*1 573 voluntarily public body prem- and created its on of existence the condition is not reason- ises, ably apparent, or or visible where the condition consti- persons tutes unreasonable risk of harm authorized using reasonably premises pur- to use for the poses intended.” the, general application

This holds court liability prospective application. its rule of tort Municipal University court, in of Omaha case, applies said: “This all causes action aris- following filing ing month a date one date after July opinion,” date is 1969. The case of this more, May years 5 22, 1964, arose be- us than on of the rule announced fore the effective date Municipal University Omaha foregoing necessarily hold reasons that

We negligence its was liable for District No. School May employees 22, 1964. The on demurrer or that its petition properly therefore sustained and the judgment court is district affirmed.

Affirmed. participating briefs. J., Spencer, David J. appellant, Pickard, v. Director of Motor appellees. et al., Nebraska Vehicles N. W. July 18, Filed 1969. No. 37018. appellant. Danielson, for A.

Lester Meyer, Attorney General, H.A. and James Clarence appellees. Duggan, for J. J.,

Heard before Spencer, Boslaugh, White, Carter, C. JJ. Smith, McCown, Newton, J. McCown, *2 original opinion appears p. 13, ante The this case 96. N. W. 2d motion, rehearing for asserts that there are state- original opinion “implying ments that the pursuant may of a test to the be consent law attorney.” conditioned the to consult with an original opinion ap- The statements in the “In were: an propriate request delay factual context, a for brief making accept the decision to or refuse chemical lawyer granted test in order to consult awith be should delay jeopardize is short and does not ** * taking effectiveness of the test. aof chemical is; by Implied test authorized Consent Law not ordi- narily required delayed by request to be ar- permitted legal rested motorist he be to contact (Emphasis ours.) counsel.” difficulty separate pro-

The crux of the is that two ceedings, may one civil and one criminal, follow for arrest intoxicated, while and the criminal proceeding may felony involve either a or a misdmeanor. request At the time arrest and for a chemical proceed- officer be cannot certain ing may ultimately involved, be both them will' be. The civil is for revocation of an operator’s license under Law. The Consent proceeding may operating for a motor ve- intoxicating hicle liquor, under the while influence of § or it be for motor vehicle homicide. See 39-727.01, R. S. R. 1943. proceedings operating

Criminal a motor vehicle intoxicating liquor while under influence of felony, depending involve either a misdemeanor or a upon many how convictions have felony. had before. Motor vehicle homicide is a take chemical made, When test is procedures, refusal to take the test leaves both civil and open. A criminal, still consent to take the test auto matically any possible procedure cancels out civil under Law, but the results the test are proceedings admissible statute the criminal presumptions specified. Coupled from them are complications these is the fact that the Nebraska stat specifically provides: ute “If a so arrested shall provided refuse to submit to the test for in section 39- * * given, § 727.03,it shall not be 39-727.08,R. R. S. 1943.

Because of these involvements, the Scotts Bluff department regularly using mimeographed im- plied According testimony, consent rules. to the these persons rules are read “to all ing that are arrested for driv- They appellant while intoxicated.” were read to the mimeographed in this rules consist of a full *3 page single-spaced material, and the first numbered appellant sentence which was to read was: “1. You hereby have, you right are that advised to an you you may only and if desire call one now.” Not appellant right advised that he had the to call an given attorney; opportunity, he was and made a phone call. present

In the state of the law, there is no constitu- right any proceeding, tional to counsel in including civil the revocation of a driver’s license under the right Consent Law. There is also no constitutional to proceedings counsel minor criminal im- which prisonment may of less than 6 months is all that be im- posed. specific rights There are constitutional which spelled Supreme have been out the United States apply Court which “serious criminal case” where imprisonment of more than months be involved. Attorney General contends that Schmerber v. 757, 384 U. S. 1826, S. Ct. L. Ed. driving establishes that a criminal drunken right there is no constitutional refuse to sub-

viction to a test. The distinctions case mit to blood between that obvious, case” in Nebraska a “serious criminal and the case involved a misdemeanor. Cali- Schmerber provision statutory specified fornia had if blood refused to submit the test the, given. provision specific should In view of protecting right refusal, of our statute defendant’s seem that if a “serious it would obvious criminal case” is involved, submit a chemical test stage becomes critical rehearing

The motion for is overruled. J., C.

White, dissenting. respectfully from I dissent the order of the court overruling rehearing the motion for in this rarely rehearing motion for files a in this court. Attorney points necessity General out the clari- majority fication in this case because the opinion extending implied counsel to consent part create cases will on the confusion en- materially officers and interfere forcement forcement of the law. en- agree.

I ruling The court’s in this case states effect that public highway in an situation a driver on a condition the of the test under until Law he has consulted his attorney. kept It must be in mind that the to drive public highway on a anot constitutional one, and that regulate reasonably deny the State even public highway of an automobile on a under certain conditions. It is fundamental that an proceeding upon consent the refusal to submit to determine, chemical test to ais intoxication civil and procedure administrative and that the United States and *4 guarantees state constitutional to counsel are applicable. §§ 39-727.03to 39-727.12, 1943; R. R. S. Ziemba v. Johns, 183 644, Neb. 163 N. 780; W. 2d Sixth Amendment to the Constitution of the United States;

