BLOMEYER v STATE
Annotate this Case
Download PDF
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. Montana Laedeke~; Laedeke Law Office, Billings, , For Respondent: Hon. Joseph P. Mazurek, Attornese;ea;-al, Brenda Helena, Attorney Nordlund, Assistant County Yellowsto& Dennis Paxinos, Montana; Attorney, Brent Brooks, Deputy County Attorney, r Montana ~ gsp$&f: Submitted on Briefs: Decided: February 24, 1994 March 29, 1994+ ~;;$,;~~ 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 ยง 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 officer) The police officer informed him that when he finished reading the implied consent form and 2 Charles' Miranda At the the conclusion officer blood rights, the asked alcohol moment." the Charles content The if book allowed him an result that suspended for 90 petitioned the Thirteenth privileges were as a his an to his a to driver's and submit to rights. a telephone to noted a and 5 his this officer license days, pursuant of at Miranda The form, test "Not telephone refusal attorney. consent replied, attorney. test the attorney submit a for for informed Charles Charles' request with an the to Charles call call Charles read gave to of wanted test). then reading, he the could reading he (BAC officer Following and of appellant breath driving 61-8-402(5), MCA. Charles pursuant suspend The 61-8-403, driver's heard sobriety consent also 5 his court field form allowed The a to BAC license Charles' tests, the for and a reading the reading to file even found though he the Charles' driver's that knew driver's the the decision for 90 videotape explanation Miranda Charles that license had Pertinent Section of Court, of Gl-;3-402, license Blood, operates or was MCA, the suspended, had his days. of the the implied Counsel refused license The been rights. to briefs. Court of District privileges viewed and upon a refusal to submit to the test. that review driving testimony, and District test MCA, Judicial District properly to would Court were submit be to seized concluded suspended. Statute statute provides in under which pertinent breath, or urine tests. (1) Any is in actual physical control of Charles' part: person who 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. Armfield (1984), 214 Mont. 229, 693 4 P.2d 1226. State v. Secondly, we 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 Does the "confusion Doctrine 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, a and BAC that test should "confusion not because of be his excused. doctrine" which apply to the confusion, present The Charles case. his State attempts We refusal to submit that to implicate the here, counters to does 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. states have this of Cal. Backes Court adop.ted Vehicles Motor Div. 477 N.W.2d "confusion adopt of 537 P.2d Whether facts rule. Driver's doctrine not to Lit. applies under informing with the the implied consent to attorney an Beckey, 192 a law. It driver and before N.W.2d at a driver he Rust v. Ct. State of urges Department App. 1968), 267 of Highways v. v. Severino (Haw. rule in some future of the doctrine. Miranda driver being consent via rights his are advised law. Miranda The given & his rights of The case, "confusion" rights that he is has asking him to take a BAC test under the is recognized mislead decides 445; the when implied to counsel and then confuse Charles Department and number application the only a riqht easily 441; A and See (Cal. State adopt warrant contemporaneously by N.W.2d determine do obligations caused 192 213. 1187. we here confusion or 1971), 211, doctrine," that App. 2d 545, 73 Cal. Rep. 366; 1975), and the likewise, (Minn. a 1991), to, Beckey the (N.D. him that to whether Severino, 7 537 this believe to submit P.2d at situation he could has the right a BAC test. to 1198. 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
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
