Jereme Roesing v. Director of Revenue, State of Missouri , 573 S.W.3d 634 ( 2019 )

SUPREME COURT OF MISSOURI
en banc
JEREME ROESING, ) Opinion issued April 30, 2019
)
Appellant, )
)
v. ) No. SC97165
)
DIRECTOR OF REVENUE, )
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
The Honorable Robert L. Trout, Judge
Following Jereme Roesing’s refusal to submit to a chemical test, the director of
revenue revoked his driving privileges for one year pursuant to section 577.041.1. 1
Roesing filed a petition for review of his driver’s license revocation with the circuit court,
which entered a judgment sustaining the revocation. He appealed, arguing that his
refusal to consent to a chemical test was not voluntary and unequivocal under section
577.041.1 because law enforcement deprived him of his statutory right to counsel by
listening to and making audio and video recordings of his end of the conversation with
his attorney. Because law enforcement deprived Roesing of his right to confer privately
1
All statutory references are to RSMo Supp. 2013, unless otherwise specified.
with his attorney, and the director failed to show that Roesing was not prejudiced, his
refusal to consent to the chemical test was not voluntary and unequivocal under section
577.041. The circuit court erred in sustaining the revocation of Roesing’s driving
privileges. The judgment is reversed, and the case is remanded.
Background
Roesing was arrested for driving while intoxicated and transported to the police
department, where an officer read him the implied consent law. 2 Roesing requested to
call an attorney and was successful in contacting one. Approximately one minute into the
call, Roesing handed the telephone to the officer, and the attorney told the officer he
wished to speak with Roesing in private. The officer replied that it might be possible to
arrange for the conversation to occur in another room, but it would be audio and video
recorded. The officer returned the telephone to Roesing. Roesing’s conversation with
the attorney continued in the officer’s presence and was audio and video recorded. The
officer stood approximately three feet from Roesing and could hear Roesing’s end of the
conversation. After 20 minutes had passed and the conversation had ended, the officer
again read Roesing the implied consent law, and Roesing refused to submit to a chemical
test.
The director revoked Roesing’s driving privileges for one year pursuant to section
577.041.1. Roesing filed a petition with the circuit court for review of his driver’s license
2
Pursuant to section 577.020.1, any person who operates a vehicle in the state “shall be deemed
to have given consent to … a chemical test or tests of the person’s breath, blood, saliva, or urine
for the purpose of determining the alcohol or drug content of the person’s blood.”
2
revocation pursuant to section 577.041.4. 3 Following an evidentiary hearing, the circuit
court entered judgment sustaining the revocation of Roesing’s driving privileges.
Roesing appealed. 4
Analysis
This case presents the question whether the right to attempt to contact an attorney
pursuant to section 577.041.1 includes the right to speak to the attorney privately, should
the attorney be contacted successfully.
Section 577.041.1 provides, in pertinent part:
If a person when requested to submit to any test allowed ... requests to speak
to an attorney, the person shall be granted twenty minutes in which to attempt
to contact an attorney. If upon the completion of the twenty-minute period
the person continues to refuse to submit to any test, it shall be deemed a
refusal. In this event, the officer shall, on behalf of the director of revenue,
serve the notice of license revocation personally upon the person and shall
take possession of any license to operate a motor vehicle.
(Emphasis added). Section 577.041.1 provides a driver who wishes to speak with an
attorney with the right, upon request, to attempt to contact a lawyer during a 20-minute
period. Norris v. Dir. of Revenue, 304 S.W.3d 724, 726 (Mo. banc 2010); see also Riley
v. Dir. of Revenue, 378 S.W.3d 432, 438 (Mo. App. 2012) (“[T]he driver is entitled to
only twenty minutes to attempt to contact and speak to a lawyer.” (Emphasis added)
(quoting Akers v. Dir. of Revenue, 193 S.W.3d 325, 329 (Mo. App. 2006))).
3
Section 577.041.4 provides: “If a person’s license has been revoked because of the person’s
refusal to submit to a chemical test, such person may petition for a hearing.” At the hearing, the
circuit court shall determine “[w]hether or not the person refused to submit to the test.” Section
577.041.4(3). If the court determines this issue “not to be in the affirmative, the court shall order
the director to reinstate the license or permit to drive.” Section 577.041.5.
