Tim A. TYLER, Rеspondent, v. COMMISSIONER OF PUBLIC SAFETY, Petitioner.
No. C6-84-447.
Supreme Court of Minnesota.
May 24, 1985.
368 N.W.2d 275
- Respondent shall abide by the Minnesota Code of Professional Responsibility or such other rules governing attorney conduct as this court shall promulgate. Respondent shall cooperate with the Director of Lawyers Professional Responsibility‘s investigation of any allegations of unprоfessional conduct which have or may come to the Director‘s attention. Either respondent‘s admission or a referee finding of further unprofessional conduct shall constitute conclusive evidence of a breach of this order.
- Within two weeks of the date of this order, respondent shall nominate an attorney acceptable to the Director who shall monitor respondent‘s compliance with the terms of the probation. If respondent fails to nominate a supervisor acceptable to the Director, then the Director may, at his option, appoint any licensed Minnesota lawyer acceptable to him as supervisor. Respondent‘s supervisor shall file written reports with the Director at least quarterly, оr at such other more frequent intervals as may reasonably be requested by the Director.
- Respondent shall cooperate fully with the supervisor and with the Director‘s office in their efforts to monitor compliance with this stay and in any investigations of further unprofessional conduct which may arise during the probation.
- Respondent shall initiate and maintain office procеdures which insure that there are prompt responses to correspondence, telephone calls and other important communications from clients, courts and other persons interested in matters which respondent is handling, and which will insure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
3. Respondent shall pay to the Minnesota Lawyers Professional Responsibility Board $500 in costs pursuant to
AMDAHL, Chief Justice.
This is a license revocation proceeding under
1. The parties proceeded under the law as it existed at the time of the accident. We do not consider the effect, if any, of the 1984 amend
The accident was a 2-car head-on collision that occurred at 1:30 a.m. on February 11, 1983, in the southbound lane of Highway 61 just north of County Road 4 in Washington County.1 Tyler, age 25, of North St. Paul, was the driver and sole occupant of one of the two cars; David Robertson, age 32, of Forest Lake, was the driver and sole ocсupant of the other car.
State Trooper Craig Bailey was the first trooper on the scene and therefore became the primary investigating officer. State Trooper Everett Hurd, a trained accident reconstruction specialist, arrived a short time later and began taking measurements, making sketches and doing other things involved in a reconstruction of the accident. Both Tyler and Robertson were still inside their respective cars when Bailey arrived. At one point, as paramedics were trying to get Robertson out of his car, one of the paramedics told Bailey that he could not get a heartbeat or detect any breathing. Although the paramedics “brought him back around,” Robertson remained unconscious and in “very, very serious” condition. The paramedics kept telling Bailey that they did not think Robertson was going to survive.
There were no eyewitnesses other than Robertson and Tyler, the two drivers. Bailey talked with Tyler after Tyler was removed from his car and was lying on a stretcher. Tyler said he had been at the Legion Club in Forest Lake and was driving southbound on Highway 61 when “all of a sudden” the other car, heading northbound with one headlight out, swerved into his lane. Bailey detected a strong odor of alcohol coming from Tyler, noted that Tyler‘s eyes were bloodshot and his speech slightly slurred, and observed that Tyler was jittery and shaky. He concluded that Tyler was under the influence of alcohol.
Bailey obtained samples from both Robertson and Tyler before they were removed in a commоn ambulance. Robertson‘s
On cross-examination of Bailey, Tyler‘s аttorney tried to elicit evidence establishing that Bailey knew before he ordered the blood samples taken that Robertson, not Tyler, caused the accident. Bailey testified, however, that people often lie after accidents and he was not sure Tyler was telling the truth. He testified further that he did not have the benefit of the accident reconstruction becаuse that was not completed until “an hour to two hours after the investigation and the people had already left the scene.” He admitted that he had observed the skid marks in the southbound lane but testified that he could not tell which vehicle they belonged to.
