may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Timothy G. Piotrowski,
Filed January 7, 1997
Hennepin County District Court
File No. 95040160
Hubert H. Humphrey, III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Kathleen M. Ghreichi, Assistant County Attorneys, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)
Jeffrey S. Sheridan, Strandemo & Sheridan, P.A., 2125 Upper 55th Street East, Inver Grove Heights, MN 55077 (for Appellant)
Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Harten, Judge.
Appellant, who was convicted of criminal vehicular operation, asserts that the police violated his constitutional rights when an officer took a blood sample without informing him of his right to counsel. We affirm.
The Department of Public Safety revoked appellant's driver's license under the implied consent statute, and he was charged with criminal vehicular operation resulting in great bodily harm while having an alcohol concentration of 0.10 or more, as measured within two hours of the time of driving. Minn. Stat. § 609.21, subd. 2(4) (1994). After the trial court denied his motions to suppress the blood test and to dismiss the charges on double jeopardy grounds, the court convicted appellant on the felony vehicular operation charge.
1. Right to Counsel
Appellant argues that the trial court erred when it admitted the blood test because the officer did not read him the right to counsel language from the implied consent advisory before ordering the blood test. Appellant asks us to review settled principles of law, but we decline to do so.
Under the implied consent statute, where police have probable cause to believe that a person who has been involved in a motor vehicle collision resulting in a personal injury was driving while intoxicated, an officer may require that person to take a chemical blood test. Minn. Stat. § 169.123, subd. 2(a)(2) (1994). At that time, the officer shall inform the person that the person has "the right to consult with an attorney." Minn. Stat. § 169.123, subd. 2(b)(4) (1994). But if the officer has probable cause to believe that the person has violated the criminal vehicular operation statute, no advisory is required and "a test may be required and obtained despite the person's refusal." Minn. Stat. § 169.123, subd. 4 (1994) (exempting criminal vehicular operation from implied consent requirements).
Under Schmerber v. California, 384 U.S. 757, 760-65, 86 S.Ct. 1826, 1830-33 (1966), in the absence of a statute mandating an advisory or consent, none is required. The criminal vehicular operation statute does not require an advisory. See Minn. Stat. § 609.21. Furthermore, the driving while intoxicated statute no longer requires an advisory. 1984 Minn. Laws ch. 622, § 7 (amending Minn. Stat. § 169.121, subd. 2); State v. Schauer, 501 N.W.2d 673, 676-77 (Minn. App. 1993) (holding that chemical blood testing evidence is admissible in a drunk driving prosecution even if the officer makes no effort to read the implied consent advisory to driver). The officer's partial recitation of the implied consent advisory does not change the fact that the police had begun a felony investigation.
The right to counsel does not attach to the investigatory stage of chemical testing where the police have probable cause to believe that a driver is intoxicated and has committed criminal vehicular operation. State v. Condon, 497 N.W.2d 272, 275 (Minn. App. 1993); see also State v. Nielson, 530 N.W.2d 212, 215 (Minn. App. 1995) (driving while intoxicated), review denied (Minn. June 14, 1995).
Appellant primarily relies on Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991) (reversing a driver's license revocation under the implied consent statute because the police denied the defendant's request to consult her lawyer before submitting to a blood test). But the case on appeal concerns an investigation of criminal vehicular operation, not a driver's license revocation proceeding. Minnesota courts consistently have drawn a distinction between license revocations under the implied consent law and criminal prosecutions for drunk driving even though both proceedings stem from the same incident. State v. Speak, 339 N.W.2d 741, 744 (Minn. 1983) (holding that in the criminal context, the chemical analysis of blood taken absent consent or compliance with implied consent law is admissible so long as no Fourth Amendment violation occurred); State v. Aguirre, 295 N.W.2d 79, 81-82 (Minn. 1980) (holding that the implied consent statute does not apply to the warrantless nonconsensual removal of blood in a prosecution for criminal vehicular negligence resulting in death); State v. Aschnewitz, 483 N.W.2d 107, 108 (Minn. App. 1992) ("Compliance with all the procedures of the implied consent statute is not necessary where a defendant is charged with criminal offense of driving under the influence.").
