Kean, In re

• Decision Date: 10 February 1987
• Docket Number: No. 86-181-A,86-181-A
• Citation: 520 A.2d 1271
• Parties: In re KEAN. ppeal.
• Court: Rhode Island Supreme Court

Page 1271

520 A.2d 1271

In re KEAN.

No. 86-181-Appeal.

Supreme Court of Rhode Island.

Feb. 10, 1987.

Philip M. Sloan, Jr., Donna M. DiDonato, Longolucco, Vinci & Sloan, Westerly, for plaintiff.

Edward H. Newman, Adamo & Newman, Westerly, for defendant.

OPINION

FAY, Chief Justice.

In this Family Court case, the respondent, a 17 1/2-year-old juvenile, was adjudicated wayward for having driven a motor vehicle while under the influence of intoxicating beverages, in violation of G.L.1956 (1982 Reenactment) § 31-27-2, as amended by P.L.1985, ch. 150, § 39. The respondent appeals, contending inter alia, that the trial justice erred in denying his motion to suppress the results of his breathalyzer test and in using a previously uncounseled conviction for a similar violation to impose an enhanced sentence. We affirm.

The facts of this case are not in substantial dispute. On the evening of December 16, 1985, Charlestown Police Officer Raoul Lefebvre (Lefebvre) responded to a call concerning an automobile accident on Route 2 about a mile south of the police station. Upon arriving at the scene, Lefebvre observed respondent, Kean, and another person standing by a car that had gone into an embankment and struck a tree. Lefebvre noticed that Kean's speech was slurred, that his gait was unsteady, and that he had alcohol on his breath. Believing him intoxicated, Lefebvre read him his rights. ¹

Lefebvre then conducted a field-sobriety test on Kean, asking him (1) to count forward from one to twenty and backward from twenty to one, (2) to do a one-legged stand, and (3) to perform a heel-to-toe walk. When Kean failed to perform any of these tests satisfactorily, Lefebvre took him to the police station to administer a breathalyzer test.

Prior to administering the test, at 10:50 p.m., Lefebvre read Kean his breathalyzer rights. ² He then afforded Kean the opportunity to make a phone call. According to Lefebvre, he urged Kean to call his parents and then to call an attorney, both of which Kean refused to do.

Lefebvre ultimately spoke to Kean's father on the telephone, although it is unclear from the record who placed the call. The substance of the conversation is somewhat disputed. Lefebvre testified that when he told Kean's father what had occurred, the father showed no interest in being present at the station when the test was administered to his son. Kean's father testified at first that he "hoped" he had told Lefebvre that he would be coming down to the station and then more unequivocally stated that he said he would be there shortly.

At 10:57 p.m. Kean signed the breathalyzer consent form. According to Lefebvre, Kean's father called back eighteen minutes later to find out how his son was going to get home and Lefebvre suggested that he come down to take him to the hospital because he was complaining of a neck injury. Kean's father testified that he had called to remind the officer that his son was a minor and not to do anything before he arrived at the station.

After obtaining Kean's signature on the rights form, Lefebvre administered the breathalyzer test to him, the first phase of which revealed a blood-alcohol level of .27 percent. Approximately thirty-three minutes later, Lefebvre tested Kean's breath a second time, again revealing a blood-alcohol level of .27 percent. ³

Sometime after the administration of the breathalyzer test, Lefebvre presented Kean with a document entitled "Waiver of Trial Within 30 Days," which Kean refused to sign. He was then released to the custody of his parents, who had arrived at the station.

The matter was heard before the Washington County Family Court on March 25, 1986. Before the hearing began, Kean brought a motion to suppress the breathalyzer results, contending that his waiver, absent the presence and consent of his parents, was not intelligent. The hearing justice reserved decision on this motion until further testimony was taken.

