to Obviously, requires

them. if the statute

application case, any formula in of that Therefore,

does in all.1 we reverse and

remand of the compensa- for reinstatement decision, judge’s prejudice

tion but without employer-insurer’s appeal

to the to the

WCCA on that court’s issues which deci-

sion did not resolve.

Reversed and remanded reinstate- judge’s

ment compensation decision. NYFLOT, Respondent,

Janice OF

COMMISSIONER PUBLIC

SAFETY, Petitioner.

No. C5-84-2030. Court Minnesota.

June 1985.

Rehearing July Denied case, required by opinion present 1. A different result is Minn.Stat. amendment in their in the July applicable as amended effective but it is not since it became effective Coop. employee’s 1981. See Oak Park after the Lindell v. Cream- death. Metis v. Northwest- Co., (Minn. ery, (Minn.1985), Telephone ern Bell 369 N.W.2d here- 355 N.W.2d 710 filed 1984). quoted with. of WCCA Humphrey, III, Hubert H. Atty. Gen., Fabel, Anderson, Thomas L. Jerry Joel A. Watne, Gen., Asst. Attys. Paul, peti- St. for tioner. McCloud,

Samuel A. Roverud, Brian D. Grau, Dean Lanoue, S. William Alan Min- neapolis, respondent. for AMDAHL, Chief Justice. In Nyflot v. Commissioner Public