4
After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.
3
Whether section 577.041.1’s right “to attempt to contact an attorney” is violated
when the driver successfully contacts an attorney, but is then denied the right to speak
with the attorney privately, is an issue of first impression for this Court. Legal questions
of statutory interpretation are reviewed de novo. Norris, 304 S.W.3d at 725.
Section 577.041.1’s purpose is “to provide the driver with a reasonable
opportunity to contact an attorney to make an informed decision as to whether to submit
to a chemical test.” Id. at 726-27. Any refusal to take the test must be “voluntary and
unequivocal.” White v. Dir. of Revenue, 255 S.W.3d 571, 580 (Mo. App. 2008). When a
driver conditions a refusal on consulting with an attorney, but is not given a reasonable
opportunity to do so, the driver is not deemed to have refused to submit to a chemical test
for purposes of license revocation. Kotar v. Dir. of Revenue, 169 S.W.3d 921, 925 (Mo.
App. 2005).
Roesing argues he was not given a reasonable opportunity to consult with counsel
to make an informed decision whether to submit to a chemical test because law
enforcement listened to and recorded his conversation with his attorney. Roesing asserts
he had a statutory right to speak with his attorney privately pursuant to section
577.041.1. 5 In response, the director argues section 577.041.1 contains only the right to
attempt to contact an attorney and does not guarantee an opportunity to speak with an
attorney, much less the right to a private consultation. According to the director, section
5
Roesing does not make a constitutional argument. A driver does not have a constitutional right
to consult with an attorney prior to deciding whether to submit to a chemical test. Spradling v.
Deimeke, 528 S.W.2d 759, 764 (Mo. 1975).
4
577.041.1’s purpose is satisfied so long as the driver is provided with 20 minutes to
attempt to contact an attorney.
But the director’s interpretation contradicts section 577.041.1’s purpose by
hampering the driver’s ability to have meaningful contact with an attorney for advice in
making an informed decision of whether to submit to a chemical test. 6 A driver who
successfully contacts an attorney is afforded a reasonable opportunity to contact an
attorney to make an informed decision only if the driver is able to candidly disclose all
necessary information to receive appropriate advice from the attorney. 7 A driver is not
free to speak candidly with his attorney regarding potentially incriminating evidence
when there is a possibility that anything said can be shared with the prosecuting attorney
who will decide whether to bring criminal charges. The legislature could not have
logically intended that section 577.041.1 requires nothing more than allowing a driver 20
minutes to attempt to contact an attorney. For a driver to have meaningful contact with
an attorney, the conversation must be private.
6
The director’s reliance on White is unhelpful. The issue in White was whether section
577.041.1 was violated when a driver requested to contact an attorney and was provided only
seven minutes to do so. 255 S.W.3d at 580. Importantly, White did not discuss the issue in the
instant case – whether section 577.041.1 is violated when a driver makes contact with an
attorney yet is denied the opportunity to speak privately with that attorney.
7
The Arizona Supreme Court considered a number of topics the driver and attorney would be
hesitant to discuss if they knew the conversation was not private, including: the amount the
driver had to drink, the type of alcohol, the size of the drink, the amount of time that had passed
since the driver last had a drink, what and when the driver last ate, whether the driver believed he
was under the influence of alcohol either while driving or currently, and whether the driver
believed the alcohol had affected his ability to drive. State v. Holland, 711 P.2d 592, 594 (Ariz.
1985).
5
This interpretation is further supported by the courts of other states, which have
emphasized that privacy is inherent in a driver’s right to consult with counsel to make an
informed decision regarding whether to submit to a chemical test. See Bickler v. N.D.
State Highway Comm’r, 423 N.W.2d 146, 146 (N.D. 1988) (“When an arrestee consults
with counsel, he must be allowed to do so in a meaningful way. A consultation would be
meaningless if relevant information could not be communicated without being overheard.
There is a right to privacy inherent in the right to consult with counsel.”); Holland, 711
P.2d at 594 (Ariz. 1985) (“[I]t is universally accepted that effective representation is not
possible without the right of a defendant to confer in private with his counsel.”); Farrell
v. Municipality of Anchorage, 682 P.2d 1128, 1130 (Alaska Ct. App. 1984) (“[T]he
statutory right to contact and consult counsel requires reasonable efforts to assure that
confidential communications will not be overheard ....”); People v. Moffitt, 19 N.Y.S.3d
713, 719 (N.Y. Crim. Ct. 2015) (“Once afforded, if the right to counsel is to have any
meaning, the communication between lawyer and client must be private.”).
Privacy is inherent in a driver’s statutory right to counsel. To interpret section
577.041.1 otherwise would contradict section 577.041.1’s purpose of providing drivers
with a reasonable opportunity to have a meaningful contact with an attorney in order to
decide whether to submit to a chemical test and, accordingly, would create absurd results.
In addition, section 577.041.1’s right to speak privately with an attorney does not
interfere with the State’s important goal of obtaining a timely, accurate, and valid
chemical test. See Rogers v. Dir. of Revenue, 184 S.W.3d 137, 144 (Mo. App. 2006)
(“When a driver has been arrested for driving while intoxicated, the completion in a
6
timely fashion of a chemical test to determine the driver’s blood alcohol content is
imperative.”). A driver’s right to privacy in speaking with his attorney is consistent with
the Code of State Regulations’ required 15-minute observation period prior to the
administration of chemical testing. During the 15-minute observation period “the
operator shall remain close enough to a subject to reasonably ensure, using the senses of
sight, hearing, or smell, that a test subject does not smoke, vomit, or have any oral intake
.... Direct observation is not necessary to ensure the validity or accuracy of the test
result.” 19 CSR 25-30.011(2)(H) (emphasis added).
Accordingly, an officer need not stand close enough to hear a driver’s
conversation to ensure the validity or accuracy of test results. Because 19 CSR 25-
30.011(2)(H) requires only a 15-minute observation period, it was not necessary for the
officer to be near Roesing during the first five minutes of the 20-minute time period after
Roesing was read the implied consent law. 8 After the first five minutes passed, the
officer should have positioned himself in a way that allowed him to visually observe
Roesing to ensure the validity of Roesing’s test results in accordance with 19 CSR 25-
30.011(2)(H) while also ensuring Roesing’s conversation remained private in accordance
with section 577.041.1. 9
8
The 20-minute clock provided in section 577.041.1 begins to run after the driver is read the
informed consent law. Norris, 304 S.W.3d at 726.
9
In Clardy v. Director of Revenue, the court of appeals, relying on the regulation, held that the
driver’s statutory right to counsel was not violated when the officer remained in the room during
the driver’s conversation with an attorney but did not hear the conversation. 896 S.W.2d 53, 55-
56 (Mo. App. 1995). Clardy is distinguishable from the instant case because there was no
evidence in Clardy that the driver’s conversation with his attorney was overheard and,
accordingly, no violation of his right to counsel. Id. Here, the officer was able to hear Roesing’s
end of the conversation, which hindered Roesing’s ability to speak candidly with his attorney
7
Section 600.048.3 further compels the conclusion that privacy is inherent in
section 577.041.1. In interpreting the meaning of section 577.041.1, the primary rule of
statutory interpretation is to give effect to legislative intent in the plain language of the
statute. Stiers v. Dir. of Revenue, 477 S.W.3d 611, 615 (Mo. banc 2016). But if the plain
language of a statute leads to an illogical or absurd result that defeats the purpose of the
legislation, rules of statutory construction are employed. Ben Hur Steel Worx, LLC v.
Dir. of Revenue, 452 S.W.3d 624, 626 (Mo. banc 2015). Because section 577.041.1’s
purpose would be defeated if privacy were not inherent in the statute’s right to contact
counsel, this Court employs the rules of statutory interpretation to further ascertain the
legislature’s intent. Under the doctrine of in pari materia, statutes relating to the same
subject matter should be construed to achieve a harmonious interpretation. Williams v.
