Keefe v. State, Dept. of Licensing

• Decision Date: 26 January 1987
• Docket Number: No. 15490-7-I,15490-7-I
• Citation: 731 P.2d 1161,46 Wn.App. 627
• Parties: Larry D. KEEFE, Appellant, v. STATE of Washington, DEPARTMENT OF LICENSING, Respondent.
• Court: Washington Court of Appeals

Page 627

46 Wn.App. 627

731 P.2d 1161

Larry D. KEEFE, Appellant, v. STATE of Washington, DEPARTMENT OF LICENSING, Respondent.

No. 15490-7-I.

Court of Appeals of Washington,

Division 1.

Jan. 26, 1987.

Reconsideration Denied March 3, 1987.

[731 P.2d 1162] Stephanie M. Searing, Kinzel, Cowan & Allen, Bellevue, for Larry D. Keefe.

Kenneth O. Eikenberry, Atty. Gen., and Gwendolyn Howard, Asst. Atty. Gen., Dept. of Licensing, Seattle, for Dept. of Licensing.

SWANSON, Judge.

Larry D. Keefe appeals the superior court judgment upholding his six-month driver's license revocation by the state Department of Licensing pursuant to RCW 46.20.308, the implied consent statute, based upon his refusal to take a Breathalyzer test. He raises these issues on appeal: (1) whether his driver's license revocation was improper where he was not advised of a right to counsel when he was asked to take the Breathalyzer test upon his arrest for driving while under the influence of alcohol and (2) whether sufficient evidence supports the trial court's finding that the arresting police officer had reasonable grounds to believe that he had been in actual physical control of a motor vehicle upon the state's public highways while under the influence of intoxicating liquor.

Upon his arrival at an accident scene in Bellevue, Washington, on November 11, 1981, Officer Gary George of the Bellevue Police Department saw a Metro bus stopped at a bus stop with a severely damaged automobile directly behind it. Keefe, who was seated behind the car's steering wheel, said that he did not know what had happened. Officer George detected a strong odor of intoxicants about Keefe and within the car's interior and noted that Keefe had facial and leg injuries but exhibited no signs of pain. Keefe was placed under arrest for driving while under the influence of intoxicants or drugs.

Keefe was taken by aid car to Overlake Hospital. Officer Officer George completed for submittal to the prosecutor the forms for the issuance of a summons on a driving-while-under-the-influence charge. The officer submitted a notarized report of Keefe's refusal to take the Breathalyzer test, and the Department of Licensing revoked Keefe's driver's license for six months based upon his refusal to take the test. Upon Keefe's appeal to the superior court, the Department's license revocation order was affirmed, and Keefe now appeals the superior court judgment.

                George testified that had Keefe been capable of leaving the accident scene on his own, he would not have been permitted to do so and that he instructed the aid car personnel that Keefe had been placed under arrest and was not to be released from the hospital without his permission.   After completing an investigation of the accident scene, Officer George went to Overlake Hospital, where he advised Keefe of the implied consent warning and his implied consent statutory rights and asked Keefe if he would take the Breathalyzer test.   Keefe refused.   After a second explanation and request, Keefe again refused to take the test
                

DRIVER'S LICENSE REVOCATION

At any critical stage in a criminal prosecution a defendant has a right to counsel under both the federal constitution's Sixth Amendment and our state constitution's article 1, section 22 (amendment 10). Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970); Heinemann v. Whitman Cy., 105 Wash.2d 796, 799-800, 718 P.2d 789 (1986). The right to counsel attaches only after the initiation of formal judicial criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972); Heinemann v. Whitman Cy., supra, 105 Wash.2d at 800, 718 P.2d 789. The Sixth Amendment right to counsel does not apply where a person is arrested for driving while intoxicated until a critical stage is reached after a citation is issued. Heinemann v. Whitman Cy., supra (citing State ex rel. Juckett v. Evergreen Dist. Ct., 100 Wash.2d 824, 829, 675 P.2d 599 (1984)).

Here the record reveals that Keefe had been arrested but had not received a citation when he was requested to take the Breathalyzer test. Criminal proceedings had not been initiated against him, triggering his Sixth Amendment right to counsel. State ex rel. Juckett v. Evergreen Dist. Ct., supra at 829-30, 675 P.2d 599; Airway Heights v. Dilley, 45 Wash.App. 87, 92-93, 724 P.2d 407 (1986).

Moreover, no right to counsel prior to taking the Breathalyzer test arose here under Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974 (1966). Heinemann v. Whitman Cy., supra, 105 Wash.2d at 800-01, 718 P.2d 789. The requirement under Miranda v. Arizona that a criminal defendant be protected against self-incrimination by being advised of his rights, including the right to counsel, prior to custodial police interrogation is limited to the compulsion to make a testimonial communication and is inapplicable where the accused is the source of real or physical evidence. Heinemann v. Whitman Cy., supra at 801, 718 P.2d 789. A breath sample given in a Breathalyzer test is real or physical evidence, not a testimonial communication. State v. Zwicker, 105 Wash.2d 228, 242, 713 P.2d 1101 (1986).

