Brosan v. Cochran

• Decision Date: 01 September 1986
• Docket Number: No. 25,25
• Parties: , 55 USLW 2326 George BROSAN v. Gil COCHRAN et al. ,
• Court: Maryland Court of Appeals

Page 662

307 Md. 662

516 A.2d 970, 55 USLW 2326

George BROSAN v. Gil COCHRAN et al.

No. 25, Sept. Term, 1986.

Court of Appeals of Maryland.

Nov. 10, 1986.

James J. Doyle, III, Asst. Atty. Gen., of Pikesville (Stephen H. Sachs, Atty. Gen., on the brief, Baltimore), for appellant.

Ellen Luff (Gil Cochran, on the brief), Annapolis, for appellees.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH, McAULIFFE and ADKINS, JJ.

MURPHY, Chief Judge.

This case presents questions relating to the claimed constitutional right (1) of an individual apprehended for drunk driving to a face-to-face consultation with his attorney prior to deciding whether to submit to a police-administered breathalyzer test and (2) of an attorney to administer his own breathalyzer test to a drunk driving client, as part of his legal representation of the client, prior to advising him whether to submit to the State-administered sobriety test.

I.

Maryland Code (1984 Repl.Vol.) § 16-205.1(a) of the Transportation Article provides that any person detained on suspicion of driving while intoxicated or under the influence of alcohol "is deemed to have consented ... to take a chemical test to determine the alcohol content of his blood." Subsection (b) provides that such an individual may not be compelled to take the test but that refusal to do so will result in a license suspension for a specified period of time. Code (1984 Repl.Vol.) § 10-303 of the Courts and Judicial Proceedings Article requires that the chemical test be administered within two hours of apprehension.

On March 12, 1984, the Superintendent of the Maryland State Police Department issued General Order No. 01-84-73, establishing procedures governing the right of an accused to consult with legal counsel prior to the administration of a breathalyzer test for sobriety. The order provided that although the accused was not to be offered the right to consult with an attorney prior to making the decision whether to submit to or refuse the test, "a brief opportunity to make telephone contact with his attorney" would be permitted upon request. Notwithstanding the presence of the accused's attorney at the police barracks at the time the suspect was being held for chemical testing, the order provided that only telephonic, and not face-to-face, communication would be allowed.

II.

By a complaint for injunction and declaratory relief filed on January 28, 1985 with the Circuit Court for Anne Arundel County, Gill Cochran, an attorney, and Thomas Strange, a former client, challenged the constitutionality of General Order No. 01-84-73. The complaint averred that Strange had been apprehended for driving while intoxicated on December 26, 1984; that Strange was permitted to contact Cochran by telephone; that Cochran arrived at the police barracks four minutes later and sought to consult personally with Strange; that the police refused to permit such a face-to-face consultation, limiting contact between Cochran and Strange to telephonic communication in accordance with the General Order; that as a result of his inability to personally confer with his attorney, Strange refused to take the breathalyzer test and his license was suspended. The complaint alleged a denial of Strange's constitutional right to counsel under the due process clause of the Fourteenth Amendment.

The complaint further averred that Cochran has represented a number of drunk driving suspects, including Strange; that as part of his legal representation of these clients, he promptly appears at the police barracks where the suspects are being held in order to confer personally with them and to administer his own breathalyzer test to the clients before advising them whether to take or refuse the State-administered test; and that the Superintendent's General Order so limiting discourse between attorney and client to telephonic contact inhibits his right to freely communicate with his client for the purpose of providing adequate legal advice. Cochran further alleged that because the State-administered breathalyzer tests are inaccurate, he has a professional obligation to administer his own breathalyzer test to his clients; that his administration of such a test does not interfere in any way with the timely and efficacious administration of the State-administered chemical testing process; that the General Order constitutes an impermissible interference with his right to pursue his occupation; and that the General Order amounts to an unconstitutional abridgement of his privileges and immunities, constitutes a deprivation of liberty and property without due process of law, and violates his First Amendment right to free speech. The complaint sought, among other relief, a preliminary and permanent injunction enjoining the Superintendent and his police agents from preventing personal contact and consultation between drunk driving suspects and their attorneys, and from preventing the administration by attorneys of breathalyzers to their clients within two hours of the clients' apprehension. Also sought was a declaration that General Order No. 01-84-73 was unenforceable as being in violation of the state and federal constitutions.

