State v. Ankney , 109 Idaho 1 ( 1985 )

BAKES, Justice.

Douglas Ankney appeals from a district court order affirming the suspension of his driver’s license. Ankney’s driver’s license was suspended after he refused to take the alcohol concentration test required by I.C. § 49-352.¹ The version of I.C. § 49-352 at issue here was repealed in 1984.

On October 15, 1983, a Lewiston police officer stopped a Datsun pickup truck driven by Ankney. The officer stopped the pickup truck after observing the truck drifting from side to side, crossing the yellow line several times and, after clocking the pickup truck at 36 m.p.h. in a 25 m.p.h. zone.

The officer testified that following the stop, Ankney had some difficulty producing his driver’s license; that his speech was slurred; that he talked in a low, shallow voice; and that his eyes were bloodshot. The officer also detected the odor of alcohol on Ankney’s breath. After Ankney failed to do well on the field sobriety test, he was placed under arrest for operating a motor vehicle while under the influence of alcohol.

After being taken to the Lewiston police station, Ankney was read the I.C. § 49-352 advisory form. Ankney then refused to submit to the evidentiary test for alcohol concentration. Because of his refusal, his driver’s license was seized pursuant to I.C. § 49-352. Ankney was also charged with violation of I.C. § 49-1102, driving while under the influence.

On October 17,1983, an order was issued suspending Ankney’s driving privileges for 120 days. Ankney then requested a hearing enabling him to show cause why he did not take the evidentiary test for alcohol concentration. Following a hearing on November 10, 1983, a magistrate determined that Ankney’s driver’s license was properly suspended. At this hearing Ankney testified that he did not take the test because he did not understand the form that was read to him and because he did not know whether he had a constitutional right to refuse the evidentiary test for alcohol concentration. Ankney then appealed to the district court. In an opinion dated May 10, 1984, the district court affirmed the magistrate’s decision. This appeal followed. The suspension of Ankney’s driver’s license has been stayed pending this appeal.

Ankney first contends that I.C. § 49-352 fails to meet the due process requirements of both the Idaho and United States Constitutions. He argues that the statute’s provisions which enabled a police officer to seize a person’s driver’s license prior to a hearing resulted in deprivation of property without due process of law, in violation of the fourteenth amendment of the United States Constitution² and Idaho Constitution, Art. 1, § 13.³ We disagree.

Because the suspension of issued driver’s licenses involves state action that adjudicates important interests of the licensees, drivers’ licenses may not be taken away without procedural due process. Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). The United States Supreme Court has held:

“[identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

Thus, these three factors must be considered in determining whether I.C. § 49-352 results in a deprivation of due process pursuant to the fourteenth amendment of the United States Constitution. Since this Court has previously held that “[t]he due process guarantees derived from both the United States Constitution and the Idaho Constitution are substantially the same,” Rudd v. Rudd, 105 Idaho 112, 115, 666 P.2d 639, 642 (1983), consideration of these same three factors is necessary to satisfy the due process requirements of the Idaho Constitution.

The first step in the balancing process mandated by Eldridge requires identification of the nature and weight of the private interest affected. It is well recognized that an individual’s interest in his driver’s license is substantial. See Mackey v. Montrym, 443 U.S. 1, 11, 99 S.Ct. 2612, 2617, 61 L.Ed.2d 321 (1979); Dixon v. Love, 431 U.S. 105, 112, 97 S.Ct. 1723, 1727-28, 52 L.Ed.2d 172 (1977). However, the United States Supreme Court has determined that an individual’s interest in his driver’s license is not so substantial as to require a pre-suspension hearing. Dixon v. Love, supra.⁴

Secondly, the likelihood of an erroneous deprivation of the private interest must be considered. The United States Supreme Court has stated:

“[W]hen prompt postdeprivation review is available for correction of administrative error, we have.generally required no more than that the predeprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be. ...

“As was the case in Love, the predicates for a driver’s suspension under the Massachusetts scheme are objective facts either within the personal knowledge of an impartial government official or readily ascertainable by him. Cause arises for license suspension if the driver has been arrested for driving while under the influence of an intoxicant, probable cause exists for arrest, and the driver refuses to take a breath-analysis test. The facts of the arrest and the driver’s refusal will inevitably be within the personal knowledge of the reporting officer____ At the very least, the arresting officer ordinarily will have provided the driver with an informal opportunity to tell his side of the story and ... will have had the opportunity to observe the driver's condition and behavior before effecting any arrest.” Mackey v. Montrym, 443 U.S. 1, 13-14, 99 S.Ct. 2612, 2618-19, 61 L.Ed.2d 321 (1979) (citations omitted).

The third aspect to consider is the government’s interest. As acknowledged by the Supreme Court, “the interest of the states in depriving the drunk driver of permission to continue operating an automobile is particularly strong.” Illinois v. Batchelder, 463 U.S. 1112, 103 S.Ct. 3513, 3516, 77 L.Ed.2d 1267 (1983). In considering the strong state interest, the Court has noted:

“A presuspension hearing would substantially undermine the state interest in public safety by giving drivers significant incentive to refuse the breath-analysis test and demand a presuspension hearing as a dilatory tactic. Moreover, the incentive to delay arising from the availability of a presuspension hearing would generate a sharp increase in the number of hearings sought and therefore impose a substantial fiscal and administrative burden on the Commonwealth.” Mackey v. Montrym, 443 U.S. at 18, 99 S.Ct. at 2621 (citations omitted).

Having considered I.C. § 49-352 in light of the above, we conclude that I.C. § 49-352 meets the procedural due process requirements of both the Idaho and United States Constitutions. Although an individual does have a substantial right in his driver’s license, the state’s interest in preventing intoxicated persons from driving far outweighs the individual’s interest, particularly when the individual is entitled to the prompt post-seizure hearing mandated by I.C. § 49-352(2)(c). This prompt post-seizure review, coupled with the requirement that the police officer requesting the evidentiary test have reasonable grounds to believe the driver is intoxicated, prevents a high risk of erroneous deprivation.

Ankney also argues that the Idaho Code does not provide a statutory basis for giving either police officers or the courts actual authority to seize and suspend his driver’s license. Ankney’s reliance on this technical argument is misplaced. It is clear that in enacting I.C. § 49-352 the legislature intended for driver’s licenses to be seized if a driver refused to submit to the evidentiary test for alcohol concentration. I.C. § 49-352(2) provides that “at the time an evidentiary test for alcohol concentration is requested, the person shall be informed that (a) if the test is refused, his license or permit will be seized by the police officer and forwarded to the court; and (b) upon receipt of a sworn statement by the police officer of the circumstances of the refusal, the court shall suspend his driving privileges for 120 days.” Also, subsection (3) provides that “suspension of driving privileges under this section shall be separate and apart from other suspension imposed for violation of other Idaho motor vehicle codes____” The foregoing indicate a clear intention on the part of the legislature that, if a driver refuses to submit to the evidentiary test for alcohol concentration, his license will be seized and suspended. The procedure by which such a seizure was to be effected was a matter falling within the rulemaking authority of the Supreme Court, accord State v. Currington, 108 Idaho 539, 700 P.2d 942 (1985).

Idaho Misdemeanor Criminal Rule 9.2, in effect at the time of the events which give rise to this appeal, clearly gave authority to seize and suspend the license for failure to submit to the evidentiary test for alcohol concentration. The rule states in part: “In the event a person refuses to submit to an evidentiary test for alcohol concentration when required by a peace officer as provided by section 49-352, Idaho Code, the officer shall seize the driver’s license of such person and forward it to the court____” The rule further states, “If the court finds that the sworn statement of the officer makes the necessary prima facie showing that the respondent refused to submit to an evidentiary test for alcohol concentration after having been properly requested to do so, the court shall thereupon enter an order suspending the driver’s license of the respondent for 120 days pursuant to section 49-352, Idaho Code.” We conclude that I.C. § 49-352, and Idaho Misdemeanor Criminal Rule 9.2, authorized the seizure and suspension of Ankney’s license.

Ankney further argues that the provision of I.C. § 49-352 which states that a person does not have a right to consult with counsel before submitting to the evidentiary test deprives an individual of the constitutional right to counsel. We disagree. We continue to adhere to the views expressed in Mills v. Bridges, 93 Idaho 679, 471 P.2d 66 (1970). A person does not have a constitutional right to consult with an attorney before deciding whether to submit to an evidentiary test for alcohol concentration. Accord State v. Armfield, 693 P.2d 1226 (Mont.1984).

Finally, we find no merit in' Ankney’s argument that he was able to “show cause” as to why he refused to take the evidentiary test when he testified at the post-seizure hearing. Ankney’s argument is, in effect, that so long as he was able to articulate some reason for not taking the evidentiary test he has shown “cause.” The trial court concluded that no “cause” for refusal was shown, and that finding is supported by the record. Under Ankney’s reading of the statute, any justification for not taking the test would be sufficient to excuse a person from the test. This interpretation is contrary to both good sense and the rules of statutory construction. Since the plain, obvious and rational meaning of a statute is always preferred, State ex rel. Evans v. Click, 102 Idaho 443, 448, 631 P.2d 614, 619 (1981), we decline to accept Ankney’s reading.

Costs to respondent.

DONALDSON, C.J., and HUNTLEY, J., concur.

1 . 49-352. Test of driver for blood alcohol.—

(1) Any person who drives or is in actual physical control of a motor vehicle in this state shall be deemed to have given his consent to an evidentiary test for alcohol concentration as defined in section 49-1102, Idaho Code, provided that such test is administered at the request of a police officer having reasonable grounds to believe that person has been driving or in actual physical control of a motor vehicle while under the influence of alcohol, drugs or of any other intoxicating substances, and in accordance with the rules and regulations established by the Idaho Department of law enforcement.

(2) At the time an evidentiary test for alcohol concentration is requested, the person shall be informed that:

(a) If the test is refused, his license or permit will be seized by the police officer and forwarded to the court; and

(b) Upon receipt of a sworn statement by the police officer of the circumstances of the refusal, the court shall suspend his driving privileges for one hundred twenty (120) days; and

(c) That he has the right to request a hearing before the court to show cause why he did not take or successfully complete the evidentiary test for alcohol concentration; if requested, the hearing must be scheduled within thirty (30) days of the request; that the hearing shall be limited to the question of why the defendant did not take the test, and that the burden of proof shall be upon the defendant; and

(d) He does not have the right to consult with an attorney before submitting to an evidentiary test for alcohol concentration; and

(e) After submitting to the test at the request of the police officer, he may, when practicable, have additional tests made by a person of his own choosing, and at no expense to the state, county or city. The failure or inability to obtain an additional test or tests by a person shall not preclude the admission of an evidentiary test for alcohol concentration taken at the direction of the police officer unless the additional test was denied by the police officer.

(3)Suspension of driving privileges under this section shall be separate and apart from any other suspension imposed for a violation of other Idaho motor vehicle codes, and may be appealed to the district court.

(4) No hospital, hospital officer, agent, or employee, or health care professional licensed by the state of Idaho shall be held liable in damages in any civil proceeding for a cause of action based upon assault, battery or false imprisonment, or be subject to prosecution under chapter 9 or 29, title 18, Idaho Code, for any act arising out of administering an evidentiary test for alcohol concentration at the request of a police officer in the manner described by this section.

(5) "Actual physical control" as used in this section, shall be defined as being in the driver's position of the motor vehicle with the motor running or with the motor vehicle moving. (Emphasis added.)

2 . § 1. [Citizenship — Due process of law— Equal protection.] — All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

3 . § 13. Guaranties in criminal actions and due process of law. — In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel.

No person shall be twice put in jeopardy for the same offense; nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.

4 . Although the Illinois statute considered in Dixon v. Love contained hardship provisions, which are not contained in the Idaho statute, the Supreme Court has stated that the provisions were "in no sense the ‘controlling’ factor in [the Dixon ] decision." Mackey v. Montrym, 443 U.S. 1, 12, 99 S.Ct. 2612, 2618, 61 L.Ed.2d 321 (1979).