State, 386 S.W.3d 750, 754 (Mo. banc 2012). Section 600.048.3 10 requires law
enforcement to have a private room available for a person held under a charge “to talk
privately with his or her lawyer.” State ex rel. Healea v. Tucker, 545 S.W.3d 348, 352
n.2 (Mo. banc 2018).
and could have tainted the advice his attorney provided him, resulting in Roesing’s inability to
make an informed decision regarding whether to submit to a chemical test.
10
Section 600.048.3 provides:
It shall be the duty of every person in charge of a jail, police station, constable’s or
sheriff's office, or detention facility to make a room or place available therein
where any person held in custody under a charge or suspicion of a crime will be
able to talk privately with his or her lawyer, lawyer’s representative, or any
authorized person responding to a request for an interview concerning his or her
right to counsel.
(Emphasis added).
8
The facts of this case are also within the ambit of section 600.048.3, as Roesing
spoke with his attorney while being held at the police station after being arrested for
driving while intoxicated. 11 Section 600.048.3 was effective in 1982, nine years before
the legislature amended section 577.041.1 to include the right to attempt to contact an
attorney. “It is presumed that the General Assembly legislates with knowledge of
existing laws.” Turner v. Sch. Dist. of Clayton, 318 S.W.3d 660, 667 (Mo. banc 2010).
Consequently, the legislature’s decision not to eliminate the right to privacy when it
amended section 577.041 to include the right to attempt to contact and speak with an
attorney further indicates the right is inherent in that statute.
By listening to and recording Roesing’s end of the conversation, law enforcement
obstructed his opportunity to speak privately with his attorney to make an informed
decision as to whether to refuse the chemical test pursuant to section 577.041.1. Because
Roesing’s section 577.041.1 right to counsel was violated, his refusal of the chemical test
was not voluntary and unequivocal.
To warrant relief, Roesing must have been prejudiced as a result of the officer’s
failure to comply with section 577.041.1. Norris, 304 S.W.3d at 726; White, 255 S.W.3d
at 580. The burden is on the director to prove the driver was not prejudiced. Norris, 304
S.W.3d at 726. The officer stood approximately three feet from Roesing and testified he
11
The dissenting opinion asserts that section 600.048.3 does not apply to this case. Section
600.048.3, however, pertains to “any person held in custody under a charge or suspicion of a
crime.” (Emphasis added). Accordingly, section 600.048.3 is a statutory right that applies to
drivers, like Roesing, who are held at a police station under suspicion of driving while
intoxicated. Contrary to the dissenting opinion’s assertion, section 600.048.3 is not limited to
those situations in which a constitutional right to counsel attaches.
9
was able to hear Roesing’s end of the conversation. The conversation was also audio and
video recorded, despite Roesing’s attorney specifically requesting privacy. The audio
and video recordings were distributed to the prosecuting attorney’s office for use in
Roesing’s criminal case. Roesing was deprived of a meaningful consultation with his
attorney and was discouraged to speak candidly. Under these circumstances, the director
failed to show Roesing was not prejudiced by being denied his statutory right to a
reasonable opportunity to contact an attorney. See Norris, 304 S.W.3d at 727; Riley, 378
S.W.3d at 441 (“Failing to comply with those statutory safeguards brings into question
the ‘unequivocal voluntariness’ of the driver’s decision to refuse or consent to a blood
test, thereby constituting prejudice to the driver.” (footnote omitted)).
10
Conclusion
Because law enforcement deprived Roesing of his right to confer privately with
his attorney, and the director failed to show that Roesing was not prejudiced, Roesing’s
refusal to consent to the chemical test was not voluntary and unequivocal under section
577.041. The circuit court erred in sustaining the revocation of Roesing’s driving
privileges. The judgment is reversed, and the case is remanded.
______________________________
Mary R. Russell, Judge
Breckenridge, Draper, and Stith, JJ., concur;
Powell, J., dissents in separate opinion;
Fischer, C.J., and Wilson, J., concur in opinion
of Powell, J.
