Heinemann v. Whitman County of Wash., Dist. Court

• Decision Date: 08 May 1986
• Docket Number: No. 50076-2,50076-2
• Citation: 105 Wn.2d 796,718 P.2d 789
• Parties: Paul D. HEINEMANN, Respondent, v. WHITMAN COUNTY OF WASHINGTON, DISTRICT COURT and David J. Frazier, Judge, Petitioners.
• Court: Washington Supreme Court

Page 796

105 Wn.2d 796

718 P.2d 789

Paul D. HEINEMANN, Respondent, v. WHITMAN COUNTY OF WASHINGTON, DISTRICT COURT and David J Frazier, Judge, Petitioners.

No. 50076-2.

Supreme Court of Washington En Banc.

May 8, 1986.

James H. Kaufman, Whitman Co. Prosecutor, Colfax, Mark O. Erickson, Olympia City Atty., April McComb, Asst. City Atty., Olympia, for petitioners.

Aitken, Schauble, Patrick, Neill & Charawell, Bruce Charawell, Pullman, for respondent.

Leo Poort, Douglas Jewett, Seattle City Atty., M. Colleen Barrett, Asst. City Atty., Seattle, amicus curiae for petitioners Washington Ass'n of Sheriffs and Police Chiefs.

BRACHTENBACH, Justice.

The issue is what warnings must be given to a driver prior to being requested to perform field sobriety tests as a driver suspected of being under the influence of alcohol or drugs, RCW 46.61.502, and prior to his or her formal arrest for driving while under the influence. The Superior Court held that the defendant should have been advised of his right to counsel and suppressed the evidence of the field sobriety tests. We reverse.

Just after 1 a.m. on November 4, 1982, a Whitman County deputy sheriff observed defendant leave a tavern and cross a street toward a parked vehicle. Defendant was observed staggering and talking loudly with a companion as he walked. When defendant drove away, the deputy followed and paced defendant's vehicle at 46 to 48 m.p.h. in a 30 m.p.h. speed zone. Defendant's vehicle weaved within its lane of travel, crossed the center line twice within a 2-block distance, and then made a very wide sweeping turn onto a side street, crossing into the other lane of travel as it turned. The vehicle was then driven into the private driveway of defendant's residence.

With the intention of determining whether the defendant had been driving while intoxicated, the deputy turned on his emergency light and pulled into the driveway behind the defendant. The deputy later testified that, in his view, from the point that the emergency lights were activated defendant was not free to leave. However, the deputy did not communicate his intentions to the defendant.

Defendant got out of his vehicle and walked toward the deputy's patrol car. He appeared to be unsteady, stumbling slightly and staggering. When the two men met, the deputy noticed that the defendant smelled strongly of alcohol, his eyes were watery and bloodshot, and his general demeanor suggested that he was intoxicated. Defendant had difficulty finding his driver's license and removing it from its plastic cover.

The deputy then asked defendant to perform field sobriety tests. Had defendant refused to perform the tests, the deputy would have placed him under arrest. Defendant performed the tests, but not to the deputy's satisfaction. The deputy, therefore, concluded that he had probable cause to arrest the defendant for driving while intoxicated and at the completion of the test he arrested defendant.

Defendant was transported to the sheriff's office where he was advised of his Miranda rights. At the conclusion of a Breathalyzer test, the results of which are not at issue, defendant was cited for driving under the influence of intoxicating liquor, RCW 46.61.502.

The District Court held a hearing on defendant's motion to dismiss the case with prejudice, or in the alternative, to suppress evidence. The court heard the above evidence and concluded that the case should not be dismissed and that no evidence should be suppressed. On review of the District Court's decision, the Superior Court concluded that defendant should have been advised of his right to counsel before the sobriety tests and, therefore, the suppression of the evidence obtained in the interval between the time of probable cause and detention and the time of formal arrest and advisement of rights is the appropriate remedy.

We granted direct discretionary review of the Superior Court's decision.

The in-the-field investigation of a suspected driver under the influence creates a difficult situation. The officer attempts to remove the driver under the influence from the roads as quickly as possible according to set guidelines. The driver may attempt to cooperate with the police as much as necessary while trying to protect his or her right to privacy and right against self-incrimination. The remaining driving public wants both their roads free from drunk or drugged drivers and their individual right of privacy protected. We are given the task of setting guidelines for the officer that must be realistic and effective in dealing with suspected drivers under the influence while maintaining constitutional privacy rights for the individual on Washington roads.