Nevertheless, while no constitutional right to counsel attaches at the precitation stage and no Miranda protections apply to a nontestimonial Breathalyzer test-taking situation, Heinemann v. Whitman Cy., supra, 105 Wash.2d at 809, 718 P.2d 789, under JCrR 2.11 a defendant has the right to counsel in criminal proceedings in a court of limited jurisdiction for offenses punishable by the loss of liberty. Unlike the constitutional right to counsel, which arises only after judicial proceedings have been initiated, the right to counsel under JCrR 2.11 accrues as soon as feasible after the defendant is taken into custody or is formally charged, and the defendant must be informed of his right immediately when he is taken into custody. Heinemann, at 802-03, 718 P.2d 789.

The court rule requires that a person in custody who desires counsel be afforded a reasonable opportunity to contact counsel, but not actual communication with an attorney. State v. Staeheli, 102 Wash.2d 305, 309-10, 685 In the present case it is undisputed that when Keefe was arrested and was taken into custody and was asked to take the Breathalyzer test, he was not advised of his right to counsel as required by the criminal court rule. Keefe argues that the failure to advise him of this right prior to requesting that he take the Breathalyzer test vitiated his refusal to take the test for purposes of an administrative proceeding to revoke his driver's license under RCW 46.20.308, ¹ the implied consent statute. Keefe's argument has merit only if for license revocation purposes he had a right to counsel before deciding whether to submit to a Breathalyzer test pursuant to RCW 46.20.308. ²

                P.2d 591 (1984);   Airway Heights v. Dilley, supra, 45 Wash.App. at 93-94, 724 P.2d 407.   Moreover, once a defendant who has been placed in custody has been advised of his Miranda rights, including the right to counsel, it is unnecessary to advise him of a right to counsel with specific reference to whether or not he should take the Breathalyzer test.   State ex rel. Juckett v. Evergreen Dist. Ct., supra, 100 Wash.2d at 830-31, 675 P.2d 599
                

Keefe argues that under State v. Fitzsimmons, 93 Wash.2d 436, 610 P.2d 893, vacated, 449 U.S. 977, 101 S.Ct 390, 66 L.Ed.2d 240, aff'd on remand, 94 Wash.2d 858, 620 P.2d 999 (1980), the implied consent statute does not preclude the application of court rules such as JCrR 2.11 and cannot act to "waive" the defendant's constitutional right to counsel in a criminal proceeding. However, the right to counsel under JCrR 2.11 and the federal and state constitutions have effect in a criminal proceeding. State ex rel. Juckett v. Evergreen Dist. Ct., supra, 100 Wash.2d at 828-30, 675 P.2d 599. The administrative license revocation proceeding at issue here is civil in nature and thus not such a proceeding. State v. Whitman Cy. Dist. Ct., 105 Wash.2d 278, 282, 714 P.2d 1183 (1986).

The implied consent law provides that the operator of a motor vehicle on Washington highways is deemed to have given consent to a chemical test to determine the alcohol content of his blood subject to the opportunity to withdraw consent. State v. Staeheli, supra, 102 Wash.2d at 309, 685 P.2d 591; Schoultz v. Department of Motor Vehicles, 89 Wash.2d 664, 667, 574 P.2d 1167 (1978). A driver's license will be revoked if he is arrested by an officer who has reasonable grounds to believe that he was driving while under the influence of intoxicating liquor and he refuses to take a Breathalyzer test after being informed of his statutory rights, including the right to refuse to take the test, and the consequences of refusal. See State v. Staeheli, supra, 102 Wash.2d at 308, 685 P.2d 591; Schoultz v. Department of Motor Vehicles, supra, 89 Wash.2d at 667-68, 574 P.2d 1167.

The underlying purpose of the implied consent statute is to provide the driver the opportunity to make an intelligent decision as to whether to exercise the statutory right of refusal. State v. Whitman Cy. Dist. Ct., supra at 281, 714 P.2d 1183; Roethle v. State Dep't of Licensing, 45 Wash.App. 607, 609, 726 P.2d 1001 (1986). Neither the statute nor the case law indicates that the right to consult with legal counsel is prerequisite to the exercise of an intelligent judgment as to whether to take the breath test pursuant to the implied consent statute. Under the statute, the officer's request that a driver submit to a Breathalyzer test is not open to debate or negotiation but rather calls for a simple "yes" or "no" answer. State v. Staeheli, supra, 102 Wash.2d at 310, 685 P.2d 591; Airway Heights v. Dilley, supra, 45 Wash.App. at 94, 724 P.2d 407.

In addressing the question as to whether a driver has a right to counsel before deciding whether to take a Breathalyzer test for...