Trooper Hurd‘s reconstruction of the accident, completed (as Trooper Bailey testified) after the drivers had been removed from the scene, indicated to him that Robertson was at fault and failed to indicate that Tyler was at fault.
The record does not indicate whether Tyler was ever charged with either criminal negligence or DWI. In any event, this is a separate civil revocation proceeding under the implied consent law.
The commissioner‘s attorney argued to the trial court that under our cases Bailey had the requisite probable cause to require Tyler to submit to a test, that under our cases the test results would be admissible in either a criminal negligence or DWI prosecution, and that he believed it was proper to allow the results to serve as the basis for a revocation under the implied consent law. Tyler‘s attorney focused his argument on the issue of whether Bailey had probable cause to believe that Tyler was guilty of criminal negligence.
The trial court did not make any findings of fact but concluded that the trooper had probable cause to believe that Tyler was driving while under the influence and that he had committed a felony.
In his appeal to the district court appeal panеl, Tyler claimed that Bailey did not have probable cause to believe that he had committed the crime of criminal negligence and that in any event the test result could not properly be used to sustain a revocation under the implied consent law. The appeal panel did not reach the second issue because it concluded that Bailey did not have probable cause to believe that Tyler had committed criminal negligence.
1. At the outset, we emphasize that the probable cause issue is not a constitutional issue. As a matter of federal constitutional law, the warrantless removal of blood for a blood alcohol test is clearly permitted if police have probable cause to believе that the defendant has committed the offense of DWI and that the removal of the blood is necessary to preserve evidence of the defendant‘s guilt. South Dakota v. Neville, 459 U.S. 553, 558-64, 103 S.Ct. 916, 920-23, 74 L.Ed.2d 748 (1983); Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); State v. Aguirre, 295 N.W.2d 79 (Minn.1980); 2 W. LaFave, Search and Seizure § 5.4(b), n. 19, at 343 (1978 & Supp.1985). Bailey‘s action in ordering the warrantless removal of blood was therefore justified under the constitution. The more difficult issue is whether
A useful starting point in examining this issue is State v. Aguirre, 295 N.W.2d 79 (Minn.1980). The issue there was whether the chemical analysis of blood removed without a warrant and without consent from an apparently intoxicated but conscious driver, who likely was the cause of a fatal automobile accident, was admissible in a subsequent DWI prosecution. We noted that under
if an officer merely has probable cause to arrest a driver for driving while under the influence or driving with blood alcohol in excess of .10% by weight, the statute does not give the officer any incentive to order a nonconsensual removal of the driver‘s blood because only blood removed voluntarily or in compliance with the provisions of the implied consent law will be admissible in any subsequent prosecution for driving while under the influence of alcohol or driving with blood alcоhol in excess of .10% by weight.
Id. at 82. We reaffirmed our holdings in prior cases2 that the purpose of the statute was not subverted by the admission in a criminal negligence prosecution of chemical analysis of blood even if the blood was not obtained voluntarily or in compliance with the implied consent law, so long as it was not obtained in violation of the constitution. Id. at 81-82. We then stated:
[T]he officer was confronted with a situation in which he had probable cause to believe that defendant driver was not only intoxicated but had just committed the felony offense of criminal negligence resulting in death,
§ 609.21 (1978) . In such a situation he knew that it was essential that he obtain the blood sample without delay and without regard to whether defendant would consent to the removal of a blood sample. Accordingly, he did not follow the fоrmality of first trying to obtain defendant‘s consent; instead, he simply ordered the removal of the blood sample, as he had a right to do under the Constitution.Minn.Stat. § 169.121, subd. 2 (1978) , was not drafted with this situation in mind, and the officer was not trying to defeat the purpose of that statute. * * * The test results clearly would be admissible in a criminal negligence prosecution. The fact that the grand jury chose not to indict defendаnt for that offense was a benefit to defendant. Suppressing the evidence and thereby making prosecution of defendant on the less serious misdemeanor charges more difficult would only have the effect of benefiting defendant more without furthering the purpose served by§ 169.121, subd. 2 , of protecting the ordinary conscious but intoxicated driver from nonconsensual removal of blоod.