The principles by which we are bound are found in constitutional law, common law and court-made rule. In our search for a balanced solution we consider: (1) the Sixth Amendment and Const. art. 1, § 22; (2) Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974 (1966); (3) JCrR 2.11; and (4) the Fourth Amendment and Const. art. 1, § 7. While considering these bases for suppression of the field sobriety test evidence we remain constantly attendant to the particularities of the in-field environment. We seek to protect the officer, the public, and the suspect driver while avoiding a full blown trial and constitutional debate on the side of the road.

I

First, the Sixth Amendment or Const. art. 1, § 22 do not provide a basis for suppression of the field sobriety test results in this case. It is well settled that an accused has a Sixth Amendment right to counsel at any critical stage in a criminal prosecution. Tacoma v. Heater, 67 Wash.2d 733, 409 P.2d 867 (1966). However, we have recently reaffirmed that the Sixth Amendment right attaches only when formal judicial criminal proceedings have been initiated against a defendant. State v. Dictado, 102 Wash.2d 277, 687 P.2d 172 (1984); State ex rel. Juckett v. Evergreen Dist. Court, 100 Wash.2d 824, 675 P.2d 599 (1984). It is only at that point that the government has committed itself to prosecute and "that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law." Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972).

In Tacoma v. Heater, supra, the court found that a critical stage was reached immediately after the police officers had arrested the defendant, conducted field sobriety tests, interrogated him, and charged him with an offense involving the element of intoxication. In State ex rel. Juckett v. Evergreen Dist. Court, supra, the Sixth Amendment right to counsel was held not to apply to a person arrested for driving while intoxicated until a critical stage is reached after a citation is issued. While Miranda protections may apply before a citation is issued and formal charges brought in order to protect the defendant against self-incrimination, it is only at a critical stage that the Sixth Amendment and Const. art. 1, § 22 right to counsel is provided in order to ensure the effective preservation and preparation of defenses to the charges.

The record in the present case reveals that defendant had neither been arrested nor received a citation at the time of the field sobriety test. The "criminal prosecution" to which the Sixth Amendment guaranties are applicable had not yet commenced. Juckett, 100 Wash. at 830, 675 P.2d 599.

II

Second, the protections afforded the United States Constitution's Fifth and Sixth Amendment rights to counsel by Miranda v. Arizona, supra, cannot be the basis for suppression of the field sobriety test results in this case. Miranda holds that if certain procedures, including the advisement of the right to counsel, are not followed before the police interrogate a suspect who is in custody, the testimonial evidence that they receive from the suspect cannot be used in trial against him. We have previously held that the application of the Miranda protections are limited to situations in which the accused is compelled to make a testimonial communication and do not apply to situations in which the accused is the source of real or physical evidence. See State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982); Mercer Island v. Walker, 76 Wash.2d 607, 458 P.2d 274 (1969); State v. West, 70 Wash.2d 751, 424 P.2d 1014 (1967). In Mercer Island, at 612, we specifically addressed the field sobriety test situation and found the performance of the tests to be nontestimonial in nature. We have also previously addressed defendant's argument that Const. art. 1, § 9, the equivalent to the Fifth Amendment, should be read more broadly so as to encompass the performance of field sobriety tests. Such an interpretation was rejected in State v. Moore, 79 Wash.2d 51, 56-57, 483 P.2d 630 (1971). Therefore, defendant's right to counsel prior to submitting to field sobriety tests is not found under a strict analysis under Miranda v. Arizona, supra.

III

Third, JCrR 2.11(c) does not provide a basis for suppression of the field sobriety tests results in this case. JCrR 2.11(c) provides:

(1) When a person is taken into custody he shall immediately be advised of his right to counsel. Such advice shall be made in words easily understood, and it shall be stated expressly that a person who is unable to pay a lawyer is entitled to have one provided without charge.

(2) At the earliest opportunity a person in custody who desires counsel shall be provided access to a telephone the telephone number of the public defender or official responsible for assigning counsel, and any other means necessary to place him in communication with a lawyer.

JCrR 2.11 extends the right to counsel to every defendant in criminal proceedings for offenses punishable by loss of liberty who has his case tried in a court of limited jurisdiction. JCrR 2.11(c) appears to have been written both to...