                                      No. 87-184
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          1987



DARRYL GEORGE MEYER,
                   Petitioner and Appellant,
       -vs-
STATE OF MONTANA,
                   Respondent.




APPEAL FROM:       District Court of the Eighth Judicial District,
                   In and for the County of Cascade,
                   The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                    Hoyt   &   Blewett; John C. Hoyt, Great Falls, Montana
       For Respondent:
                    Hon. Mike Greely, Attorney General, Helena, Montana
                    Barbara Claassen, Asst. Atty. General, Helena
                       .
                    Patricg
                    Jeff M
                               Paul, County Attorney, Great Falls, Montana
                             lister & Tamrny Plubell, Deputy County Attys.



                                          Submitted on Briefs:   Aug. 20, 1987
                                            Decided:   November 29, 1987

Filed: Npli T.
        +,   %f    ..-
                     -1;




                                          Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
      Petitioner Darryl George Meyer appeals his driver's
license suspension pursuant to Montana's implied consent law,
§ 61-8-402, MCA.   We affirm.
      On March 8, 1987 Montana Highway Patrolman Cal Wylie
observed a vehicle driving erratically near the Beacon Bar in
Cascade County, Montana. Patrolman Wylie pulled the vehicle
over and approached the driver.      Wylie testified that he
informed appellant Darryl Meyer that Meyer appeared to be
under the influence of alcohol. Wylie then offered Meyer a
ride home. Meyer accepted.
      Approximately one hour later, Wylie again saw Meyer
driving his vehicle near the Beacon Bar.       Wylie arrested
Meyer for driving under the influence of alcohol ( D U I )  .
Meyer was taken to the Great Falls Police Station.
      At the police station, Wylie read Meyer the Montana
Implied Consent Law Advisory Form. Meyer indicated that he
understood the implied consent form.       However, appellant
Meyer requested that he call "a friend" prior to taking the
breath test. Patrolman Wylie responded that Meyer could not
make a phone call before finishing "the paperwork". At trial
Wylie testified that paperwork actually meant completion of
Meyer's DUI arrest.    After Wylie denied Meyer's request to
call a friend, Meyer refused to take a breath alcohol test.
      Patrolman Wylie seized appellant's driver's license and
the Montana Department of Justice suspended Meyer's license
pursuant to S 61-8-402, MCA, which provides in pertinent
part:
      Chemical blood, breath, or urine tests.    (1) Any
      person who operates a vehicle upon ways of this
      state open to the public shall be deemed to have
      given consent .  . .    to a chemical test of his
      blood, breath, or urine for the purpose of
     determining the al.coholic content of his blood if
     arrested by a peace officer for driving or in
     actual physical control of a vehicle while under
     the influence of alcohol.


     (3) If a resident driver under arrest refuses upon
     the request of a peace officer to submit to a
     chemical test designated by the arresting officer
     as provided in subsection (1) of this section, none
     shall be given, but the officer shall, on behalf of
     the department, immediately seize his driver's
     license.    The peace officer shall forward the
     license to the department, along with a sworn
     report that he had reasonable grounds to believe
     the arrested person had been driving or was in
     actual physical control of a vehicle upon ways of
     this state open to the public, while under the
     influence of alcohol and that the person had re-
     fused to submit to the test upon the request of the
     peace officer.   Upon receipt of the report, the
     department shall suspend the license for the period
     provided in subsection (5).

     (5) The following suspension and revocation peri-
     ods are applicable upon refusal to submit to a
     chemical test:
    (a) upon a first refusal a suspension of 90 days
    with no provision for a restricted probationary
    license;


On March 16, 1987 appellant Meyer successfully petitioned the
District Court to restore his driving privileges pending
hearing.   Following a May 11, 1987 hearing, the District
Court ordered that Meyer's driver's license be suspended for
90 days.   Meyer appeals the ord.er of the District Court.
ISSUE 1
       Did     the    District        Court     err when          it   held      that     Meyer
refused t o take a breath t e s t ?
       A p p e l l a n t Meyer c o n t e n d s t h a t h e d i d n o t r e f u s e t o t a k e
a breath  test.    Appellant argues t h a t s u b s t a n t i a l c r e d i b l e
evidence does n o t support t h e f i n d i n g s o f t h e D i s t r i c t Court
t h a t Meyer r e f u s e d t o t a k e a b r e a t h t e s t .
       The f o l l o w i n g c o n v e r s a t i o n o c c u r r e d a t t h e G r e a t F a l l s
P o l i c e S t a t i o n between Meyer and P a t r o l m a n Wylie:



       OFFICER:        ...
                      Do you u n d e r s t a n d what I h a v e r e a d t o
       you, M r . Meyer?

       MEYER:          Yes.

       OFFICER:        Flould you l i k e t o t a k e a b r e a t h t e s t f o r
       me?

       MYR:
        EE             F7el1,     can I c a l l a        --   c a l l a f r i e n d of
       mine?

       OFFICER:        F o r what?

       MEYER:          For    -   I want t o a s k him a q u e s t i o n .

       OFFICER: What -- what                  does t h a t have t o do w i t h
       taking a breath test?

       MEYER:         W e l l I j u s t want t o c a l l him.

       OFFICER: W e l l , I ' l l t e l l you what.        You c a n c a l l
       him a f t e r w e a r e d o n e w i t h t h e paperwork.    I have
       t o know r i g h t now w h e t h e r o r n o t you want t o t a k e a
       breath test.

       MEYER.:     No. I d o n ' t want t o t a k e t h e b r e a t h t e s t
       r i g h t now, b u t I w i l l c a l l t h i s p e r s o n and 1'11
       maybe t a k e i t t h e n .

       OFFICER: Why would you h a v e t o c a l l somebody t o
       f i n d o u t w h e t h e r o r n o t you are g o i n g t o t a k e t h e
       b r e a t h t e s t ? I ' m confused.
     MEYER:    Well can't I make a telephone call?
     OFFICER: When we are finished with the paperwork
     you can --
     MEYER:     --okay--
     OFFICER: -make as many telephone calls as you
            But I do need to know right now whether you
     want. - - - - - -
     will take a breath test.
     ------
     MEYER:   No.
              -
     OFFICER:  Okay.   You realize - - - going to
                                   that I am
                                             ..
     seize your Montana Driver's License. (inaudible)
     MEYER:   Yes.
              -      [Emphasis added.]
      Previously we held that a defendant who repeatedly
requested to speak with an attorney after being asked to
submit to a breath test refused by implication to take the
test.    Johnson v. Division of Motor Vehicles (Mont. 1985\,
711 P.2d 815, 817, 42 St.Rep. 2045.    In the case at hand,
appellant Meyer requested to call a friend after being asked
to consent to a breath test. Appellant was told by Patrolman
Wylie that he could not call his friend prior to taking the
breath test. Appellant Meyer then refused to take the breath
test.      Meyer's  response constitutes a refusal under
Johnson v. Division of Motor Vehicles, 711 P.2d at 817, 42
St.Rep. at 2048. The District Court properly held that Meyer
refused to submit to a breath test pursuant to 5 61-8-402,
MCA.

ISSUE 2
     Was   appellant Meyer   prejudiced   when   Patrolman Wylie
failed to instruct appellant that he had - right to counsel
                                          no
prior to taking the breath test?
     A person arrested for DUI is deemed to have consented to
take a breath test as a matter of law.      Section 62-8-402,
MCA.   Results of a breath test are not self-incriminating.
South Dakota v. Neville   (1983), 74 L.Ed.2d   748, 103 S.Ct.
916, 459 U.S. 553. Prior to taking a breath test, a defen-
dant has no right to counsel.      State v. Armfield (Mont.
1984), 693 P.2d 1226, 1229, 41 St.Rep. 2430, 2433; Art. 11,
Section 24, 1972 Mont. Const. A breath test does not consti-
tute a "critical stage event." Therefore, no right to coun-
sel exists. Armfield, 693 P.2d at 1230, 41 St.Rep. at 2433,
citing United States v. Wa.de (1967), 388 U.S. 218, 87 St.Ct.
1926, 18 L.Ed.2d 1149.
     Patrolman Wylie informed Meyer that he could not call
his friend prior to taking a breath test. In doing so, Wylie
effectively told Meyer that he could not speak to his friend,
attorney or any other person.    If arguendo, Wylie had told
appellant Meyer that he had no right to speak to an attorney,
the results would have been the same. Appellant Meyer would
have been forced to decide without assistance whether he
wished to take a breath test.    That result is exactly what
happened.
     Appellant has not challenged our holding in Armfield or
5 61-8-402, MCA. Nor has appellant presented this Court with
evidence of prejudice.   The District Court did not err when
it held that appellant was not prejudiced by Patrolman
Wylie's failure to instruct Meyer that he had no right to
counsel.    Accordingly, we hold that appellant's driver's
license was properly suspended.
     Affirmed.
We c o n c u r :
