No. 87-184 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

DARRYL GEORGE MEYER, 

Petitioner and Appellant, 

-vsSTATE OF MONTANA, 

Respondent. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hoyt & Blewett; John C. Hoyt, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen, Asst. Atty. General, Helena . Paul, County Attorney, Great Falls, Montana Patricg Jeff M lister & Tamrny Plubell, Deputy County Attys. 

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 to Montana's implied consent law, 

§ 61-8-402, MCA. We affirm. 

On March 8, 1987 Montana Highway Patrolman Cal Wylie 

observed a vehicle driving erratically near the Beacon Bar in 

Cascade County, Montana. Patrolman Wylie pulled the vehicle 

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 

ride home. 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 a phone call before finishing "the paperwork". 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.coholic content of his blood if 

arrested by a peace officer for driving or in 

actual physical control of a vehicle while under 

the influence of alcohol. 

(3) If a resident driver under arrest refuses upon 

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 

shall be given, but the officer shall, on behalf 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 test upon the request of 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 appellant Meyer successfully petitioned 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 to take a breath test? 

Appellant Meyer contends that he did not refuse to take 

a breath test. Appellant argues that substantial credible 

evidence does not support the findings of the District Court 

that Meyer refused to take a breath test. 

The following conversation occurred at the Great Falls 

Police Station between Meyer and Patrolman Wylie: 

OFFICER: ... Do you understand what I have read to 

you, Mr. Meyer? 

MEYER: Yes. 

OFFICER: Flould you like to take a breath test for 

me? 

MEYER : F7el1, can I call a -- call a friend of 

mine? 

OFFICER: For what? 

MEYER: For - I want to ask him a question. 

OFFICER: What -- what does that have to do with 

taking a breath test? 

MEYER: Well I just want to call him. 

OFFICER: Well, I'll tell you what. You can call 

him after we are done with the paperwork. I have 

to know right now whether or not you want to take a 

breath test. 

MEYER.: No. I don't want to take 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 to take the 

breath test? I'm confused. 
MEYER: Well can't I make 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 now whether 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. [Emphasis added.] 

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 a breath test. Appellant was told by Patrolman 

Wylie that he could not call his friend prior to taking the 

breath test. Appellant Meyer then refused to take the breath 

test. Meyer's response constitutes a refusal under 

Johnson v. Division of Motor Vehicles, 711 P.2d at 817, 42 

St.Rep. at 2048. The District Court properly held that Meyer 

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 for DUI 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, 1972 Mont. 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 States v. 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 

appellant Meyer that he 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 

license was properly suspended. 

Affirmed. 
We concur: