474 U.S. 1027 (1985)

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U.S. Supreme Court


474 U.S. 1027

Janice Marie NYFLOT
No. 85-636

Supreme Court of the United States

December 16, 1985

The appeal is dismissed for want of a substantial federal question.

Justice WHITE, with whom Justice STEVENS joins, dissenting.

Shortly after 1:30 o'clock on the morning of September 23, 1984, appellant Janice Nyflot was arrested for driving under the influence of alcohol. She immediately requested that she be allowed to speak with an attorney, but this request was denied. She was then taken to the local law enforcement center. There, she was advised that state law required that she be tested to determine if she was under the influence of alcohol or a controlled substance and that refusal to allow such a test would result in her driver's license being revoked for a minimum of one year. She was

Page 474 U.S. 1027 , 1028

further advised that refusal to take the test could be offered in evidence against her at trial. Finally, she was told that if she consented to the test and the test indicated that she was under the influence of alcohol or a controlled substance, she would be subject to criminal prosecution and her right to drive could be revoked for a minimum of 90 days. And she was advised that she had the right, after submitting to the testing, to consult with an attorney and to have additional tests done by someone of her own choosing. These admonitions complied with the advice requirements of the state implied consent statute. See Minn.Stat. 169.123, subd. 2(b ) (1984).

After being thus advised, Nyflot informed the police officer that she would not submit to testing without first speaking to an attorney. She was again told that she would not be allowed to speak with an attorney before deciding whether to take the test. She again declined to consent to the test. The police officer then informed her that she had effectively refused the test and allowed her to contact her attorney. Immediately after contacting her attorney, she indicated her willingness to take the test, but she was told that she had been deemed to have refused it and could no longer consent. Her license was then revoked for one year based on her refusal.

The state trial court upheld the revocation against Nyflot's challenge that she had a right to counsel for the purpose of determining whether to consent to the blood alcohol test, which right had been unconstitutionally denied. The Minnesota Court of Appeals reversed, holding that a limited right to counsel was provided by state law. 365 N. W.2d 266 (1985). The Minnesota Supreme Court, with two justices dissenting, reversed again and upheld the revocation. 369 N.W.2d 512 ( 1985).

The Minnesota Supreme Court first rejected the Court of Appeals' conclusion that a right to counsel in this situation was provided by state law. Then, turning to Nyflot's federal constitutional challenge, the court held that no Sixth Amendment right to counsel extended to the decision whether to consent to testing. The court reasoned that Kirby v. Illinois, 406 U.S. 682 (1972), concluded that "the Sixth Amendment right to counsel did not attach until judicial proceedings are formally commenced (by indictment, complaint or substitute for complaint)." 369 N.W.2d, at 516. See also United States v. Gouveia, 467 U.S. 180 (1984). Although acknowledging that this Court has recognized exceptions [474 U.S. 1027 , 1029]

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