Safety, 365 N.W.2d 266 (Minn.App.1985), Appeals the Court of reversed an order of sustaining the trial court the revocation of Nyflot’s Janice driver’s license for refusal submit to chemical under Minn. Stat. 169.123 Appeals law. The Court ruled that driv- ers arrested for DWI have limited (1984) under Minn.Stat. to consult deciding with an testing, to chemical submit notwith- standing a 1984 amendment to section 169.- signifying legislative intent to take away .right. granted We the commis- petition sioner’s for Holding review. that a right, driver arrested for DWI has no stat- constitutional, utory or to consult with deciding counsel before whether to submit testing, to chemical we reverse the Court Appeals and reinstate the decision of the trial court.1 September Nyflot On was law- fully deputies arrested sheriff’s DWI and was taken to the law enforcement center in deputies Albert Lea. There the advisory read her the set Specifically, forth in section 169.123. she (a) was told that Minnesota law her to take a test to determine if she was under the influence of alcohol a con- Safety 1. The motion to strike an affidavit from the Public is denied. supplementary brief of the Commissioner of substance; (b) trolled refused, clause, process equal protec- that if she due and the her tion clause of the Federal Constitution. drive would revoked for a year; (c) minimum of 1 that if took she Appeals ruled that al- Court test and the results indicated that she was though legislature apparently intended under the influence of or a con- alcohol away to take a driver’s limited substance, subject trolled she would be to testing, amending counsel before the im- penalties right and her to drive plied advisory was not an effective could be revoked for minimum of 90 a way to do it. The court also made clear in testing,” submitting to (d) “after days; that opinion any attempt by legisla- its she right had the to consult with attor- away statutory to take the limited ture ney by and to made a have additional tests right recognized in Prideaux person (e) that if choosing; of her and own sixth a driver’s violate would probably test, she refused to take a the refusal right to counsel. amendment against would be offered in evidence her at We first addressed the issue-of to Nyflot permitted trial. insisted that she be implied in counsel consent cases in State deciding, to call her before but Palmer, 302, 291 Minn. 191 N.W.2d 188 deputies explained to her that the law had (1971),and held that a no consti- driver has changed and that she did not have that tutional to consult with counsel be- right. Nyflot agreed take at first deciding fore chemi- whether submit to began deputies and one of the to set Then, Prideaux, testing. supra, cal in we Then, up Breathalyzer machine. after giving construed Minn.Stat. 481.10 as a § ready, Nyflot the machine was said she arrested for DWI a limited driver depu- not take the test. One of the deciding consult with counsel before wheth- refusal, ties told her that that was a and er to submit to chemical Section deputy began taking the other down the provides: 481.10 Nyflot permitted then machine. was persons having All officers or their attorney. talking call her After with her custody person liberty his restrained of attorney, she said that she would take a except upon any charge alleged, or cause deputies of the told her that test. One she danger imminent of es- cases where already had refused and that she could not exists, cape any shall admit resident at- change her mind. torney retained or in of the behalf court, Nyflot’s attorney In the trial ar- restrained, person he de- whom (1) gued that Minn.Stat. § consult, private sire to to a interview at interpreted State, as Prideaux v. custodians, place custody. Such 405, Dept, Safety, 310 Minn. Public restrained, upon request person (1976), Nyflot N.W.2d 385 had a limited practicable, pro- other soon as and before deciding to call her had, ceedings notify any shall be shall to take a test and that the 1984 attorney residing county in the changing implied amendment request him. Ev- for a consultation with (2) advisory change right, and did not ery person officer or shall violate who event, any she had a limited any provision of this shall section the sixth in this situation under counsel and, guilty of a misdemeanor in addition of the Federal Constitution. amendment punishment prescribed to the therefor rejected arguments The trial court these aggriev- person forfeit to the shall $100 sustained the revocation. ed, to be recovered a civil action. stated, Appeals, Ny- importance “The of a driver’s appeal On to the Court of We (1) argued binding that the 1984 amendment license and the decisions which flot effectively exception asked to did not create an must be made driver sub- 481.10 in consent cases or mit to chemical make the chemical- section did, legis- (2) if Prideaux, testing process ‘proceeding’ within change amendment, the meaning the sixth of 481.10 before which consulta- lation violated with tion counsel is to be accorded.” him 9, Pri- at trial. Act of June Minn, deaux, at 247 N.W.2d at ch. 1983 Minn.Laws 1744- added, however, 393. We that if the com- 45. missioner his was correct in contention that changes The 1984 in the advisory in- consent statute forbade even inserting volved advice new to the effect limited consultation with counsel before “requires” Minnesota law statute, testing, chemical then which test, increasing to take a the 6-month revo- was later specific scope, and more its period cation year, removing to 1 the advice Finding would control. Id. no evidence of to the effect that the driver has a limited intent, legislative such we concluded that right to consult an attorney prior a driver arrested for DWI had a limited testing, changing relating advice right under section 481.10 to consult with additional that it so now informs deciding counsel before whether to submit driver that he has a to consult 419-21, testing. to Id. 247 with an submitting “after to test- N.W.2d at 393-94. ing” and to have additional tests by made a 1978, signified In legislature the its person choosing. of his May 2, own Act of agreement by with expanding Prideaux 1984, ch. 1984 1541, Minn.Laws § implied advisory. the Before the 1546-47. amendment, 1978 was the driver informed Appeals, The Court of simply right agreeing that to his drive would be Nyflot, with concluded that the revoked he refused to take a 1984 test and amendment of the right he had that a to have additional law did tests by effectively away take the person right made a of his limited choosing. own recognized to (1976). Minn.Stat. counsel that we The amend- Prideaux. expanded advisory This conclusion ment the to inform overlooks our statement in driver as follows: Prideaux that if the consent stat ute forbade even limited consultation (1) with refused, that if per- testing, counsel before chemical then that right son’s to drive be revoked for will a statute, being specific later and more in its period months; of six and scope, would Because legisla control. (2) that if a taken and test is the re- originally signified ture its adherence to person sults indicate that the is under by ruling amending the Prideaux the ad the influence of or a alcohol controlled visory right to limited include a substance, person subject will be to prior testing, to it makes sense that the penalties person’s right and to intended abandon the Pri- to period drive for a be revoked right by deaux to later amending counsel days; 90 advisory right. this to remove Con (3) person that the has a to con- cluding controls, that the 1984 amendment sult with an but that this we hold that a arrested for driver DWI no is limited to the extent that it cannot longer statutory right a limited even to unreasonably delay administration of the deciding consult with counsel before wheth person test or the will be deemed to have er to submit to chemical test; refused the (4) submitting testing, that after However, argues, Nyflot and the person has the to have additional Appeals apparently agreed, Court of that tests made a of his own choos- she has a constitutional consult ing. counsel this context. Our decision 5, 727, April 1978, 3, Act of ch. 1978 indicate, dictum, Prideaux did 788, Minn.Laws 792-93. argu the decision to submit was 1983, In warning ably prosecution. added a a stage” “critical Minn, 411-14, if the driver refused take a 310 247 N.W.2d at 389-91. refusal dispute would be offered evidence At that time there still some was

