Sites v. State

• Decision Date: 01 September 1983
• Docket Number: No. 148,148
• Citation: 481 A.2d 192,300 Md. 702
• Parties: , 53 USLW 2172 Jacob Edward SITES v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 702

300 Md. 702

481 A.2d 192, 53 USLW 2172

Jacob Edward SITES v. STATE of Maryland.

No. 148, Sept. Term, 1983.

Court of Appeals of Maryland.

Sept. 12, 1984.

Michael R. Braudes, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on brief), for appellant.

Jillyn K. Schulze, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, William R. Hymes, State's Atty., for Howard County and Martin J. McNamara, Asst. State's Atty., Ellicott City, on brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

MURPHY, Chief Judge.

The primary issue in this case is whether a person apprehended for driving while intoxicated has a statutory or constitutional right to consult counsel before deciding whether to submit to a chemical sobriety test.

I.

The record establishes that Jacob Edward Sites was stopped for drunk driving at approximately 12:45 a.m. on May 15, 1982. At 12:55 a.m., while still at the scene, the arresting officer read Sites a standardized statement of his rights and the penalties for refusal to submit to a chemical test under the State's implied consent statute, Maryland Code (1984 Repl.Vol.), § 16-205.1 of the Transportation Article. ¹ Upon the police officer's request, Sites agreed to take a chemical sobriety test and signed the required consent form. The officer then drove him to the Howard County Police Station, a five-minute journey by car from the location of the arrest. According to Sites' testimony at trial, he thrice requested permission to telephone his attorney at some point after arriving at the police station, both before and after the test was administered, but the arresting officer said he had no right to counsel. The arresting officer's testimony was that Sites could have made such requests, although the officer had no such recollection. A breathalyzer test was administered to Sites at 1:25 a.m., resulting in a finding of 0.17 percent ethyl alcohol by weight. ² Sites was formally charged at 1:45 a.m. with driving while intoxicated.

Sites filed a pretrial motion to suppress the test results on the ground, inter alia, that he was denied his right to counsel prior to the administration of the chemical sobriety test. The Circuit Court for Howard County (Nissel, J.) ruled as a matter of law that Sites had no such right to consult counsel. The court said:

"As far as his being entitled to an attorney, there's no law that I know of that he's entitled to an attorney for the purpose of taking advice of taking a test."

Sites was thereafter convicted by a jury of driving while intoxicated. We granted certiorari prior to consideration of Sites' appeal by the Court of Special Appeals to consider the issue of public importance raised in the case. 298 Md. 353, 469 A.2d 1274.

II. The Statutory Right to Counsel

Sites maintains that he had a statutory right to consult counsel before deciding whether to submit to a chemical test for sobriety. He contends that § 16-205.1 of the Transportation Article and § 10-309 of the Courts Article mandate that police provide an opportunity to persons apprehended for drunk driving to communicate with counsel before making the decision whether to submit to the test.

Section 10-303 of the Courts Article requires that the chemical sobriety test be administered within two hours "after the person accused is apprehended." Section 10-309 provides, with certain exceptions not here applicable, that a person may not be compelled to submit to such a test. The section further provides that no inference or presumption concerning guilt arises because of refusal to submit to the test, and that the fact of refusal to submit is not admissible in evidence at the trial. Section 16-205.1(a) of the Transportation Article explicitly states that any person who operates a motor vehicle in this State is deemed to have consented (with exceptions not here pertinent) to take a chemical test to determine alcohol content if apprehended on suspicion of drunk driving. Subsection (b) of this section provides that a licensed Maryland driver, who declines to take the test, shall have his license suspended for not less than 60 days nor more than 6 months for a first offense. Section 16-205.1(b)(2) delineates the formal prerequisites which must be met before a chemical test may be administered. No right is there afforded to confer with counsel prior to deciding whether to take the test. In contrast, § 16-205.1(f)(3) specifically provides that a person refusing a chemical test may be represented by an attorney in subsequent proceedings, indicating that had the legislature intended to provide a pretest right to confer with counsel, it would specifically have so provided.

