State v. Armfield

• Decision Date: 28 December 1984
• Docket Number: No. 84-079,84-079
• Citation: 41 St.Rep. 2430,214 Mont. 229,693 P.2d 1226
• Court: Montana Supreme Court
• Parties: STATE of Montana, City of Bozeman, Plaintiff and Appellant, v. Timothy B. ARMFIELD, Defendant and Respondent.

Page 1226

693 P.2d 1226

214 Mont. 229

STATE of Montana, City of Bozeman, Plaintiff and Appellant, v. Timothy B. ARMFIELD, Defendant and Respondent.

No. 84-079.

Supreme Court of Montana.

Submitted Oct. 9, 1984.

Decided Dec. 28, 1984.

Mike Greely, Atty. Gen., Helena, Mary L. Crumbaker-Smith argued, Bozeman, for plaintiff and appellant.

H. Charles Stahmer argued, Bozeman, for defendant and respondent.

HASWELL, Chief Justice.

The City of Bozeman and State of Montana appeal from an order of the Gallatin County District Court granting suppression of the results of a breathalizer test. We reverse.

Timothy Armfield was arrested on a charge of driving while under the influence of alcohol. He was taken to the Gallatin County Detention Center and informed of the Montana consent law and of his right to refuse to submit to a blood alcohol test. He was informed, at the same time, that he did not have a right to consult an attorney before deciding whether to submit to the chemical testing. Armfield agreed to take the test.

Defendant Armfield initially filed a motion to suppress the results of the breath test in Bozeman City Court. The motion was denied and Armfield pleaded guilty. On appeal to District Court, defendant again moved to suppress the test results, asserting that he had a constitutional right to consult with an attorney before deciding whether to submit to a breathalizer test. His motion was granted, and the results of the test ordered suppressed.

The City and State challenge the District Court's finding of a limited constitutional right to counsel. Appellants' claims are correct. Neither the United States nor Montana constitutions guarantee a defendant the opportunity to seek an attorney's advice before deciding whether to submit or not to submit to a blood alcohol test.

Montana has enacted the following consent law:

"(1) Any person who operates a motor vehicle upon ways of this state open to the public shall be deemed to have given consent ... to a chemical test of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested by a peace officer for driving or in actual physical control of a motor vehicle while under the influence of alcohol. The test shall be administered at the direction of a peace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon ways of this state open to the public while under the influence of alcohol....

"...

(3) If a resident driver under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the arresting officer ... none shall be given, but the officer shall, on behalf of the division, immediately seize his driver's license. The peace officer shall forward the license to the division, along with a sworn report that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon ways of this state open to the public, while under the influence of alcohol and that the person had refused to submit to the test upon the request of the peace officer. Upon receipt of the report, the division shall suspend the license for the period provided in subsection (5).

"...

"(5) The following suspension and revocation periods are applicable upon refusal to submit to a chemical test:

"(a) upon a first refusal, a suspension of 90 days with no provision for a restricted probationary license;

"(b) upon a second or subsequent refusal within 5 years of a previous refusal, as determined from the records of the division, a revocation of 1 year with no provision for a restricted probationary license." Section 61-8-402, MCA.

Defendant does not challenge the statute's validity or the fact that his consent to testing is deemed given as a matter of law. The sole issue on appeal is whether a driver arrested on a charge of driving while under the influence of alcohol has a right to seek legal advice before deciding whether to submit or refuse to submit to a blood alcohol test.

The District Court held that the Sixth and Fourteenth Amendments afford defendant a reasonable opportunity to consult counsel prior to submitting to a breathalizer test. A "reasonable opportunity" is defined as the twenty or thirty minutes required to warm up the breathalizer.

There is no constitutional support for a finding of a limited right to seek the advice of counsel. The Sixth and Fourteenth Amendments do not guarantee defendant's counseled consent to testing where consent is deemed given as a matter of law. Standish v. Dept. of Revenue, M.V.D. (1984), 235 Kan. 900, 683 P.2d 1276, 1281 (holding, under a consent statute similar to Montana's, that when "state law deems that all drivers have given consent to chemical tests of blood or breath when arrested for driving while under the influence, ... no constitutional right to consult counsel in order to determine whether to submit to the test attaches").

I

The Sixth Amendment guarantees defendant the right to the assistance of counsel in all prosecutions. U.S. Const., Amend. VI; Art. II, Sec. 24, 1972 Mont. Const. The right attaches when the investigation focuses on the defendant (Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977) and continues through the final appeal of right. Douglas v. California (1963), 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Ross v. Moffitt (1974), 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341.

The right to counsel is ultimately intended as a protection of a defendant at trial. United States v. Ash (1973), 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (denying a right to the presence of counsel at photographic displays). The guarantee of assistance of counsel at trial does not carry with it a generalized right to legal representation or consultation.

Armfield is, of course, entitled to the assistance of counsel at trial. Argersinger v. Hamlin (1972), 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530. As a part of his right to a fair trial, he is also entitled to (1) the pretrial presence of counsel where the incident or encounter is a "critical stage" in the prosecutorial proceedings, United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (requiring counsel's presence where pretrial procedures threaten prejudice which may not be capable of reconstruction at trial), and (2) the assistance of counsel at any stage in the pretrial proceedings where the advice of counsel is essential to the protection of his Fifth Amendment privilege against self-incrimination. Escobedo, 378 U.S. at 385-387, 84 S.Ct. at 1762-1763; Massiah v. United States (1964), 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.

Armfield does not claim that he was entitled to the presence of counsel or that chemical testing is a critical stage of the prosecution. Systematized or scientific analysis of defendant's fingerprints, clothes, blood, hair, or breath does not present the problems inherent in Wade's pretrial lineup; a breathalizer test is not susceptible of the suggestive manipulation characteristic of the "critical stage" event.

"Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government's case at trial through the ordinary processes of cross-examination of the Government's expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial." Wade, 388 U.S. at 227-228, 87 S.Ct. at 1932-1933.

The presence of counsel was not required at Armfield's breathalizer test to ensure a meaningful confrontation and the effective assistance of counsel at trial.

The Massiah, Escobedo and Miranda decisions link the Fifth Amendment privilege to the Sixth Amendment's right to counsel. Escobedo and Miranda sought to preserve the privilege against self-incrimination through protection of defendant from the coercive aspects of custodial interrogation. Escobedo, 378 U.S. at 478, 84 S.Ct. at 1763; Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Massiah sought similar protections where uncounseled and undisclosed post-indictment noncustodial interrogation elicited incriminating statements. Massiah, 377 U.S. at 201, 84 S.Ct. at 1200. All three decisions characterize the right to assistance of counsel as a necessary means of preserving defendant's privilege against self-incrimination--his absolute right to refuse to testify or communicate.

The results of a breath test are not self-incriminating communications. South Dakota v. Neville (1983), 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (including defendant's communicated refusal to submit to testing within the area of unprotected physical evidence). State v. Jackson (Mont.1983), 672 P.2d 255, 40 St.Rep. 1698 (relying on Neville to hold that the admission of evidence of defendant's refusal to submit to a breathalizer test did not offend his privilege against self-incrimination). The ...