516 “interrogation,” for which the prosecution applies when a was commenced sixth purposes attachment express questioning has defined as Court Illi- Kirby v. to counsel. police ámendment or or other words actions reason 1877, nois, 682, 92 S.Ct. 32 406 U.S. likely ably incriminating to evoke an re (1972), L.Ed.2d 411 which concluded Innis, sponse. Rhode Island v. 446 U.S. the sixth amendment to counsel did 1689-90, 291, 300-02, 1682, 100 S.Ct. 64 judicial proceedings are not attach until (1980). L.Ed.2d 297 In South Dakota v. indictment, formally (by com- commenced Neville, 553, 15, 459 U.S. 564 n. 103 S.Ct. plaint complaint), a substitute was 916, 15, 923 n. 74 748 L.Ed.2d plurality opinion. Since it has then become Court made it clear that “in the context of a of the Justices of clear intoxicated, driving an arrest for while support the Court States United police inquiry suspect of whether the will espoused by plurality Kirby. view take blood-alcohol test is not an interro — Gouveia, -, v. States U.S. United gation meaning within the of Miranda.” 2292, (1984); S.Ct. 146 Es- L.Ed.2d course, (as opposed Of if the arrest 454, 1866, Smith, v. 451 U.S. 101 S.Ct. telle detain) temporarily a driver for DWI Illinois, (1981); L.Ed.2d Moore v. him, interrogate they give then must U.S. L.Ed.2d warning, him Miranda if the statements (1977); Williams, v. Brewer U.S. are be admitted in evidence later. Ber 51 L.Ed.2d 424 97 S.Ct. — U.S.-, McCarty, v. kemer 104 S.Ct. Arizona, Miranda 3138, (1984). 82 practical L.Ed.2d 317 As a 1602,16 (1966),gives 86 L.Ed.2d a S.Ct. 694 matter, police it makes sense for not to in right defendant a the case of interrogate an arrested until driver after interrogation though custodial even custo completing part interrogation dial occurs before the defend investigation danger that because formally charged complaint ant is warning driv the Miranda will confuse the opinion In a indictment. footnote his State, Dept, Highways er. See v. Beck Gouveia, Rehnquist Justice states that the 483, 487,192 441, ey, 291 Minn. N.W.2d 445 right to counsel connection with custodi (1971). interrogation required al in Miranda and Illinois, 478, Escobedo v. 378 84 U.S. S.Ct. process equal protec The due 1758, (1964), 12 only 977 L.Ed.2d was the arguments by Nyflot are tion advanced arguable deviation from the usual rule that process also without merit. Under the due the sixth right amendment to counsel is clause, right fairly a defendant has a to a triggered until the commencement of lineup conducted that is not so unnecessar adversary proceedings. judicial 104 S.Ct. ily suggestive very a create substan (“we at 2298 n. have clear 5 made that we irreparable tial likelihood of misidentifica required counsel Miranda and Escobedo 98, Brathwaite, tion. 432 Manson v. U.S. protect order to the fifth amendment 2243, (1977); 53 L.Ed.2d 140 Neil S.Ct. privilege against self-incrimination rather 375, 188, Biggers, 409 U.S. 93 S.Ct. than vindicate the sixth amendment right L.Ed.2d 401 But the to coun counsel.”). Thus, it right to is clear that suspect lineup sel that a has at a comes unlikely Court other is to find situa right from sixth amendment that a requiring triggering tions judicial proceedings after attaches of a counsel before formal initiation formally have commenced. Moore v. Illi prosecution. 224-27, nois, 458, S.Ct. 462-64, (1977). Similarly, It clear L.Ed.2d is also process require giving due does not recognized counsel does not Miranda a apply questioning to the limited arrested driver to consult with of driver deciding to determine if he will consent to a chemi counsel before whether to take says required cal test. the law The Miranda counsel test he take, particularly properly where he is ad- decision for which the advice of counsel vised that he is to take it. arguably But, could be useful.3 there be- ing no under the constitution to con- equal protection argument also sult context, with counsel in this the deci- has no merit. All arrested drivers —those sion provide whether or not who can afford and those counsel who can one legislature for the to make. Satisfied equally. Contrary not—are treated legislature that the clearly has and effec- what argues, suspected defendant drivers tively expressed its intent that arrested of DWI differently are not treated than drivers given right, not be we reverse suspects of other crimes. The same rule as the Court of Appeals and reinstate the to the triggering of the sixth amendment decision of the trial court sustaining the right to applies counsel to all criminal de Nyflot’s revocation of license for unreason- Further, fendants. there is a rational basis ably refusing testing.4 to submit to denying permission drivers to consult deciding with counsel before to submit to Reversed. As the United States KELLEY, JJ., SCOTTand special- concur Court reemphasized in South Dakota v. ty-