Following an evidentiary hearing, the Circuit Court for Anne Arundel County (Williams, J.) granted a preliminary injunction on August 19, 1985 enjoining enforcement of General Order No. 01-84-73, and further ordering that "attorneys be permitted to consult face-to-face with clients who contact them requesting consultations prior to deciding whether to submit to chemical tests for intoxication, so long as it does not interfere with the conducting of a breathalyzer test by the appropriate police agency."

The Superintendent did not appeal from the issuance of the preliminary injunction. Instead, he promulgated General Order No. 01-85-90, establishing an interim procedure pending final resolution of the litigation. The interim order, while permitting face-to-face contact between client and counsel, prohibited counsel from administering a private breath test prior to the client's election to take or refuse the State-administered test. The interim order did, however, authorize counsel to administer his own test to the client at the conclusion of the State-administered test.

After conducting an evidentiary hearing on the prayer for a permanent injunction, the court framed the issue before it as whether to enjoin the enforcement of the Superintendent's interim order "barring the use of private breathalyzers on an accused drunk driver prior to police testing." The court (Williams, J.) granted the permanent injunction. Placing reliance upon our decision in Sites v. State, 300 Md. 702, 481 A.2d 192 (1984), it held that a drunk driver suspect had a constitutional right to consult with counsel prior to deciding whether to submit to the police sobriety test, provided that the communication did not "unreasonably impede police processing." Extending the principle of Sites to the "content of the communication," the court held that the police must permit an attorney to administer a breathalyzer test to his client "as long as the device does not impair or impede the department's own testing." The court pointed out that no evidence was adduced at the trial that Cochran's breathalyzer could affect the accuracy of the Department's sobriety test; consequently, the court declined to "uphold a prohibition against the use of breathalyzers where there is no evidence that the efficacy of the police sobriety test may be impaired." The court explained:

"The department's only explanation as to why it has banned these devices is that it feels that if the accused knows his blood-alcohol level, he will refuse the department's sobriety test and the conviction rate on drunk driving arrests will go down. This may or may not be true. The civil penalty for refusing to take a sobriety test (up to six months suspended license for a first offense) would, for many, be worse than the likely criminal penalty for drunk driving. Regardless, individuals do have a right to refuse the test. Md.Transp.Code Ann., § 16-205.1(b). It is not the duty of the police, in the interest of high conviction rates, to withhold from the accused information which he may find relevant in deciding whether to exercise his right of refusal. Police may bar the use of breathalyzers, but only for legitimate reasons--where their use may impair accurate police testing."

The Superintendent appealed from the court's decree, and we granted certiorari on our own motion prior to decision by the Court of Special Appeals to consider the important issue raised in the case.

III.

In Sites, we held that a person apprehended for driving while intoxicated, but who was not yet formally charged, did not have a Sixth Amendment right to consult counsel before deciding whether to submit to a chemical sobriety test. We held, however, that a constitutional due process right to communicate with counsel did exist in those circumstances, where requested by the client, provided that such communication "will not substantially interfere with the timely and efficacious administration of the testing process" (bearing in mind the statutorily imposed two-hour post-apprehension time limit). 300 Md. at 717-18, 481 A.2d 192.

Contrary to the Superintendent's first contention, nothing in Sites limits the due process right to communicate with counsel to a single telephonic contact. Undoubtedly, the statutory time constraints imposed upon the State-administered blood alcohol testing process may well limit the client's ability to communicate with counsel other than by a single telephone conversation. But to so circumscribe the due process right far too narrowly restricts the scope of the constitutional right recognized in Sites. ¹

Nor is the constitutional right to counsel in any event limited solely to lawyer-client telephonic communication, as the Superintendent further contends. In no way did we...