11
SUPREME COURT OF MISSOURI
en banc
JEREME ROESING, )
)
Appellant, )
)
v. ) No. SC97165
)
DIRECTOR OF REVENUE, )
)
Respondent. )
DISSENTING OPINION
I respectfully dissent. Section 577.041 1 confers no right to privately consult with
an attorney before deciding whether to refuse a chemical breath test. Because the plain
language of § 577.041.1 confers only the right to “twenty minutes in which to attempt to
contact an attorney,” and Roesing received the benefit of that right, I would affirm the
circuit court’s judgment sustaining the revocation of Roesing’s driving privileges. 2
This Court’s role is to declare the law, not to make it. See State v. Freeman, 269
S.W.3d 422, 430 (Mo. banc 2008) (Wolff, J., concurring). The principal opinion
1
All statutory references are to RSMo Supp. 2013.
2
The principal opinion issued by the court of appeals in this case affirmed the circuit
court’s judgment with a thoughtful and comprehensive legal analysis. See Roesing v. Dir.
of Revenue, WD80585, 2018 WL 1276969 (Mo. App. Mar. 13, 2018). Because the legal
reasoning is sound, this separate opinion will borrow substantially from the court of
appeals’ principal opinion without further attribution.
encroaches on the general assembly’s legislative authority by reading a right to private
consultation into § 577.041.1 that the plain text of the statute does not confer. As the
principal opinion notes, “the primary rule of statutory interpretation is to give effect to
legislative intent in the plain language of the statute.” Slip op. at 8 (citing Stiers v. Dir. of
Revenue, 477 S.W.3d 611, 615 (Mo. banc 2016)). But after articulating this fundamental
principle, the principal opinion proceeds to employ canons of statutory construction to
reach a conclusion beyond the plain language of § 577.041.1. Id. at 8-9.
“[I]f applied ‘haphazardly or indiscriminately,’ the canons of statutory
interpretation can lead to a problematic ‘result-oriented jurisprudence.’” State ex rel.
Hillman v. Berger, 566 S.W.3d 600, 605-06 (Mo. banc 2019) (citing Parktown Imps., Inc.
v. Audi of Am., Inc., 278 S.W.3d 670, 672-73 (Mo. banc 2009)). When this Court can
ascertain the meaning of a statute from its plain text, there is no need to resort to canons of
statutory construction because, “‘[w]hen the words are clear, there is nothing to construe
beyond applying the plain meaning of the law.’” Bateman v. Rinehart, 391 S.W.3d 441,
446 (Mo. banc 2013) (quoting State ex rel. Valentine v. Orr, 366 S.W.3d 534, 540 (Mo.
banc 2012)). Indeed, this Court must “refrain from applying rules of construction unless
there is some ambiguity” in the statute. Ross v. Dir. of Revenue, 311 S.W.3d 732, 735 (Mo.
banc 2010); Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996) (“Where there is
no ambiguity, we cannot look to any other rule of construction.”).
Section 577.041 is a civil statute governing chemical breath tests administered to
drivers suspected of impaired driving. The statute states, in pertinent part, “If a person
when requested to submit to any test allowed pursuant to section 577.020 requests to speak
2
to an attorney, the person shall be granted twenty minutes in which to attempt to
contact an attorney.” § 577.041.1 (emphasis added). It is clear from the plain language
of this provision that § 577.041.1 confers no right to private consultation with an attorney.
Indeed, as it clearly states, the statute provides nothing more than the right to “twenty
minutes in which to attempt to contact an attorney.” § 577.041.1; see also State ex rel.
Young v. Wood, 254 S.W.3d 871, 873 (Mo. banc 2008) (“When the statute’s language is
unambiguous, a court must give effect to the legislature’s chosen language.”).
Significantly, this Court has never recognized a constitutional right to counsel in
license revocation cases. See Albrecht v. Dir. of Revenue, 833 S.W.2d 40, 41 (Mo. App.
1992) (explaining “Missouri courts have held that an arrested person has no constitutional
right to speak with an attorney prior to deciding whether or not to submit to a breathalyzer
test”). Nor has the legislature created a statutory right to counsel. Rather, the legislature
created, and Missouri precedent recognizes, only the statutory right to “twenty minutes in
which to attempt to contact an attorney” pursuant to § 577.041.1. White v. Dir. of Revenue,
255 S.W.3d 571, 578 (Mo. App. 2008) (explaining “section 577.041.1 does provide a
limited statutory right to attempt to confer with an attorney” before deciding whether to
submit to a chemical breath test).