577 §I, 11, Art. Nebraska; Constitution of v. Finocchairo Kelly, 11 226 2d 58, N. Y. 2d N. Y. S. 2d 181 N. E. 403, 427, certiorari L. denied, 912, 1259, 370 U. S. 8 S. Ct. Sueppel, 405; Ed. 1173, Gottschalk v. Iowa 866; N. W. 2d 575, Schmerber v. 384 U. S. S. Ct. 16 L. Ed. 2d 908. recently supra, This court said in Ziemba v. Johns, *“* * operation may give the same motor vehicle separate

rise to two and distinct One is a licensing procedure by civil and administrative instituted the Director of Motor Vehicles to- determine person’s privilege to drive is The other is a revoked. criminal action instituted in the court to determine whether a crime been committed. Each proceeds independently section the other the out- consequence come one action is to the other.” (Emphasis supplied.) Kelly, supra, only In Finocchairo v. issue was whether the driver was entitled to the advice of coun- deciding sel before to submit or not to submit to a blood test for intoxication. The York New court held: “So far petitioner’s as revocation license for his condi- tional refusal to take a blood test concerned, the con- rights petitioner stitutional were not invaded because of the refusal of his for counsel.” After an extended discussion of the authorities the Sueppel, supra, Iowa court in Gottschalk v. follows: “III. There is no merit to- held as

plaintiff’s contention the deprived process having he was of due of law not opportunity electing to confer with his to consent to a or chemical test to refuse.” authority Gottschalk case was cited as Ziemba supra, Johns, v. and in turn the Gottschalk case cited supra. case, the Finocchairo

Valid as the distinctions are between an prosecution, per- sent and a suasive as are the authorities cited above on the counsel, this case need not rest such distinction. *5 right problem counsel be- denial of the to taking United the of test a blood was fore the leading Supreme case of in the Schmerber Court States supra. case an actual This was v. Supreme United prosecution of Court in which the driving conviction based it a drunk had before States taking upon test of the defendant. of a blood arrested and was Schmerber was defendant notwithstanding the fact that test to submit to blood counsel. the test on the advice of he refused to take test were admitted in evidence The results of the blood objection. due asserted that he denied He was over taking process of the test violated his of law, that against privilege and further since the self-incrimination, objection of based on advice taken over his test was guar- counsel he in denied counsel was fact by the Amendment to the United States Sixth anteed Constitution. Supreme Court affirmed the

The United States taking of viction that the the blood test did and that self-incrimination, involve a matter of since process and self-incrimination not involved in due were taking pro- test constitutional then neither right to counsel. The court said: “This con- vision of (that process clusion due and self-incrimination are not taking test) of a also involved blood answers petitioner’s compelling in claim him to that, submit objection of the test face the fact that his was made advice of he counsel, was denied his Sixth right to the assistance of Amendment counsel. Since petitioner privilege, was not entitled to assert the he greater right erroneously counsel has because ad- strictly vised him that could assert it. His claim is he respect failure his wish, limited to the to left advice, counsel’s reinforced inviolate.” sense, terms, common the above authorities Stated abundantly namely, clear, is so hold what guarantee no constitutional to- counsel has determining com- will whether he him in order to assist privilege to drive ply Law. with the highway, by public declared on a an automobile subject to the public policy Nebraska, requirements regulations reasonable manifestly requirements en- These Consent Law. public policy designed pursuance acted and highways public of Nebraska. safety in the State on the appar- ruling means, case as it If court’s this “appropriate”" ently in an situation which does, that *6 yet condition the defined the driver to be attorney, has his then we a test until he consulted in situation that will result emasculation faced awith if a of the This is so because of the enforcement statute. a to consult his it follows that driver has imagination no is consultation must be effectual and foresee the amount of time It involved. will securing only prevent enforcement officers not from permissible incriminating constitutionally in evidence important driving prosecutions prob- more drunk but it prevent ably effectively disciplining will and control drinking requires It of the borderline driver. the State furnish counsel to a defendant in order to determine comply injects he shall with law. It into the requirement practical enforcement situation a that a police peril may safely at his if officer determine he consulting convenience await thereby legal purpose counsel and risk the defeat of the of the law. to counsel

The issue was not raised in this stage case at I submit, there- fore, that we should either rehear this case, eliminate unsupported appears to me to be what obiter dictum. JJ., concur this dissent. Newton, Carter dissenting. Carter, J., I concur the dissent filed White, While J.,C. point major- is one that needs clarification. there the, difficulty ity opinion states: “The crux of is that two separate proceedings, one civil and one criminal, arrest for follow an while intoxicated, and the proceeding may felony involve either a or a request misdemeanor. At the time of the arrest and arresting chemical officer cannot be certain proceeding may ultimately be involved, or majority opinion whether both of them be.” will places prophesy the burden on the officer to peril proceeding at his the nature of the fol- low the lawyer request and under and when what circumstances a arrest, given Consequently

must effect. the ar- resting attempt proceed lawfully officer in honest an and out an abundance of caution is forced into the position permitting arrested to obtain a lawyer when, he is fact, not entitled to consult his lawyer question at all as to whether or he should take the test. opinion original appeal ap- states: “In an

propriate delay context, factual for a brief making accept the decision to or refuse the chemical lawyer granted test in order to consult with a should be delay jeopardize short and does not effectiveness test.” How does officer, nonlawyer, appropriate know “an when factual con- text” exists been filed, when all the facts have not been determined, *7 way context factual no defined. The statement induces confusion as to the law in a case where the is clear and the action of entirely officer proper. If the case had been determined in this court sole- ly on the facts court, determined there would have uncertainty been arising in the law and no confusion on similar fact future It situations. demonstrates the necessity deciding precise cases on the facts of each leaving any exceptions case and to future decision to or variances from the rule.