NO. 93-179

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

In the Matter of the Suspension

of the Driver's License of

CHARLES A. BLOMEYER,

Petitioner and Appellant,

STATE OF MONTANA

Respondent and Respondent.

<:

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Randy S. Laedeke~; Laedeke Law Office, Billings,

Montana ,

For Respondent:

Hon. Joseph P. Mazurek, Attornese;ea;-al, Brenda

Nordlund, Assistant Attorney Helena,

Montana; Dennis Paxinos, Yellowsto& County

Attorney, Brent Brooks, Deputy County Attorney,

Montana r

~gsp$&f: Submitted on Briefs: February 24, 1994

~;;$,;~~

Decided: March 29, 1994+

I

Clerk
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from a Thirteenth Judicial District Court

ruling on a petition for judicial review of the suspension of

Charles Blomeyer's (Charles) driver's license for refusal to submit

to a breath test under the implied consent law. The District Court

determined that the suspension of Charles' driver's license and

driving privileges would remain in effect until the appropriate

suspension period expired pursuant to § 61-8-402(5), MCA. We

affirm.

There are two issues on appeal which we state as follows:

1 . Does a police officer have an affirmative duty to advise a

driver that he does not have the right to counsel before he decides

whether to submit to a test of his blood alcohol content?

2 . Does the "confusion doctrine" apply in the instant case?

Background

Charles was stopped for suspicion of driving under the

influence on December 20, 1992, in Billings, Montana. He was taken

to the Yellowstone County Detention Facility and was asked to

perform the standard field sobriety tests while being filmed on

videotape.

Charles had considerable difficulty performing the field

sobriety tests. Following these tests, the officer read and

explained the implied consent law advisory form to him. During the

reading of the implied consent form, Charles repeatedly asked to

speak to an attorney. The police officer informed him that when he

(the officer) finished reading the implied consent form and

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Charles' Miranda rights, the appellant could call for an attorney.

At the conclusion of the reading of the informed consent form,

the officer asked Charles if he wanted to submit to a test of his

blood alcohol content (BAC test). Charles replied, "Not at this

moment." The officer then read Charles his Miranda rights.

Following the reading, he gave Charles a telephone and a telephone

book and allowed him to call an attorney. The officer noted

Charles' request for an attorney as a refusal to submit to a breath

test with the result that his driver's license and driving

privileges were suspended for 90 days, pursuant to 5 61-8-402(5),

MCA.

Charles petitioned the Thirteenth Judicial District Court,

pursuant to 5 61-8-403, MCA, for a review of the decision to

suspend his driver's license and driving privileges for 90 days.

The court heard Charles' testimony, viewed the videotape of the

field sobriety tests, the reading and explanation of the implied

consent form and the reading of the Miranda rights. Counsel were

also allowed to file briefs.

The District Court found that Charles had refused to submit to

a BAC test even though he knew that his license would be seized

upon a refusal to submit to the test. The District Court concluded

that Charles' driver's license had been properly suspended.

Pertinent Statute

Section Gl-;3-402, MCA, the statute under which Charles'

driver's license was suspended, provides in pertinent part:

Blood, breath, or urine tests. (1) Any person who

operates or is in actual physical control of a vehicle
upon ways of this state open to the public shall be

deemed to have given consent, subject to the provisions

of 61-s-401, to a test of his blood, breath, or urine for

the purpose of determining any measured amount or

detected presence of alcohol in his body if arrested by

a peace officer for driving or for being in actual

physical control of a vehicle while under the influence

of alcohol, drugs, or a combination of the two. The test

shall be administered at the direction of a peace officer

having reasonable grounds to believe the person to have

been driving or in actual physical control of a vehicle

upon ways of: this state open to the public, while under

the influence of alcohol, drugs, or a combination of the

two. The arresting officer may designate which test or

tests shall be administered.

i3j . If a driver under arrest refuses upon the

request of a peace officer to submit to a test designated

by the arresting officer as provided in subsection (l),

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, drugs, or a combination

of the two, 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).

i5j The followinq suspension and revocation periods

are applicable upon refusal to submit to a test:.

(a) upon a first refusal, a suspension of 90 days

with no provision for a restricted probationary license.

. . .

Right to Counsel

Does a police officer have an affirmative duty to advise a

driver that he does not have the right to counsel before deciding

whether to submit to a BAC test?

Initially, we reiterate that a driver has no right to counsel

before he must decide whether to submit to a BAC test. State v.

Armfield (1984), 214 Mont. 229, 693 P.2d 1226. Secondly, we

4
reaffirm that a continual request to speak to an attorney before

submitting to a BAC test is deemed a refusal to take the test.

Johnson v. Division of Motor Vehicles (1985), 219 Mont. 310, 711

P.2d 815.

The difference between the driver in Johnson and the driver in

the instant case is that in Johnson, the police officer informed

the driver that he had no right to counsel during the breath test.