As to the extent of the statutory right conveyed by § 577.041.1, the general assembly
has nearly unfettered “power to define the right it has created.” Estate of Overby v. Chad
Franklin Nat’l Auto Sales N., LLC, 361 S.W.3d 364, 378 (Mo. banc 2012). When courts
can clearly discern the legislature’s intent “by giving the language employed in the statute
its plain and ordinary meaning,” courts have no authority to read a contrary intent into the
3
statute. Pavlica v. Dir. of Revenue, 71 S.W.3d 186, 189 (Mo. App. 2002) (citing Habjan
v. Earnest, 2 S.W.3d 875, 881 (Mo. App. 1999)). “The purpose of [§ 577.041.1] is to
provide a person with a reasonable opportunity to contact an attorney to make an
informed decision as to whether to submit to a chemical test.” White, 255 S.W.3d at 578
(emphasis added); see also Christensen v. Dir. of Revenue, 128 S.W.3d 171, 175 (Mo. App.
2004) (holding the only right § 577.041.1 conveys is the statutory right “that twenty
minutes be granted to attempt to contact an attorney”). Because the legislature’s intent is
clear from the plain language of § 577.041.1, this statute should not be read to provide any
more than the right to “twenty minutes in which to attempt to contact an attorney.”
§ 577.041.1.
In enacting § 577.041.1, the general assembly elected to stop short of creating a
statutory right to counsel. Instead, it balanced important policy considerations and created
a limited statutory right to attempt to contact an attorney before deciding whether to submit
to a chemical breath test. This Court must defer to the general assembly’s determinations
of public policy. Budding v. SSM Healthcare Sys., 19 S.W.3d 678, 682 (Mo. banc 2000).
Because Roesing had 20 minutes to attempt to contact an attorney, all of Roesing’s
statutory rights as provided by § 577.041.1 were satisfied, and the director’s revocation of
his driving privileges was valid. 3
3
The only Missouri cases that have found a violation of § 577.041.1 are consistent with
this construction of the statute. See, e.g., Norris, 304 S.W.3d at 727 (finding section
577.041.1 was violated when a driver requested an attorney and was not given 20 minutes
to attempt to contact an attorney after being informed of the implied consent law); White,
255 S.W.3d at 579-80 (finding section 577.041.1 was violated when a driver requested an
attorney and was not given “the full twenty minutes” to contact an attorney); Schussler v.
4
This result is consistent with Missouri precedent. In Clardy v. Director of Revenue¸
896 S.W.2d 53, 54 (Mo. App. 1995), a person arrested on suspicion of impaired driving
was read the informed consent law and requested the opportunity to contact an
attorney. The driver “requested privacy, [and] that the officers move away from him so
that they could not hear his conversation,” as they “were within arm[’]s reach.” Id. The
driver’s request for privacy was denied. Id. The driver thereafter refused to submit to a
chemical test, and his license was revoked. Id. On appeal, the driver argued he “was
effectively denied his right to counsel under Missouri law.” Id. Noting “[t]here was no
Missouri case on point,” the court of appeals considered “City of Mandan v. Jewett, 517
N.W.2d 640 (N.D. 1994) as being instructive.” Clardy, 896 S.W.2d at 55. “In Jewett, the
officers were in the same room as the accused and testified they heard his end of the
conversation.” Id. Still, this alone was insufficient to hold Jewett’s limited statutory right
to attempt to contact counsel had been violated. Id. Clardy reached the same conclusion
Fischer, 196 S.W.3d 648, 653 (Mo. App. 2006) (finding section 577.041.1 was violated
when driver requested an attorney after receiving Miranda warning, but before being read
the implied consent law, and then was not given 20 minutes to attempt to contact an
attorney after being read the implied consent law); Kotar v. Dir. of Revenue, 169 S.W.3d
921, 926-27 (Mo. App. 2005) (finding section 577.041.1 was violated when a law
enforcement officer chose to try to call an attorney for a driver rather than allowing the
driver himself 20 minutes to attempt to contact an attorney); Bacandreas v. Dir. of Revenue,
99 S.W.3d 497, 501 (Mo. App. 2003) (finding section 577.041.1 was violated when the
Director did not establish a driver was given a full 20 minutes to attempt to contact an
attorney); Keim v. Dir. of Revenue, 86 S.W.3d 177, 180 (Mo. App. 2002) (finding section
577.041.1 was violated when a driver was given only nine minutes to attempt to contact an
attorney and the director did not establish the driver abandoned further attempts to contact
an attorney); Glastetter v. Dir. of Revenue, 37 S.W.3d 405, 407 – 408 (Mo. App. 2001)
(finding § 577.041.1 was violated when a driver was only given 18 minutes to attempt to
contact an attorney and the director did not establish the driver abandoned further efforts
to contact an attorney).
5
as Jewett and found, although the officers could have given Clardy more space while he
was on the phone with his attorney, not doing so, all things considered, did not deprive him
of the limited right conferred by § 577.041.1. Id. at 56. 4
An analogous result was reached in J.P.B. v. Greene County Juvenile Office, 509
S.W.3d 84 (Mo. banc 2017). In J.P.B., this Court observed that a natural parent in a
termination of parental rights proceeding has “no constitutional right to counsel in this
context but, pursuant to § 211.462.2, a natural parent has a statutory right to counsel in a
termination of parental rights proceeding and, therefore, an implied right to effective
assistance of counsel.” Id. at 97. J.P.B.’s father argued his statutory right to counsel (and,
therefore, the implied right to effective assistance of counsel) was denied because “he was
unable to have private conversations with his counsel during trial due to the presence of
Department of Corrections personnel while Father communicated via
videoconference.” Id. This Court concluded “a parent does not have to be able to
communicate at all with counsel during trial, let alone confidentially, for counsel to be
effective.” Id. If private communications were not required to afford a natural parent all
of his statutory rights in a termination of parental rights proceeding, where there is a right
to counsel, see id., there is no basis to conclude private communications are required to
4
The principal opinion attempts to distinguish Clardy by focusing on the fact there was
no evidence in Clardy that any law enforcement officer overhead the driver’s conversation
with his attorney whereas, in this case, there was evidence that a law enforcement officer
overheard Roesing’s phone call with his attorney. Slip op. at 7-8 n.9. But, under the plain
language of the statute, whether any officers overheard Roesing’s conversation with his
attorney is immaterial. The principal opinion’s distinction, therefore, is one without a
difference. Roesing’s refusal to submit to chemical testing was valid so long as he received
the statutory 20 minute period in which to attempt to contact an attorney.
6
afford a driver the limited statutory right to attempt to contact counsel for the purpose of
determining whether to submit to chemical breath testing.
The principal opinion relies on cases from other jurisdictions to support its
conclusion that § 577.041.1 confers a right to private consultation, but those cases are
distinguishable from the instant case. None of those cases come from states that have a
statute providing the limited right to attempt to contact counsel before deciding whether to
submit to a breath test. Rather, those cases found a right to private consultation either (1)
because the statutes at issue textually conferred the right to communicate with counsel, see
Bickler v. N.D. State Highway Comm’r, 423 N.W.2d 146, 147 (N.D. 1988), 5 and Farrell
v. Municipality of Anchorage, 682 P.2d 1128, 1130 (Alaska Ct. App. 1984), 6 or (2) because
the case was criminal, and the court’s conclusion stemmed from the right to counsel
attendant in criminal cases. See State v. Holland, 711 P.2d 592, 595 (Ariz. 1985) (citing
Gideon v. Wainright, 372 U.S. 335 (1963)); People v. Moffitt, 19 N.Y.S.3d 713, 719 (N.Y.
Crim. Ct. 2015).
Finally, Roesing and the principal opinion contend reading a right to private
consultation into § 577.041.1 is necessary to avoid an absurd result because § 600.048.3
“requires law enforcement to have a private room available for a person held under a charge
5
The statute the North Dakota court found conferred a right to private consultation stated,
in pertinent part, “The accused in all cases must be taken before a magistrate without
unnecessary delay, and any attorney at law entitled to practice in the courts of record of
this state, at his request, may visit such person after his arrest.” Kuntz v. State Highway
Comm’r, 405 N.W.2d 285, 287 (N.D. 1987) (citing N.D. Cent. Code § 29-05-20 (1987)).
6
The relevant Alaska statute stated in pertinent part, “Immediately after an arrest, a
prisoner shall have the right to telephone or otherwise communicate with his attorney.”
Alaska Stat. § 12.25.150(b) (1984).
7
‘to talk privately with his or her lawyer.’” Slip op. at 8-9 (citing State ex rel. Healea v.
Tucker, 545 S.W.3d 348, 352 n.2 (Mo. banc 2018)). But this is not the case. “An absurdity
is a result which is contrary to reason or which ‘could not be attributed to a man in his right
senses.’” Tumlinson v. Norfolk & W. Ry. Co., 775 S.W.2d 251, 253 (Mo. App. 1989)
(quoting State v. Hayes, 81 Mo. 574, 585 (1884)). Thus, the absurdity bar is a high one, to
which this case does not rise. In Hillman, this Court found enforcing two facially
unambiguous probation statutes together created an absurd result because doing so led to
an impossible situation. 566 S.W.3d at 608. This Court explained:
It would be an absurd result if the legislature intended to require a probationer
to pay full restitution as a mandatory condition of her probation under section
559.105.2 prior to the running of the original term of probation, while
simultaneously mandating the probationer be discharged from probation as
soon as she accrued sufficient ECCs, even though she had failed to pay her
restitution obligation in full.
Id. Only because it was impossible to effectuate both statutes together did this Court find
doing so led to an absurd result.
By contrast, it is not necessary in this case to simultaneously effectuate both
§ 577.041.1 and § 600.048.4. Pursuant to § 577.041.1, Roesing was provided 20 minutes
to attempt to contact his attorney, he succeeded in contacting his attorney, and he discussed
with his attorney whether he should refuse to submit to the breath test. The principal
opinion contends § 577.041.1 must be read in pari materia with § 600.048.3. Slip op. at 8.
Section 600.048.3, however, does not apply to this case because it requires private rooms
be made available only for consultations with suspects “held in custody under a charge or
8
suspicion of a crime,” or, in other words, when suspects have a recognized constitutional
right to consult with counsel. § 600.048.3.
Here, the right to consult with counsel has not attached, as “Missouri courts have
held that an arrested person has no constitutional right to speak with an attorney prior to
deciding whether or not to submit to a breathalyzer test,” and § 577.041.1 confers only the
limited statutory right “to attempt to contact an attorney” before deciding whether to submit
to the test. Albrecht, 833 S.W.2d at 41. As such, there is no constitutional or statutory
right to consult with counsel attendant to this situation. Section 600.048.3, therefore,
imposes no obligation to provide a private room for a person to confer with his or her
attorney when deciding whether to submit to chemical breath testing. Accordingly,
§ 577.041.1 and § 600.048.3 are unrelated and need not be read in pari materia to avoid an
absurd result. See State ex rel. Robinson v. Lindley-Meyers, 551 S.W.3d 468, 474 n.4 (Mo.
banc 2018) (reading § 374.730 and § 374.750 in pari materia because they were both
related to bond agent licensing requirements).
For these reasons, this Court should reject the temptation to expand the meaning of
the statutory phrase “twenty minutes in which to attempt to contact an attorney,” which,
before today’s decision, was consistent with the plain language of § 577.041.1. Until
today, Missouri courts have declined to read a right of private consultation into
§ 577.041.1, and the facts of this case do not justify departing from this precedent. Nor
should this Court engage in judicial policymaking. The Court instead should constrain the
rights conveyed by statute to the plain language enacted by the legislature. Roesing
received the benefit of all statutory rights conferred to him by § 577.041.1 when law
9
enforcement gave him 20 minutes to attempt to contact his attorney. Roesing’s refusal to
submit to chemical testing, therefore, was valid. Because Roesing refused to submit to
chemical testing after having a reasonable opportunity to attempt to contact his attorney,
the director lawfully suspended his driver’s license pursuant to § 577.041.1. For these
reasons, I respectfully dissent.
___________________
W. Brent Powell, Judge
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