State v. Berry, 14128
| Decision Date | 18 November 1980 |
| Docket Number | No. 14128,14128 |
| Citation | 165 W.Va. 783,271 S.E.2d 776 |
| Parties | STATE of West Virginia v. Dale Bryan BERRY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "The administrative proceedings for suspension of a driver's license under W.Va. Code, 17C-5A-1, et seq., do not violate this State's Due Process Clause." Syllabus Point 3, Jordan v. Roberts, W.Va., 246 S.E.2d 259 (1978).
2. "Where the request is made to take the ultimately designated test under the implied consent law and the licensee by his conduct or words manifests a reluctance to take the test or qualifies his assent to take the test on factors that are extraneous to the procedures surrounding the test, proof of refusal is sufficiently established." Syllabus Point 4, Jordan v. Roberts, W.Va., 246 S.E.2d 259 (1978).
Askin & Burke and Steven M. Askin, Martinsburg, for plaintiff in error.
Chauncey H. Browning, Atty. Gen., Marianne K. Hoover, Asst. Atty. Gen., Charleston, for defendant in error.
This is an appeal by Dale Bryan Berry from the suspension of his driver's license by the Commissioner of the Department of Motor Vehicles, and the affirmation of that suspension by the Circuit Court of Berkeley County. The suspension was based on the failure of appellant to submit to a breathalyzer test pursuant to the provisions of W.Va. Code, 17C-5A-1 et seq. The principal contention in this Court is that appellant was denied his constitutional right to counsel pursuant to the Sixth Amendment to the United States Constitution and Article III, § 14 of the West Virginia Constitution, in that the court found that he had refused to submit to a breathalyzer test because he requested to consult with an attorney before doing so. We disagree and affirm the judgment of the circuit court.
At approximately 12:25 a. m. on Saturday, June 26, 1976, the appellant was stopped by two state police troopers while driving south on U.S. Route 340 about two miles from Charles Town, West Virginia. One of the officers, Trooper Casto, observed that the appellant smelled of alcohol, was very unstable, and when asked for his registration and operator's license, proceeded to get out of his vehicle, but staggered and dropped his license.
The appellant was then placed under arrest and given his Miranda rights. According to Trooper Casto's testimony, he was also given an explanation of the Implied Consent Law at least twice and was specifically advised that if he refused to take the breathalyzer test the Department of Motor Vehicles would revoke his license for a period of six months, regardless of whether he was found innocent or guilty of driving under the influence of alcohol.
The appellant refused to take the breathalyzer test until after he had consulted with an attorney; he was then transported to the Jefferson County Jail and incarcerated there. Trooper Casto also testified that once at the jail, the appellant was given an opportunity to telephone his attorney but declined to do so.
The appellant's version of what occurred on the night of his arrest differs slightly. He testified that he never refused to take the breathalyzer test but did say that he wanted to consult with his lawyer "to see if I was legally responsible or if I actually had to take it, if I would lose my driver's license." The appellant added that he "specifically asked to make a phone call and was refused."
Initially we note that this case arises in the context of an administrative proceeding as opposed...
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