Id. at 82.
Subsequently, in State v. Speak, 339 N.W.2d 741 (Minn.1983), a prosecution for criminal negligence, we were faced with the issue of what sort of probable cause is needed in the Aguirre-type of case. We stated:
We believe that the probable cause that is needed—assuming that probable cause is needed—is probable cause to believe that the crime of criminal negligence has been committed and probable causе to believe not that the defendant is intoxicated but that administration of the breath test will result in the discovery of evidence that will aid in the prosecution of that crime. Evidence of a defendant‘s drinking is but one of many factors that bears on a determination of the issue of
whether the defendant is guilty of the crime of criminal negligence. As the state points out, ingestion of alcohol in amounts less than those needed to cause gross outward symptoms of intoxication can have a substantial adverse effect on a driver‘s judgment. We need not decide whether it is enough to establish probable cause that a driver who smells of alcohol has been involved in a fatal accident. In this case there was more than just a fatal accident and a driver who smelled of alcohol.
Id. at 745.
In this case there was evidence that the test was taken voluntarily. Specifically, Trooper Bailey testified that he asked Tyler if he would submit to the test and that Tyler said he would. State v. Rossow, 310 Minn. 399, 247 N.W.2d 398 (1976) (upholding a finding, on similar testimony, that the defendant voluntarily consented to testing). However, there was testimony by Tyler to the contrary and the trial court did not resolve the conflict in the testimony.
We therefore address the issue of whether the facts available to Bailey met the test adopted in Speak. We hold that they did. It is true that a fatality had not yet occurred and Bailey could not point to any objective evidence such as skid marks or any information from eyewitnesses to suggest that Tyler caused the accident. On the other hand, he knew that it was a real possibility that Robertson would die, he had evidence that Tyler was intoxicated, and he knew that there had been a head-on collision of two cars. Head-on collisions involving two cars usually do not occur unless at least one of the drivers is negligent. At a minimum, Bailey had a strong reason to believe that a prosecution of Tyler for criminal negligence might result from the аccident and to believe that scientific evidence of Tyler‘s intoxication would be useful in such a prosecution.
2. This case, unlike Aguirre, is not a DWI prosecution but a revocation proceeding under the implied consent law. Tyler argued that even if Bailey acted properly, the test results cannot be used to sustain a revocation under the implied consent law because thе blood was not removed in compliance with the implied consent law.3 The commissioner argues that this issue is not properly before this court, but we disagree. The issue was not addressed by the trial court even though the issue was discussed. Tyler raised the issue in his appeal to the district court but the district court did not address it because it ruled in Tyler‘s favor on the probable cause issuе. Because we have ruled against Tyler on the probable cause issue, we address the issue.
There are two basic ways one‘s license can be revoked pursuant to the implied consent law: by refusing to take a test that is offered or by submitting to a test, the results of which reveal a blood alcohol concentration of .10 or more. Compliance with the procedures of the implied consent law is a prerequisite to revocation pursuant to the implied consent law. It would be improper and unfair to revoke a driver‘s license for refusing to take a test if an advisory were not given. One could argue, on the other hand, that the failure to give an advisory should not make any difference in a case where the revocation is based on test results showing that the driver had a blood alcohol concentration of .10 or more. The advisory is not designed to persuade a driver not to take a test; rather, it is aimed at letting a driver know the serious consequences of his refusal to take a test. When a driver submits to a test he arguably has no reason to complain about the use of the test results to revoke his license. If he had been given an advisory he would have either taken a test or not taken a test. If he had not taken a test, he would be
Affirmed.
YETKA, Justice (concurring specially).
I concur in the result because I believe there is evidence respondent consented to the test.
No. C9-82-1233.
Supreme Court of Minnesota.
May 31, 1985.