Furthermore, unlike the revocation proceeding in Friedman, which premises the right to counsel on the driver's decision whether to submit to the test, thereby making the choice a critical stage, the driver suspected of criminal vehicular operation exercises no such discretion because the furnishing of a requested blood test is mandatory. Minn. Stat. § 169.123, subd. 4; Condon, 497 N.W.2d at 275; see also Nielson, 530 N.W.2d at 215. Without the right to refuse testing, there is no basis under Friedman for regarding the test as a critical stage, and the right to counsel does not attach.
In addition, Friedman does not impose an affirmative duty on police to advise suspects of their right to counsel before taking a blood test; the case arose from a situation where the driver asked to speak with her attorney, but the police refused. The supreme court merely held that such individuals have a right "upon request" to a reasonable opportunity to obtain legal advice regarding a chemical test. Friedman, 473 N.W.2d at 833. Because appellant never asked to speak to an attorney, Friedman does not apply.
Appellant also contends that chemical testing should trigger the right to counsel in a criminal prosecution because an attorney could have informed him that he was entitled to an additional independent blood test. This argument merely puts in different terms the view of appellant that chemical testing is a critical stage in the proceedings, a proposition that is at odds with Minnesota precedents and evidently not recognized elsewhere. Moreover, there is no tendency in Minnesota law to protect the right to know about additional testing. In fact, Minnesota arresting officers no longer have an affirmative duty to inform a driver of the right to an independent test. Ruffenach v. Commissioner of Pub. Safety, 528 N.W.2d 254, 256 (Minn. App. 1995). In 1992, the legislature removed language from the statutory advisory regarding the right to an additional test. 1992 Minn. Laws ch. 570, § 16 (amending Minn. Stat. § 169.123, subd. 2); see also Davis v. Commissioner of Pub. Safety, 517 N.W.2d 901, 904 (Minn. 1994) (upholding the amended advisory against a procedural due process challenge).
In addition, appellant argues that in light of Davis, in which the supreme court declared that "we are troubled by the deficiencies of the current advisory," we should provide drivers stopped under suspicion of driving while intoxicated greater protection by informing them of their right to counsel. Davis, 517 N.W.2d at 904. This policy consideration does not justify our choice to upset the pattern of law we have reviewed in this opinion.
2. Probable Cause
Appellant next asserts that the police lacked probable cause to believe that appellant had violated the criminal vehicular operation statute. Another person involved in the collision suffered substantial injuries. Both the responding officer and the officer at the hospital observed several indicia of intoxication, and appellant admitted that he drove the vehicle involved in the collision after drinking ten beers. Furthermore, appellant failed two field sobriety tests before the officer administered the blood test. The record supports the trial court's finding that the police had probable cause to suspect that appellant had caused great bodily harm to another while driving under the influence. Therefore, we conclude that the trial court properly admitted the results of the blood test.
3. Double Jeopardy
Appellant finally contends that his conviction for criminal vehicular operation after the revocation of his driver's license violates the Double Jeopardy Clauses of both the federal and state constitutions. U.S. Const. amend V; Minn. Const. art. 1, § 7. But the revocation of a driver's license followed by criminal punishment does not violate double jeopardy. Anderson v. Commissioner of Highways, 267 Minn. 308, 316-17, 126 N.W.2d 778, 783-84 (1964). The Minnesota Supreme Court recently reaffirmed Anderson, holding that a revocation preceded by a conviction for driving while intoxicated does not violate double jeopardy. State v. Hanson, 543 N.W.2d 84, 89 (Minn. 1996). Hanson still governs the situation where a person convicted of a crime receives a civil penalty arising from the same incident. Cf. City of Pine Springs v. One 1992 Harley-Davidson, 555 N.W.2d 749, 750-52 (Minn. App. 1996) (adopting new double jeopardy test for forfeitures). Thus, under Hanson, appellant's conviction after the revocation of his driver's license is not double jeopardy.