Neville, 459 U.S. 103 S.Ct. WAHL, JJ., YETKA and dissent. (1983), 74 L.Ed.2d its decision in California, Schmerber v. 384 U.S. SCOTT, (concurring Justice specially). “clearly L.Ed.2d Although it Ny- seems unfair that Janice allows a suspected State to force flot could not call her for sound driving while intoxicated to submit to a and trusted advice when confronted with blood legislature, alcohol test.”2 what questionable she considered advice therefore, repeal could police, clear, it is now after the recent law and direct officers to administer amendment to Minn.Stat. suspect’s chemical tests will. 2, that this exactly what the Id. The obvious reason the 2, 1984, 622, intended. May Act of ch. implied chosen to retain the consent law is 10, 1541, 1984 Only Minn.Laws 1546. a to avoid § the violent confrontations which constitutional could could restriction overrule people occur when are forced to sub legislative this 559-60, mit to result: one has the U.S. at Id. 459 103 attorney legislature’s consult an “after at 920-21. The decision submitting people testing.” to let Minn.Stat. ordinary refuse in the 169.- case § 123, 2(b)(4)(1984). It not be take a seems clear to forced to test does not mean me that a defendant has a that the constitutional issue has to re been though fuse. California, Even arrested drivers do answered v. 384 not Schmerber refuse, 1826, 757, a they have do 16 have an 86 S.Ct. L.Ed.2d 908 important make, (1966), progeny. decision to the kind of says: its Schmerber advisory recently 2. Schmerber was even reaffirmed more what the tells the driv- —Lee, U.S.-, 1611, course, likely in Winston v. er. 105 S.Ct. Of some are more drivers upholding advisory 84 L.Ed.2d 662 case a feder- believe the ney. comes from an attor- injunction surgical al district court’s re- moval of a bullet the chest of an from armed 4.Nyflot’s expression willingness to of take the robber. attorney test after she talked with her was an attorney may consequences 3. An attempt the driver of the ineffective the advise con- to avoid of State, sequences consequences Safety Dept, of refusal and of her refusal. Public v. of 428, taking failing (1976); may Early, the test and it. He also 310 402 Minn. 247 N.W.2d not, Palmer, 302, 308-09, advise State v. test. He 291 Minn. the driver to take decision, 188, ("the (1971) subsequent ethically testing to this advise the N.W.2d 191-92 officers law, driver not to take since the 'to as now should not be await the driver’s interpreted, requires place’ driver to take the test. convenience of a different time or short, attorney may requirement.”) statutory In tell what the the driver is submit to the question opin- squarely presented majority “The is there advice of counsel. Both the fore, analysis intro ion and the dissent address these on the chemical issues in evidence in this case should have the merits. duced of an product been excluded as the uncon This does not case involve a criminal stitutional search and seizure.” 384 U.S. prosecution driving for under the influence 766-67, 86 S.Ct. at 1833. The intoxicating liquors. of It is a civil action alcohol blood is a Fourth Amendment mat to revoke a driver’s license. See Goldswor ter, a search and seizure. There is no Department thy Safety, v. State Public of constitutional to consult-an State, 46, De (Minn.1978); 268 N.W.2d a search is conducted. This issue is before partment Highways Beckey, v. of by the therefore resolved determination 483, 486, (1971). Minn. N.W.2d intent, by legislative as discussed ma whether, The issue us is not in a jority, agree. with whom I prosecution, DWI could criminal the state precluded grounds on constitutional KELLEY, (concurring specially) Justice introducing appel from evidence of the refusal, concur in pre-testing the result reached lant’s after denial of and, majority, accordingly, reverse consultation. This case does not view, appeals. my court of In demand that we determine the constitution correctly leg- ality (1984) that the decided Minn.Stat. subd. 2 § of. could, did, islature state attempt amend should the to introduce the statute limited con- test forbid even refusal criminal DWI In prosecution.1 sultation counsel before chemical test- this civil action it seems amendment, being ing. patent later in me that discussion of constitu specific supplants and more scope, precepts By very time tional is irrelevant. its meaning proceeding wording, found in sixth amendment to the Unit (1984). Prideaux Minn.Stat. See prefaces ed States Constitution § State, Department Safety, Public words, therein ensured with the “In all * * Const, (1976). prosecutions Minn. 247 N.W.2d criminal *.” U.S. Therefore, pre- pro Commissioner amend. This license YI. revocation civil, revoking cluded from appellant’s ceeding drivers not a criminal action. Likewise, for her license refusal to such Article Section 6 of Min submit Constitution, assuring 169.- Minn.Stat. nesota assistance counsel, In my opinion, prefaced, “Rights that should of accused case, this prosecutions.” resolve and no further discussion art. Minn.Const. Moreover, of the constitutionality of the amendment Article 7 of Section necessary appeal. states, is for of this the part, resolution Minnesota Constitution in person “No shall be held to for a answer The court of clear in appeals made process offense without law criminal due of any legislature attempt by its view the * * Minn.Const. art. 7. the Since away prior take limited civil, here is in a issue raised not a criminal would sixth violate the driver’s I proceeding, deem the dis constitutional amendment to counsel. Before this dissenting cussion in both the and court, however, Appellant Nyflot advanced premature, and, opinion impor to be more arguments process additional and due tantly, irrelevant to the issue before protection equal under both state court. federal and constitutions are violated driving amendment, driver arrested for the influ- By legislature under the 1984 intoxicating (DWI) that, liquor clearly ence is not has evinced in an intention “right” pre-testing cases, least, afforded the limited drivers’ revocation a driver prosecution, prosecution 1. a criminal In DWI Minn.Stat. admissible into evidence in a * * part, provides appropriate this section “[ejvidence of the take a test is refusal to thus longer has a limited 3. The decided that for DWI no arrested more chemical tests statistical data as prior to decid- consult with counsel right to a result thereof secured from drivers sus- Since ing to submit driving under the pected of while influence action is civil driver’s revocation that a conviction for are desirable and amendment to since the sixth nature and driving is easier to obtain with such drunk and Article States Constitution the United tests. of the Minnesota Consti- 6 and 7 Sections pro- to do with tution have Consulting attorney an 4. results ap- court of ceedings, I reverse the being undertaken as in fewer tests illus- peals. that, prior to the trated the fact

