NYFLOT v. MINNESOTA COMMISSIONER OF PUBLIC SAFETY
No. 85-636
Supreme Court of Minnesota
December 16, 1985
474 U.S. 1027
No. 85-152. THOMPSON ET AL. v. FIRST NATIONAL BANK & TRUST CO., ante, p. 895;
No. 85-159. REMMENGA ET UX. v. CALIFORNIA COASTAL COMMISSION, ante, p. 915;
No. 85-204. CHICAGO TRIBUNE CO. ET AL. v. JOHNSON, DIRECTOR, ILLINOIS DEPARTMENT OF REVENUE, ET AL., ante, p. 915;
No. 85-284. HAYES v. CANNON ET AL., ante, p. 903;
No. 85-607. BURCHE v. CATERPILLAR TRACTOR CO., ante, p. 971;
No. 85-5164. COLLINS ET AL. v. ILLINOIS, ante, p. 935;
No. 85-5171. WILSON v. LOUISIANA, ante, p. 911;
No. 85-5195. GREEN v. SCHWARZER, U. S. DISTRICT JUDGE, ante, p. 921;
No. 85-5338. COLLINS v. UNITED STATES, ante, p. 922; and
No. 85-5456. BODINE v. DEPARTMENT OF TRANSPORTATION ET AL., ante, p. 923. Petitions for rehearing denied.
No. 84-6962. CAPE v. FRANCIS, WARDEN, ante, p. 911. Motion for leave to file petition for rehearing denied.
DECEMBER 16, 1985
No. 85-636. NYFLOT v. MINNESOTA COMMISSIONER OF PUBLIC SAFETY. Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.
JUSTICE WHITE, with whom JUSTICE STEVENS joins, dissenting.
Shortly after 1:30 o‘clock on the morning of September 23, 1984, appellant Janice Nyflot was arrested for driving under the influence of alcohol. She immediately requested that she be allowed to speak with an attorney, but this request was denied. She was then taken to the local law enforcement center. There, she was advised that state law required that she be tested to determine if she was under the influence of alcohol or a controlled substance and that refusal to allow such a test would result in her driver‘s license being revoked for a minimum of one year. She was
After being thus advised, Nyflot informed the police officer that she would not submit to testing without first speaking to an attorney. She was again told that she would not be allowed to speak with an attorney before deciding whether to take the test. She again declined to consent to the test. The police officer then informed her that she had effectively refused the test and allowed her to contact her attorney. Immediately after contacting her attorney, she indicated her willingness to take the test, but she was told that she had been deemed to have refused it and could no longer consent. Her license was then revoked for one year based on her refusal.
The state trial court upheld the revocation against Nyflot‘s challenge that she had a right to counsel for the purpose of determining whether to consent to the blood alcohol test, which right had been unconstitutionally denied. The Minnesota Court of Appeals reversed, holding that a limited right to counsel was provided by state law. 365 N. W. 2d 266 (1985). The Minnesota Supreme Court, with two justices dissenting, reversed again and upheld the revocation. 369 N. W. 2d 512 (1985).
The Minnesota Supreme Court first rejected the Court of Appeals’ conclusion that a right to counsel in this situation was provided by state law. Then, turning to Nyflot‘s federal constitutional challenge, the court held that no Sixth Amendment right to counsel extended to the decision whether to consent to testing. The court reasoned that Kirby v. Illinois, 406 U. S. 682 (1972), concluded that “the Sixth Amendment right to counsel did not attach until judicial proceedings are formally commenced (by indictment, complaint or substitute for complaint).” 369 N. W. 2d, at 516. See also United States v. Gouveia, 467 U. S. 180 (1984). Although acknowledging that this Court has recognized exceptions
Nyflot now appeals, claiming that she had a Sixth Amendment right to counsel with respect to the decision whether to consent to the blood alcohol test. She asserts that in the special context of a driving-while-intoxicated offense, formal proceedings must be considered to have commenced with the issuance of a traffic ticket, which is in essence a summons to appear in court and the functional equivalent of a complaint. Since the ticket could be given before the test (because the driver is not taken in for testing unless she is unable to pass field sobriety or breath tests), the actual police procedures may not be manipulated so as to change the time when adversary proceedings are considered to have begun. Thus, adversary proceedings should be deemed to have been initiated before the test. The right to counsel having attached, Nyflot then argues that the decision whether to consent to the test is a “critical stage” in the proceeding, since it in essence is a decision as to what type of evidence will be available to be used against the driver—the results of the test or the refusal to consent to it. See Gouveia, supra, at 189.
Most of the courts that have considered this issue have rejected the argument that the Sixth Amendment right to counsel covers the stage at which the decision whether to consent to the blood alcohol test must be made. See, e. g., Sites v. State, 300 Md. 702, 711, 481 A. 2d 192 (1984) (collecting cases). A few, however, have found that the Sixth Amendment right to counsel does extend to this stage. See, e. g., Heles v. South Dakota, 530 F. Supp. 646 (SD), vacated as moot, 682 F. 2d 201 (CA8 1982); Forte v. State, 686 S. W. 2d 744 (Tex. App.), review granted by Tex. Ct. App., Oct. 23, 1985, No. 2-84-012-Cr.; State v. Welch, 135 Vt. 316, 376 A. 2d 351 (1977) (superseded by state statutory right to counsel, see State v. Duff, 136 Vt. 537, 394 A. 2d 1145 (1978)). Other courts have found a right to counsel based on state law,
Given these varying results, I would note probable jurisdiction to settle the question presented.
No. 85-5686. GAINES v. MERCHANTS NATIONAL BANK & TRUST COMPANY OF INDIANAPOLIS. Appeal from C.A. 7th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.
No. 85-5761. MIHAL v. JAFFE, JUDGE, CUYAHOGA COUNTY COURT OF COMMON PLEAS. Appeal from Sup. Ct. Ohio dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.
No. D-503. IN RE DISBARMENT OF SMITH. Disbarment entered. [For earlier order herein, see 472 U. S. 1014.]
No. D-513. IN RE DISBARMENT OF NASH. Disbarment entered. [For earlier order herein, see 473 U. S. 931.]
No. D-518. IN RE DISBARMENT OF O‘BOYLE. Disbarment entered. [For earlier order herein, see ante, p. 896.]
No. D-520. IN RE DISBARMENT OF WATSON. Disbarment entered. [For earlier order herein, see ante, p. 808.]
No. D-521. IN RE DISBARMENT OF KLINE. Disbarment entered. [For earlier order herein, see ante, p. 896.]
No. D-537. IN RE DISBARMENT OF KIDWELL. It is ordered that Wesley Earl Kidwell, Jr., of Rockville, Md., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.
No. 84-1076. TRANSCONTINENTAL GAS PIPE LINE CORP. v. STATE OIL AND GAS BOARD OF MISSISSIPPI ET AL. Sup. Ct. Miss. [Probable jurisdiction noted, 470 U. S. 1083.] Motion of appellee Coastal Exploration, Inc., for leave to file a supplemental brief after argument granted.