No. 87-184
IN THE SUPREME COURT 

### OF THE STATE OF MONTANA 1987

DARRYL GEORGEMEYER, Petitioner and Appellant,-vsSTATEOF MONTANA, Respondent.

APPEAL FROM: DistrictCourt of the Eighth JudicialDistrict, In and for the County of Cascade, TheHonorable JohnM. McCarvel,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Hoyt & Blewett; JohnC. Hoyt,Great Falls,Montana For Respondent:
Hon. Mike Greely,Attorney General, Helena,Montana Barbara Claassen,Asst. Atty. General,Helena



# .Paul,CountyAttorney,Great Falls,Montana Jeff 

# Patricg M lister & Tamrny Plubell,Deputy CountyAttys.

Submitted on Briefs: Aug. 20, 1987 Decided: November 29, 1987 Filed:

### Npli

### T.

+, %f 

### ..--1;

Clerk

### Mr. Chief Justice J. 

### A. Turnage delivered the Opinion of the Court. Petitioner Darryl George Meyer appeals his driver's license suspension pursuant toMontana's implied consent law, § 

### 61-8-402,MCA. We affirm. On March 8, 1987 Montana Highway Patrolman Cal Wylie observed avehicle driving erratically near the Beacon Bar in Cascade County,Montana. Patrolman Wylie pulled thevehicle
over and approached the driver. Wylie testified that he informed appellant Darryl Meyer that Meyer appeared to be under the influence of alcohol. Wylie then offered Meyer a ridehome. Meyer accepted. Approximately one hour later, Wylie again saw Meyer driving his vehicle near the Beacon Bar. Wylie arrested Meyer for driving under the influence of alcohol (DUI)

# . Meyer was taken to the Great Falls Police Station. At the police station, Wylie read Meyer the Montana Implied Consent Law Advisory Form. Meyer indicated that he understood the implied consent form. However, appellant Meyer requested that he call "a friend" prior to taking the breath test. Patrolman Wylie responded that Meyer could not make aphone call before finishing "thepaperwork". At trial Wylie testified that paperwork actually meant completion of Meyer's DUI arrest. After Wylie denied Meyer's request to call a friend, Meyer refused to take a breath alcohol test. Patrolman Wylie seized appellant's driver's license and the Montana Department of Justice suspended Meyer's license pursuant to S 

### 61-8-402, MCA, which provides in pertinent part:Chemical blood, breath, or urine tests. (1) Any person who operates a vehicle upon ways of this state open to the public shall be deemed to have given consent 

# . 

# . . to a chemical test of his blood, breath, or urine for the purpose of

### determining the al.coholiccontent of his blood if arrested by a peace officer for driving or in actual physical control of a vehicle while under the influence ofalcohol.

(3) 

### Ifa resident driver under arrest refusesupon the request of a peace officer to submit to a 

### chemical test designated by the arresting officer as provided in subsection (1)

### of this section,none shallbe given,but the officer shall,onbehalf of the department, immediately seize his driver's license. The peace officer shall forward the license to the department, along with a sworn report that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol and that the person had refused to submit to the testupon the requestof the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5)

# .

(5) The following suspension and revocation periods are applicable upon refusal to submit to a chemical test:

(a) upon a first refusal a suspension of 90 days with no provision for a 

### restricted probationary license;

On March 16, 1987 appellantMeyer successfullypetitioned the District Court to restore his driving privileges pending hearing. Following a May 11, 1987 hearing, the District Court ordered that Meyer's driver's license be suspended for 90 

### days. Meyer appeals the ord.er of the District Court.ISSUE 1 Did the District Court err when it held that Meyer refused totake a breathtest? Appellant Meyer contends that he did not refuse totake
a breath test. Appellant argues that substantial credible evidence does not support the findings of the DistrictCourt thatMeyer refused totake a breath test. The following conversation occurred atthe Great Falls Police Stationbetween Meyer and Patrolman Wylie:

OFFICER: 

# ... Do you understand what I have read to you, Mr. Meyer?
MEYER: Yes. OFFICER: Flould you like totake a breath test for me? MEYER: F7el1, can I call a 

### -- call a friend of mine? OFFICER: For what?
MEYER: For 

### - I want toask him a question. OFFICER: What 

## -- what does that have to do with taking a breath test?
MEYER: WellI just want tocallhim. OFFICER: Well, I'll tell you what. You can call him after

### we are done with the paperwork. I have toknow right now whether ornotyou want totake a breath test. MEYER.: No. I don't want totake the breath test right now, but I will call this person and 1'11 maybe take it then. OFFICER: Why would you have to call somebody to find out whether or not you are going totake the breath test? I'm confused.MEYER: Well can't Imake a telephone call?
OFFICER: When we are finished with the paperwork you can

### -- MEYER: --okay-- OFFICER: -make as many telephone calls as you want. But I do need to know right nowwhether

### you 

### ------ will take a breath test. ------ MEYER: No. 

### - OFFICER: Okay. You realize that I am going to 

### -- - seize your Montana Driver's License.

# ..(inaudible)
MEYER: Yes. [Emphasisadded.] 

### - Previously we held that a defendant who repeatedly requested to speak with an attorney after being asked to submit to a breath test refused by implication to take the test. Johnson v. Division of Motor Vehicles (Mont. 1985\, 711 P.2d 815, 817, 42 St.Rep. 2045. In the case at hand, appellant Meyer requested to call a friend after being asked to consent to abreath test. Appellantwas told by Patrolman Wylie that he could not call his friend prior to taking the breath test. Appellant Meyer then refused to take thebreath test. Meyer's response constitutes a refusal under Johnsonv. Division ofMotor Vehicles, 711 P.2d at 817, 42 St.Rep. at 2048. The District Courtproperly held thatMeyer refused to submit to a breath test pursuant to 5 61-8-402, MCA.

ISSUE 2 Was appellant Meyer prejudiced when Patrolman Wylie failed to instruct appellant that he had no right to counsel 

### - prior to taking the breath test? A person arrested forDUI is deemed to have consented to take a breath test as a matter of law. Section 62-8-402,MCA. Results of a breath test are not self-incriminating. South Dakota v. Neville (1983), 74 L.Ed.2d 748, 103 S.Ct. 916, 459 U.S. 553. Prior to taking a breath test, a defendant has no right to counsel. State v. Armfield (Mont. 1984), 693 P.2d 1226, 1229, 41 St.Rep. 2430, 2433; Art. 11, Section 24, 1972Mont. Const. A breath test does not constitute a "critical stage event." Therefore, no right to counsel exists. Armfield, 693 P.2d at 1230, 41 St.Rep. at 2433, citing United Statesv. Wa.de (1967),388 U.S. 218, 87 St.Ct. 1926, 18 L.Ed.2d 1149. Patrolman Wylie informed Meyer that he could not call his friend prior to taking a breath test. In doing so,Wylie effectively told Meyer that he could not speak to his friend, attorney or any other person. If arguendo, Wylie had told appellantMeyer thathe had no right to speak to an attorney, the results would have been the same. Appellant Meyer would have been forced to decide without assistance whether he wished to take a breath test. That result is exactly what happened. Appellant has not challenged our holding in Armfield or 

### 5 61-8-402,MCA. Nor has appellant presented this Court with evidence of prejudice. The District Court did not err when it held that appellant was not prejudiced by Patrolman Wylie's failure to instruct Meyer that he had no right to counsel. Accordingly, we hold that appellant's driver's licensewas properly suspended. Affirmed.We concur: