Seders v. Powell, Comr. of Motor Vehicles

250 S.E.2d 690 (1979) 39 N.C. App. 491

Donald A. SEDERS
v.
Edward L. POWELL, Commissioner of Division of Motor Vehicles.

No. 7818SC228.

Court of Appeals of North Carolina.

January 16, 1979.

Smith, Patterson, Follin, Curtis, James & Harkavy by Charles A. Lloyd, Greensboro, for plaintiff-appellant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William B. Ray and Deputy Atty. Gen. William W. Melvin, Raleigh, for the State.

HEDRICK, Judge.

By assignment of error number one, plaintiff contends that the evidence is insufficient to support the trial court's finding that the plaintiff willfully refused to submit to the breathalyzer test. Plaintiff argues that his refusal to take the test cannot be considered willful because it resulted not from any intentional act on his part but rather as a result of his accidentally allowing the thirty minute period to elapse while waiting for his attorney to contact him. Plaintiff argues that it is essential for the State to show that he was made aware of the passage of time in order for his refusal to be willful. We disagree.

In Creech v. Alexander, 32 N.C.App. 139, 143, 231 S.E.2d 36, 38, cert. denied, 293 N.C. 589, 239 S.E.2d 263 (1977), a case that is factually similar to the present one, the court held:

Once the breathalyzer operator fully informed petitioner of his rights with regard to the breath test, there certainly was no obligation upon him to remind petitioner of the effect of his refusal to submit to the test. Petitioner's delay in taking the test, after being advised of the effect of his refusal, was at his own peril.

This assignment of error has no merit.

Plaintiff next contends that in addition to the statutory right "to call an attorney" granted by G.S. § 20-16.2(a)(4), he has a constitutional right granted by the Sixth Amendment to confer with counsel prior to making a decision as to whether he would take the breathalyzer test, and that in the present case he was denied a reasonable opportunity to consult with counsel prior to making his decision.

Plaintiff has no right to counsel under the Federal Constitution in this situation. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); accord, Price v. North Carolina Department of Motor Vehicles, 36 N.C.App. 698, 245 S.E.2d 518 (1978). With virtual unanimity, courts of other states that have confronted this question have held that an individual has no right to counsel before deciding whether to submit to a breathalyzer test because the resulting proceedings for the suspension of a driver's license are civil or administrative in nature, rather than criminal, e. g., Goodman v. Orr, 19 Cal.App.3d 845, 97 Cal.Rptr. 226 (1971); State v. Palmer, 291 Minn. 302, 191 N.W.2d 188 (1971); Lewis v. Nebraska State Dept. of Motor Vehicles, 191 Neb. 704, 217 N.W.2d 177 (1974); Capretta v. Motor Vehicles Division, 29 Or.App. 241, 562 P.2d 1236 (1977), or because the driver is deemed to have consented to the test when he operates a motor vehicle on the State's highways, e. g., State v. Allen, 14 N.C.App. 485, 188 S.E.2d 568 (1972); Deaner v. Commonwealth, 210 Va. 285, 170 S.E.2d 199 (1969). This assignment of error has no merit.

Finally, plaintiff argues that requiring him to submit to the breathalyzer test "within exactly thirty minutes of the time he was warned of his statutory rights constituted a violation of [his] rights to due process of law in that such a time limitation is irrational and arbitrary."

In the present case, however, the plaintiff has no constitutional right to the assistance of counsel prior to deciding whether to submit to the breathalyzer test. Any right to consult with an attorney is therefore solely a matter of statutory right. As the legislature is not required to permit an accused any time at all in which to attempt to contact an attorney prior to taking the test, we fail to see how a statute granting an accused thirty minutes to "call an attorney" can violate plaintiff's due process rights. We further reject any implication in Price v. North Carolina Department of Motor Vehicles, supra, that a person would have more than thirty minutes in which to telephone his attorney. We think the statute clearly expressed the legislative intent to place a thirty minute limitation on the time that a breathalyzer test may be delayed while an individual telephones his attorney. Plaintiff, in this case, had no right to delay the test in excess of thirty minutes while waiting for his attorney to return his call. His declination to take the breathalyzer test was thus a willful refusal under G.S. § 20-16.2.

For these reasons, the decision of the trial court in upholding the revocation of plaintiff's driving privilege is affirmed.

Affirmed.

VAUGHN and ARNOLD, JJ., concur.