amendments, refused take test 33% whereas, amendments, following YETKA, (dissenting). Justice averaged refusal rate 24%. recognize fully I respectfully dissent. Therefore, intends driving a serious national is that drunk suspected for drunk everyone arrested be dealt with problem which should driving required to should be take the test vigorous enforce- through laws strict consulting attorney. before an must, however, problem be ment. The arguments spurious I find such and with- the confines of law combatted within support contrary, out in the record. To the and without demean- and the constitution support opposite in the record the facts legal profession. ing the conclusion. state, any person police custody In this I. wrongdoing statutory has a accused of outset, important it is to bear At attorney. Since right to consult with my is all about. In mind what this case our statutes have that: one opinion, question it is not a of whether persons having in their All officers or tougher penalties is for or laws person liberty of his custody a restrained question nor it a for drunk drivers charge alleged, except upon any or cause it easier for law whether a law makes danger imminent of es- in cases where to remove drunk driv- enforcement officers exists, any admit resident at- cape shall sole issue in this ers from the road. The torney retained behalf person by the restrained, case is whether a arrested de- or whom he person driving suspected consult, drunk has a interview at private for to a sire to custodians, custody. legal place to consult an Such or constitutional restrained, as request person deciding upon whether to submit pro- and before other practicable, soon as alcohol concentra- to chemical had, any notify ceedings shall be shall opinion our tion. I would hold that county of the residing in the State, Dept, Safety, Prideaux v. Public with him. Ev- request for a consultation Minn. 247 N.W.2d 385 shall violate ery officer or who ought to followed. good still law and this section shall be any provision of something like argument The state’s and, in addition guilty of a misdemeanor this: therefor punishment prescribed to the Prideaux, more 1. After our decision person aggriev- to the shall forfeit $100 right to consult an people asked for the ed, in a action. recovered civil to be submitting chemical to before (1984). statute 481.10 This Minn.Stat. § previously. testing than counsel for amended. As has never been admitted, Legislature the 1984 Legislature amended the state 2. The 1984 the proposals to amend several presented to advise longer require no officers was law to the specifically 481.10 to exclude right to counsel section they have a people that situation, rejected them but implied consent submitting to tests. 520 Today, by effect, the limiting