In a decision rendered on April 1, 1986, the hearing justice denied the motion to suppress, allowed the breathalyzer results into evidence, and found Kean guilty of driving under the influence and wayward on that account. On April 11, 1986, noting that this was Kean's second violation of § 31-27-2, she suspended his license for one year and sentenced him to the Rhode Island Training School for Boys for six months. ⁴

On appeal, Kean claims error in the trial justice's denial of his motion to suppress, her combination of the motion to suppress hearing with the hearing on the merits, her imposition of an enhanced sentence, and her imposition of a sentence in excess of that which he would have received had he been an adult. ⁵

I DENIAL OF THE MOTION TO SUPPRESS

Section 31-27-2(c) controls the admissibility into evidence of the results of a breathalyzer test in a criminal prosecution for driving under the influence. State v. Berker, 120 R.I. 849, 857, 391 A.2d 107, 112 (1978) (analyzing predecessor to statute involved in this case, identical in its relevant terms). One of the conditions imposed upon the admissibility of such results is the consent of the defendant to the taking of the test. ⁶

Kean contends that a juvenile whose personal liberty is at stake is entitled to the presence and counsel of his parents prior to consenting to a breathalyzer test, much as an adult is entitled to the presence of counsel in the same circumstances. As such, he continues, his consent to the administration of the breathalyzer test was invalid and the admission of the results into evidence, a violation of his due-process rights.

We first note that under both federal and state law an adult has no constitutional right to counsel at the breathalyzer stage of a driving-while-under-the-influence proceeding. The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 760-66, 86 S.Ct. 1826, 1830-33, 16 L.Ed.2d 908, 914-17 (1966), held that the compulsory withdrawal of blood from a defendant suspected of driving while intoxicated does not trigger the privilege against self-incrimination or the concomitant right to counsel since the evidence so gathered is not testimonial in nature. In United States v. Wade, 388 U.S. 218, 227-28, 87 S.Ct. 1926, 1932-33, 18 L.Ed.2d 1149, 1157-58 (1967), the Court went further stating that preparatory evidence-gathering steps, such as scientific analyzing of fingerprints, blood samples, and the like are not "critical stages" of the proceedings at which an accused has a right to counsel. Applying the rule in Wade, bolstered by Schmerber, this court specifically determined that no constitutional right to counsel adheres at the moment of decision whether to submit to a breathalyzer test, even though civil or criminal penalties might flow from the refusal to submit to it. Dunn v. Petit, 120 R.I. 486, 491-92, 388 A.2d 809, 811 (1978).

Nevertheless, Kean's contention regarding the invalidity of his consent for lack of parental involvement merits our attention as it presents an issue as yet unresolved by this court. When a constitutional right is at stake, its waiver must be knowing, intelligent, and voluntary. State v. Proulx, 419 A.2d 835, 839 (R.I.1980). Although the right waived in this instance is statutory and not constitutional, ⁷ we assume, without deciding, that its waiver must satisfy the same test and shall examine the criteria used in the constitutional arena to determine if Kean's waiver was intelligent and knowing absent the presence and consent of his parents.

The United States Supreme Court in Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), held that a juvenile who was 16 1/2 years old and suspected of felony murder might waive his rights without any consultation with, or the presence of, an adult even though he had requested the presence of his probation officer. In Fare the Court held that the totality-of-the-circumstances approach used in determining the validity of an adult waiver in like circumstances is adequate to determine whether there has been a waiver even when the interrogation of juveniles is involved:

"We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits--indeed, it mandates--inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." Id. at 725, 99 S.Ct. at 2572, 61 L.Ed.2d at 212.

The majority of jurisdictions rely on the totality-of-the-circumstances test in deciding whether statements by a juvenile were given voluntarily, knowingly, and intelligently. See, e.g., West v. United States, 399 F.2d 467 (5th Cir.1968), cert. denied, 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795 (1969); United States v. Fowler, 476 F.2d 1091 (7th Cir.1973); People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (1967), cert. denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407 (1968); Interest of Stiff, 32 Ill.App.3d 971, 336 N.E.2d 619 (1975); State v. Ann Marie C., 407 A.2d 715 (Me.1979); Commonwealth v. Fay, 14 Mass. App. 371, 439 N.E.2d 855 (1982); State v. Benoit, 126 N.H. 6, 490 A.2d 295 (1985); People v. Stephen J.B., 23 N.Y.2d 611, 298 N.Y.S.2d 489, 246 N.E.2d 344 (1969); Commonwealth v. Williams 504 Pa. 511, 475 A.2d 1283 (1984).

In many of these jurisdictions, the presence or absence of a parent or "interested adult" at the time of waiver is but one factor to be considered in determining its validity. See, e.g., Commonwealth v. Fay, 14 Mass.App. at 374, 439 N.E.2d at 858; People v. Stephen J.B., 23 N.Y.2d at 616-17, 298 N.Y.S.2d at 495, 246 N.E.2d at 348; Commonwealth v. Williams, 504 Pa. at 521, 475 A.2d at 1288.

The courts adopting the...