The cardinal rule of statutory construction is to ascertain and effectuate the actual legislative intent. See, e.g., In Re Arnold M., 298 Md. 515, 471 A.2d 313 (1984); Koyce v. State, Central Collection Unit, 289 Md. 134, 422 A.2d 1017 (1980). The primary source of the legislative intent is the language of the statute itself. See, e.g., Blum v. Blum, 295 Md. 135, 453 A.2d 824 (1983); Haskell v. Carey, 294 Md. 550, 451 A.2d 658 (1982). Where the statutory provisions are unambiguous, no construction is required. See, e.g., Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597, 458 A.2d 758 (1983); Brown v. Brown, 287 Md. 273, 412 A.2d 396 (1980). Thus, it is manifest that a plainly worded statute must be construed without forced or subtle interpretations designed to extend or limit the scope of its operation. Guy v. Director, 279 Md. 69, 367 A.2d 946 (1977).

The trial court found as a fact at the hearing on the motion to suppress that Sites' consent to take the test was obtained in accordance with all statutory requirements. See State v. Moon, 291 Md. 463, 436 A.2d 420 (1981); State v. Loscomb, 291 Md. 424, 435 A.2d 764 (1981). The requirements of the statute having been met, no basis exists for suppressing the breathalyzer evidence based on the claimed denial of the opportunity to consult with counsel. See generally Annot., 18 A.L.R.4th 705 (1982).

The Sixth Amendment Right To Counsel

Sites maintains that he had a right under the Sixth Amendment to the Federal Constitution to communicate with counsel prior to submitting to the chemical sobriety test. He asserts that the pretest period is a "critical stage" of the drunk driving prosecution in that the defendant is called upon to make a choice between taking or not taking the test--a choice, he says, which will have a substantial and irreversible impact on the ensuing trial. As Sites puts it, the decision whether to take the test is "the whole ball game" in drunk driving cases. He states:

"If [the drunk driving suspect] submits and is in fact intoxicated, he has virtually no chance of winning the criminal case. If he refuses, he loses his license. A police officer quickly and mechanically reading a litany of rights cannot help him to make this choice. An attorney, professionally obligated to assist the suspect, may well be able to guide him toward the least of the evils."

Under the Sixth Amendment, a right to counsel attaches, inter alia, at the time of certain evidence-gathering processes which are deemed "critical stages" of the criminal prosecution as an extension of a defendant's right to representation by counsel in court. Some courts have held that a Sixth Amendment right to counsel, which is applicable to the states through the Fourteenth Amendment, does afford a person apprehended for drunk driving a right to communicate with counsel before deciding whether to take a chemical sobriety test. See State v. Welch, 135 Vt. 316, 376 A.2d 351 (1977); State v. Fitzsimmons, 93 Wash.2d 436, 610 P.2d 893 (1980); State v. Bristor, 9 Kan.App.2d 404, 682 P.2d 122 (1984). Most courts, however, have reached a contrary conclusion, finding no Sixth Amendment right to counsel. See Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); State v. Vietor, 261 N.W.2d 828 (Iowa 1978); State v. Jones, 457 A.2d 1116 (Me.1983); Spradling v. Deimeke, 528 S.W.2d 759 (Mo.1975); State v. Petkus, 110 N.H. 394, 269 A.2d 123 (1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1522, 28 L.Ed.2d 867 (1971); Seders v. Powell, 298 N.C. 453, 259 S.E.2d 544 (1979); McNulty v. Curry, 42 Ohio St.2d 341, 328 N.E.2d 798 (1975); State v. Newton, 291 Or. 788, 636 P.2d 393 (1981); Law v. Danville, 212 Va. 702, 187 S.E.2d 197 (1972); Holmberg v. 54-A Judicial District Judge, 60 Mich.App. 757, 231 N.W.2d 543 (1975).

The Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) clearly limited the scope of that which may be deemed a critical stage of the criminal prosecution. It held that the Sixth Amendment right to counsel does not attach until or after the initiation of an adversarial criminal proceeding by way of indictment, information, or other formal charge, arraignment or a preliminary hearing of the type involved in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). The Kirby test has been reaffirmed by the Supreme Court in a number of later cases. See United States v. Gouveia, --- U.S. ----, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976). Consistent with Kirby and its progeny, we recently held in Webster v. State, 299 Md. 581, 474 A.2d 1305 (1984) that the formal charge is the legal event that marks the starting point of the right to counsel under the Sixth Amendment.

In the present case, Sites was not formally charged until 1:45 a.m. on May 15, 1982, which was twenty minutes after he took the breathalyzer test and fifty minutes after he signed the consent form. We therefore conclude...