all. statute’s defendant to have surgically bullet re- effectively this court has amended the stat- to moved determine if it was shot from legislative ute without v. Sheppard, robbery authorization. Price gun); victim’s 250, (1976) (Min- 307 Minn. 239 N.W.2d 905 majority’s merely rationale is that recognizes right privacy; nesota to intru- changing language right the to about coun drugs sive cannot be administered to nor advisory, sel in the the surgery performed patients can on explanation of the DWI law read sus mental consent). institutions pected drivers, without drunk the some United States Supreme already Court has changed how the right substantive on law recognized testing separate pri- couhsel wholly embodied in a raises statute, vacy issues. Prideaux, California, Schmerber v. In section 481.10. 757, 405, 385, 1826, Minn. U.S. N.W.2d court S.Ct. this un L.Ed.2d (1966). agree equivocally right held that that the require the state guaranteed applies under section tests under certain circumstances in which allegedly required when drunk driver the state’s outweighs interest the intrusion testing.1 to submit to chemical on privacy. We reached the individual’s As Schmerber spite noted, this however, conclusion of the fact just because the “Constitu- required officers not were then tion does not forbid the States minor [sic] allegedly advise an any drunk driver of body intrusions into an .individual’s right 169.123, to counsel. Minn.Stat. stringently way § limited conditions in no 1978, (1974). In the subd. did permits indicates more substantial advisory amend the to conform with intrusions, the or intrusions under other condi- requirements of section 481.10 and Pri Id. at 772, Here, tions.” 86 S.Ct. at 1836. 5, deaux. Act April ch. § step; they state taken that extra (codified 1978 Minn.Laws 792-93 and denied the have test 169.123, 2(b)(3) (1978)). Minn.Stat. subd. to counsel. Thus, the fact that an person accused was Although privacy compre- is “the most of that in way no enhanced informed of rights hensive and the most valued itself; rather, or diminished men,” v. Olmstead United civilized advisory person ensured that States, 438, 478, 564, 572, 277 U.S. S.Ct. intelligently By exercise it. con (1928) (Brandéis, J., 72 L.Ed. 944 dissent- trast, would limit the ac ing), government it is not absolute. The cused’s substantive because the ad can intrude on privacy one's if the intrusion visory rights. now her of her misinforms is reasonable. Reasonableness is deter- by balancing mined the individual’s inter- II. ests the state’s interests. testing Chemical under the statute DWI include, first, The individual’s interests attempt by is an the state to seize evidence. “the extent procedure may which the seizures, Unlike however, most evidence threaten the or safety health the individ- of the accused must be invaded — Lee, ual.” Winston -, to obtain the by drawing evidence either 84 L.Ed.2d 662 blood, breath, sampling collecting urine. Denying requiring access to counsel while physical When the state seeks obtain a chemical test does not threaten indi- evidence from the person, accused’s vidual’s life or health. The first factor privacy may accused’s limit the does enter the analysis. into collect the evidence. Win- state’s — Lee, ston v. U.S.-, 105 S.Ct. The second factor “the extent of intru (state (1985) 84 L.Ed.2d 662 upon cannot force sion dignitary individual's inter contention, Contrary (1974) 2(a) state’s 2 (1984). Minn.Stat. amendment simply changed did not make chemical man- The 1984 amendment datory. mandatory advisory accurately Chemical has been to reflect more the sub- 169.123, along. Compare all Minn.Stat. § stantive law. ests . An example, Id. intrusion on one’s consulting after with an attor- dignity damages is one which “the individu ney, Nyflot wanted to take the test she had personal al’s privacy sense of and securi earlier refused. The fact that the number ty.” Forcing accompa Id. an individual to of refusals has decreased since the new ny police police officers to the station in DWI law went into effect likely more than jures person’s dignity. (citing Id. Duna has to do the doubling penalty York, way v. New S.Ct. for refusal year. from months to a (1979)). 60 L.Ed.2d 824 Under the person suspected The driving of drunk law, interpreted as generally average an citizen in totally majority, police only pluck can not us new, confusing, and uncomfortable situa- highway drag from the us to the sta dignity, tion. One’s dignity of a free house, tion but also hold us incommunicado citizen to determine rights one’s and obli- until we submit to or refuse chemical test gations through consultation awith trusted ing. forcing police If an individual to a accusers, counselor rather than one’s digni station alone is an intrusion on one’s gravely upon. grave intruded This intru- ty, holding top someone incommunicado on against, best, sion is balanced at a weak it of makes intrusion all the more se ill-supported state interest. The state state, vere. Such are the tactics of a has failed to show that the intrusion is respectful not of a free state of an individu reasonable; thus, denying counsel is consti- dignity. I majority’s interpre al’s find the tutionally invalid. grave dignity tation a intrusion on the the individual. grave

This III. intrusion on an individual’s dignity weighed against must be the state’s majority argues that the chemical denying interests. The state claims that stage is not a critical in a criminal right to counsel will decrease the number proceeding triggers which one’s Sixth of refusals to take chemical test and disagree. Amendment to counsel. increase the number DWI convictions. While, out, majority points as the it Even consultation with an does justices seems that most of the on the refusals, increase the number of those who support United States Court Minn. year. refuse lose their licenses for a Illinois, rationale Kirby v. 406 U.S. Stat. subd. 4 Either 32 L.Ed.2d 411 way, the severely punished driver is to counsel does not attach until relatively the state unharmed. Even with- judicial proceedings formally are com- out the chemical the driver can still be menced, change this does not the fact that driving convicted of while intoxicated. Kirby shortsighted rationale is and ar- presented The state no evidence that con- bitrary. long recognized court This attorneys anyway sultation with affected shortsightedness, our evidenced either the test results or the deci- accused’s extension of the to counsel to areas sion whether or not to take the test. The traditionally thought of as civil. Cox always to counsel has limited so been Slama, (Minn.1984) (civil N.W.2d does not interfere with chemical contempt hearings); Bashaw, Hepfel v. Minn, Prideaux, testing. at (Minn.1979) (paternity N.W.2d 342 hear- phone 394. A N.W.2d at short call to an ings). Nonetheless, Kirby, even attorney, ap- so that the can be accused process should con- prised obligations by of his a third stage pro- sidered a critical of the criminal party, up enough will not take time to cess. affect the accused’s concen- blood alcohol trial to counsel attaches before significantly. presented tration The state defendant, for the obvious reason that a authority support proposition no state, standing put consulting makes the alone accused case, waived, likely advantage. Rights more to refuse In this an unfair ei- Minn, ignorance through ther agree out of or intimi- at 247 N.W.2d at 389. I dation, because a defendant is denied coun- Appeals they with the Texas Court of when trial, gives sel before the state an unfair write, say “It stretches reason to this is not Alabama, advantage. See Powell stage pretrial proceeding.” a critical (1932). U.S. L.Ed. 158 State, (Tex. Forte v. 686 S.W.2d pretrial investigation When the reaches a . App.1985). stage, “critical” to counsel at- taches. The United States Court IV. stage has defined that critical as: “[T]he guaranteed accused is that he need not persons Most are confused about against any stage stand alone the State at many public laws that exist. What the prosecution, informal, of formal or understands, usually expects, and indeed is out, court or counsel’s where absence trouble, thing that one is the first might derogate from the accused’s lawyer. do is consult with a That is Wade, a fair trial.” United States v. basic, fundamental, so so and secured over 1926, 1932, 87 S.Ct. many struggle tyranny so centuries of with L.Ed.2d 1149 toas become sacred. What kind of mes- sage Although does the decision Kirby progeny and its seem to then send that, “Yes, says, you indicate save for Miranda situa- out? It have the tion, proceedings counsel, formal must com- be not until have but we all the evi- menced before the to counsel at- you.” argues dence to convict The state taches, ignores such a view the realities of you permit that if to be con- consent, situation. The fact here, you sulted will have to one to allow consent is labeled a “civil” be consulted before a search warrant Prideaux, proceeding dispositive. is not exercised or a search one’s auto Minn, 247 N.W.2d at 388. As clothing pursuant can be made to an out, points testing the state is the argument arrest. That too is false. This best evidence for a criminal DWI convic- bodily case differs because it involves a fact, reading tion. In positive- a over .10 is intrusion. is, essence, ly damning; it a conviction. popular today, It is has been over step The next for the is to ticket centuries, lawyers, to be critical of but ticket, suspect. in essence sum I must remind the citizens of this state that court, appear mons to is the functional legal judicial system our is most equivalent complaint. proceed of a Formal unique in tyranny a world filled with ings are commenced the issuance oppression. unique What makes it is that and, thus, Kirby, ticket government do a third we have branch of However, to counsel attaches. since the excesses, to act as a check and balance on driver is not taken in for unless legislative executive and branches to perform sobriety unable to field tests or to protect tyranny individuals pass preliminary breath officers abuses of those branches. Our constitu- probable have cause to arrest the driver purpose. tion was drafted for that Some- given. before the chemical test is The tick lawyers prevailed upon repre- times are easily given upon et could arrival at the unpopular unpopular sent causes and highway. station or even out on the clients, they so, but because do we are police happen fact to follow a better for it. procedure whereby charging formal is done I, therefore, implication resent the merely after the chemical test consulting one’s is a barrier to law manipulation system. This court removing enforcement or to the drunk driv- said in decision Prideaux: “[T]he highway. to take er from the There is not argu or refuse chemical one ably competent stage’ driving-under- a ‘critical shred evidence to bolster proceedings.” Prideaux, argument. the-influence Good law enforcement is the work, permitting police strong prose- amendments as still the to strong result of counsel. services, proce- rules of cutorial reasonable