Here, Charles was not so informed, and hence, there is raised the

question of whether a police officer has an affirmative duty to

inform the driver that he has no right to counsel before deciding

whether to submit. to a BAC test.

We turn to a prior Montana case for guidance in resolving this

issue. In Meyer v. State (1987), 229 Mont. 199, 745 P.2d 694, the

appellant was stopped for suspicion of driving under the influence.

After being taken to the Great Falls police station and after being

read the implied consent law advisory form, the driver requested

that he be able to call a friend prior to taking the breath test.

The police officer informed him that he could make as many

telephone calls as he wanted, but first, he would have to tell the

officer whether he would submit to the breath test. The appellant

stated that he would not submit to the test and his license was

subsequently suspended.

In affirming the District Court in Meyer, we concluded that

the appellant had to decide without assistance from anyone whether

to take a breath test. We stated:

Patrolman Wylie informed Meyer that he could not

call his friend prior to taking a breath test. In doing

5
Wylie effectively told Meyer that he could not speak

gz' 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 3 61-S-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 Wvlie's failure to instruct Meyer that he had

no riqht to counsel. Accordingly, we hold that

appellant's driver's license was properly suspended.

Meyer, 745 P.2d at 696. (Emphasis added.)

In the same manner, Charles was not prejudiced by the police

officer's failure to inform him that there is no right to counsel

before a driver decides whether to submit to a BAC test. The same

result would have obtained if the police officer had instructed

Charles that he had no right to counsel. Charles still would have

had to decide without assistance, whether to submit to a BAC test.

Meyer, 745 P.2d at 696. Since a failure to inform a driver that he

does not have a right to counsel prior to deciding whether to take

a BAC test does not prejudice the driver's rights, we hold that

there is no affirmative duty on the part of a police officer to

inform a driver that he has no right to counsel before deciding

whether to submit to a BAC test.

Confusion Doctrine

Does the "confusion doctrine" apply in the instant case?

Charles argues that the police officer should have informed

him that his constitutional right to counsel did not apply to the

implied consent request. Charles also maintains that he thought he

had a right to counsel before deciding whether to submit to a BAC

6
test, and that because of his confusion, his refusal to submit to

a BAC test should be excused. The State counters that the

"confusion doctrine" which Charles attempts to implicate here, does

not apply to the present case. We agree.

The 'confusion doctrine' provides that when an arresting

officer introduces the question of a drunken-driving

suspect's right to counsel by giving a Miranda warning

prior to requesting a chemical test, the suspect's

subsequent refusal to take a test until an attorney is

consulted may not constitute a 'refusal to submit' to a

chemical test.

Ehrlich v. Backes (N.D. 1991), 477 N.W.2d 211, 213. A number of

states have adop.ted the "confusion doctrine," and Charles urges

this Court to, likewise, adopt that rule. See Rust v. Department

of Motor Vehicles Div. of Driver's Lit. (Cal. Ct. App. 1968), 267

Cal. App. 2d 545, 73 Cal. Rep. 366; State Department of Highways v.

Beckey (Minn. 1971), 192 N.W.2d 441; and State v. Severino (Haw.

1975), 537 P.2d 1187.

Whether we determine to adopt the rule in some future case,

the facts here do not warrant the application of the doctrine. The

confusion doctrine applies only when Miranda rights are given &

a or contemporaneously with a driver being advised of his rights

and obligations under the implied consent law. The "confusion" is

caused by informing the driver via his Miranda rights that he has

a riqht to counsel and then asking him to take a BAC test under the

implied consent law. It is recognized that this situation could

easily confuse a driver and mislead him to believe he has the right

to an attorney before he decides whether to submit to a BAC test.

Beckey, 192 N.W.2d at 445; Severino, 537 P.2d at 1198.

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In the instant case, the police officer first informed

Charles of his rights and obligations under the implied consent

law. Charles then refused to take the breathalyzer test before his

Miranda rights were even read. Because his Miranda rights were

read after the implied consent form was read and after Charles

refused to submit to a BAC test, there is no likelihood that he

confused his right to counsel under Miranda, with his rights and

obligations under the implied consent law. In short, having

already refused the BAC test, Charles could not have been mislead

by the subsequent reading of his Miranda rights into thinking that

he had a right to counsel before deciding whether to take the BAC

test.

Charles refused to submit to the BAC test and has not brought

his case within the application of the "confusion doctrine."

Accordingly, we hold that the District Court correctly denied

Charles' petition for reinstatement of his driver's license.

AFFIRMED.

We Concur:
March 29, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Randy S. Laedeke, Esq.

Laedeke Law Office

P.O. Box 2216

Billings, MT 59103

Hon. Joseph P. Mazurek

Attorney General

Justice Bldg.

Helena, MT 59620

Dennis Paxinos, County Attorney

Brent Brooks, Deputy

P.O. Box 35025

Billings, MT 59107

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA