Filed July 18, 1969.
Appeal from the district court for Scotts Bluff County: TED R. FEIDLER, Judge. On motion for rehearing. See ante p. 13, 165 N.W.2d 96, for original opinion. Motion for rehearing overruled.
Lester A. Danielson, for appellant.
Clarence A. H. Meyer, Attorney General, and James J. Duggan, for appellees.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
The original opinion in this case appears ante p. 13, 165 N.W.2d 96.
The motion for rehearing asserts that there are statements in the original opinion "implying that the giving of a test pursuant to the implied consent law may be conditioned on the right to consult with an attorney." The statements in the original opinion were: "In an appropriate factual context, a request for a brief delay in making the decision to accept or refuse the chemical test in order to consult with a lawyer should be granted where the delay is short and does not jeopardize the effectiveness of the test. * * * The taking of a chemical test authorized by the Implied Consent Law is not ordinarily required to be delayed by a request of the arrested motorist that he be permitted to contact legal counsel." (Emphasis ours.)
The crux of the difficulty is that two separate proceedings, one civil and one criminal, may follow an arrest for driving while intoxicated, and the criminal proceeding may involve either a felony or a misdemeanor. At the time of the arrest and request for a chemical test, the arresting officer cannot be certain which proceeding may ultimately be involved, or whether both of them will be. The civil proceeding is for revocation of an operator's license under the Implied Consent Law. The criminal proceeding may be for operating a motor vehicle while under the influence of intoxicating liquor, or it may be for motor vehicle homicide. See 39-727.01, R.R.S. 1943.
Criminal proceedings for operating a motor vehicle while under the influence of intoxicating liquor may involve either a misdemeanor or a felony, depending upon how many convictions the defendant may have had before. Motor vehicle homicide is a felony.
When the request to take a chemical test is made, a refusal to take the test leaves both procedures, civil and criminal, still open. A consent to take the test automatically cancels out any possible civil procedure under the Implied Consent Law, but the results of the test are admissible by statute in the criminal proceedings and presumptions from them are specified. Coupled with these complications is the fact that the Nebraska statute specifically provides: "If a person so arrested shall refuse to submit to the test provided for in section 39-727.03, it shall not be given, * * *." 39-727.08, R.R.S. 1943.
Because of these involvements, the Scotts Bluff police department was regularly using mimeographed implied consent rules. According to the testimony, these rules are read "to all persons that are arrested for driving while intoxicated." They were read to the appellant in this case. The mimeographed rules consist of a full page of single-spaced material, and the first numbered sentence which was read to the appellant was: "1. You are hereby advised that you have the right to an attorney and if you desire you may call one now." Not only was the appellant advised that he had the right to call an attorney; he was given the opportunity, and made a phone call.
In the present state of the law, there is no constitutional right to counsel in any civil proceeding, including the revocation of a driver's license under the Implied Consent Law. There is also no constitutional right to counsel in minor criminal proceedings in which imprisonment of less than 6 months is all that may be imposed. There are specific constitutional rights which have been spelled out by the United States Supreme Court which apply in any "serious criminal case" where imprisonment of more than 6 months may be involved.
The Attorney General contends that Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908, establishes that in a criminal drunken driving conviction there is no constitutional right to refuse to submit to a blood test. The distinctions between that case and a "serious criminal case" in Nebraska are obvious, and the Schmerber case involved a misdemeanor. California had no statutory provision which specified that if a person refused to submit to the blood test, the test should not be given. In view of the specific provision of our statute protecting a defendant's right of refusal, it would seem obvious that if a "serious criminal case" is involved, the request to submit to a chemical test becomes a critical stage in the proceedings.
The motion for rehearing is overruled.