dure, strong counsel. The defense majority Even if the is correct that the honest, strength opposing of forces insures intent of the is clear and that it results. efficient and non-dictatorial deny intended to counsel in the situation here, presented I then strike down when it the state fails to mention What grounds. the statute on constitutional that, 1984 amendments to claims since the majority decision cites the United States law, there have fewer refusals to the been Constitution and decisions of the United also the test is that those amendments take pointing States Court as in the penalty refusing for the test. doubled the direction of a decision that there is no to the a refusal to submit Prior to constitutional to counsel this situa- suspension of test could result in a 6-month position subject argument, tion. That to take the After refusal to license. valid, if it but even what the of a license for test resulted a revocation ignores is that we have our own Minnesota conclude, logical to year. It is far more Constitution. A state is free to offer its therefore, penal- increase in that it was the greater protection citizens in its constitu- ty the denial the rather than tion than is offered the federal law. that resulted in the decrease of counsel This is true whether words the Unit- test. refusals to take the ed state States Constitution consti- Moreover, very argument the state tution are similar or not. facts of this case. uses is refuted Prideaux, although deciding In the case Here, refused to take the defendant at first statutory grounds, clearly on this court kept insisting her the test and on logic it felt stated State attorney. she was talk with her When said, longer Palmer was no valid. We attorney, he advised permitted to call her reflection, “Upon have some as to we doubt All her to take the test! this was accom- continuing vitality of these cases.” Yet, after plished in less than 30 minutes. Minn, Prideaux, at N.W.2d attorney, her she had consulted 388. We further said: her, effect, “Sorry, you had then advised however, choice, may be a mean- You the chance to take the test. didn’t ingful individual driver. For one to an change you take that chance so now can’t requested example, the driver who is already your mind. Your license has been testing might not to chemical submit logic, In all if it is the test revoked.” reasonably refuse the that he can know wanted, surely a dis- result the state test in certain circumstances where state, way apply the statute. The torted ground officer did not have reasonable argument at oral with the when confronted did requesting arrest or for logic argued, in ef- poor argument, of its of his properly inform the driver not fect, that it made no difference whether the as to his rights, or confused the driver illogical: leg- logical or was State, rights. Dept, Highways v. deny right to coun- islature intended to 192 N.W.2d Beckey, 291 Minn. disagree. sel. Moreover, upon the depending First, circumstances, clear. legislative intent is not de- individual driver’s True, advisory section of it amended the criminal conviction possibility creased statute, section it did not amend loss of his may but worth the 6-month be on his driv- depend not the source license he does If the test. When two stat- license for his livelihood. er’s result- each in an accident harmony read in with driver was involved utes can be death, might more serious other, dealing ing with he face especially when we are the test proceedings in which right to coun- a fundamental such important evidence results could be sel, interpret the 1984 we can and should instances, Consistent this and its limitations. with him. In the above foresee, immediately opinion, any person others we cannot who is requested driver submit decide whether he will submit to a chemi- might seriously consider re- want in accordance with cal test fusing such situations the test. While right to consult shall have the rare, certainly im- they are lawyer choosing mak- of his own possible highly improbable. or even decision, ing provided that such a arise, When situations do the driv- those unreasonably delay consultation does not binding er make critical and deci- must per- of the test. The the administration regarding sion which right, son must be informed of this and subsequent proceed- him in will affect police officers must assist in its vindica- just ings. This decision is as critical and right con- tion. The counsel will be just binding regarding as a decision provid- sidered vindicated the statement, to make a verbal telephone prior and' ed with a protected by zealously one cur- which is given a time to contact and reasonable ought A to have rent case law. driver If counsel cannot be talk with counsel. in the assistance of his own counsel mak- time, contacted within a reasonable ing the decision about whether refuse person may be to make a deci- regarding testing in the sion absence in Even in the vast of cases procedure The en- counsel. above will competent counsel would advise which adequate opportunity sure an to consult test, the his client to take the valuable any with counsel without substantial not An ar- right to counsel is wasted. way delaying the administration of the confused, dazed, may be rested driver Indeed, department test. counsel for the officer, arresting suspicious of the concedes its brief: possible because of the influ- “ * * * True, a certain amount of alcohol, perhaps ence of but because nearly always spent by an ar- time is accident, injury due to and other reasons. apart from resting officer on matters important chemical-testing Where the specimen obtaining chemical test while unreasonably delayed procedures are not presence. remains in his the arrestee impaired, the driver should have the may suspect’s use of a It be that a knowledgeable advice of benefit readily telephone during such available counsel, him his own who assure delay unrelated would in some his the officer’s statements about up cases not at all hold administration obligations are correct. of a chemical test.” recognition of such a will encour- at 394. Id. at 247 N.W.2d age compliance chemical-testing with the atmosphere procedures in an of funda- Finally, cognizant hesitancy I am mental fairness. public of courts to thwart will ex- (citations 412-13, at 390 Id. at 247 N.W.2d pressed by legislature pursuing when omitted). causes, popular I that even if but believe intended, really its 1984 would, effect, majority opinion amendments, deny spirit the intent of Pri- overrule the that denial would result and felt only years after was written —a deaux convictions, more tests and more it would alleged legislative shocking capitulation to argue proce- that such a quote following lan- be dishonest again intent. really dure is an effective cure drunk guage from Prideaux: driving. really If the seri- were to a limited We have referred above driving, limiting drunk it could more ous impor- Because of the to counsel. honestly subject directly and deal with clarity in im- uniformity and tance of just examples matter. Here are a few plied-consent procedures, indi- we would do: specifically the nature of the what it could cate Attempt 1. to limit the sale and con-

sumption of alcohol rather than ex- Minnesota, Respondent, STATE of tending its use. advertising 2. Limit the on billboards O’BRIEN, Appellant. Richard Neal and elsewhere which now occurs No. C5-84-973. along every highways section of our calling attention to the various “wa- Supreme Court of Minnesota. tering holes” that exist. June 1985. 3. Make a blood alcohol content of .05

or even a trace of alcohol indi- as an influencing

cation of a condition

ability and, thus, of one to drive

violation of the law. Expand programs the educational public

this state and warn dangers of the use and abuse of consequences.

alcohol and its majority argument logi-

To follow conclusion,

cal suppose

passed requiring a law alcohol test blood every necessary case even it were bind, gag, person.

officials to and shackle a

I am horrified vision

presents; yet, possible that is a conclusion.

Surely, image justice that is not the

the United States of America that our na- project.

tion like It should be

particularly offensive to citizens of this

state, prided a state which has itself as

being protecting in the forefront opinion of its citizens. The

majority is more akin prevailing to the laws

in totalitarian states.

Accordingly, I would affirm the court of

appeals.

WAHL, (dissenting). Justice join the dissent of Justice Yetka.

Case Details

Case Name: Nyflot v. Commissioner of Public Safety

Court Name: Supreme Court of Minnesota

Date Published: Jun 11, 1985

Citation: 369 N.W.2d 512

Docket Number: C5-84-2030

Court Abbreviation: Minn.