State v. Bristor

• Citation: 682 P.2d 122,9 Kan.App.2d 404
• Decision Date: 03 May 1984
• Docket Number: No. 55283,55283
• Parties: STATE of Kansas, Appellant, v. Randy BRISTOR, Appellee.
• Court: Kansas Court of Appeals

Page 122

682 P.2d 122

9 Kan.App.2d 404

STATE of Kansas, Appellant, v. Randy BRISTOR, Appellee.

No. 55283.

Court of Appeals of Kansas.

May 3, 1984.

Review Granted June 20, 1984.

Syllabus by the Court

1. A defendant who has been arrested and charged with driving while under the influence of alcohol must be permitted a reasonable opportunity to contact counsel before making a decision as to whether to submit to a blood alcohol test.

2. It is not necessary for defendant's attorney to be present at the time a blood alcohol test is administered, and defendant does not, in every instance, have an unqualified right to consult with counsel before making a decision as to whether to submit to such test. Where, however, as here, the defendant was not allowed any opportunity whatsoever to attempt to contact counsel before making such decision, it is held: The trial court was correct in sustaining a motion to suppress the results of such test.

Janet M. Velazquez, Asst. County Atty.; Daniel L. Love, County Atty.; and Robert T. Stephan, Atty. Gen., for appellant.

Glenn I. Kerbs, of Patton & Kerbs, Dodge City, for appellee.

Before REES, P.J., MEYER, J., and RICHARD W. WAHL, District Judge Assigned.

MEYER, Judge:

This is an appeal by the State from the trial court's order suppressing the results of a blood alcohol test (BAT) which was administered to defendant-appellee Randy Bristor (defendant) shortly after his arrest for driving under the influence of alcohol.

At approximately 11:00 p.m. on the evening of July 30, 1982, defendant was driving in Dodge City, Kansas. He was observed by Trooper Jim Brooks of the Kansas Highway Patrol. Brooks stopped defendant in the parking lot of a local drinking establishment. Defendant was asked to exit his vehicle and to perform certain field sobriety tests.

Based on his observations of defendant, Brooks placed him under arrest for DUI, and informed him of his Miranda rights. Brooks then transported defendant to the Law Enforcement Center (LEC) in Dodge City.

At the LEC, defendant was placed in a squad room where he was observed for approximately 20 minutes by Brooks and Officer Tom Bos of the Dodge City Police Department. During this period of observation, Brooks requested defendant's consent to the administration of a BAT, pursuant to K.S.A. 8-1001. Defendant requested to speak to a lawyer before expressing either consent or refusal. Brooks informed defendant that the decision was his and his alone, and that an attorney had nothing to do with it.

Defendant consented to the administration of a BAT. The test was administered by Officer Bos. Defendant was not allowed to contact an attorney prior to his eventual decision to consent to the BAT; he was, however, allowed to call an attorney immediately after the completion of the test.

Defendant filed a pretrial motion to suppress the results of the BAT. Hearings were had on this motion, and the court received testimony from defendant and Trooper Brooks. The District Court of Ford County, Kansas, filed a journal entry which ordered the results of defendant's BAT suppressed, on the ground that his consent to that test was obtained in violation of his constitutional right to counsel. The State has perfected this appeal from the trial court's order of suppression.

The single issue before this court is whether defendant was denied a constitutionally protected right to consult with an attorney prior to deciding whether to consent to the administration of a BAT.

The courts of many states have addressed the issue of whether a person accused of DUI has a right to consult with counsel prior to exercising or waiving his right to refuse the administration of a BAT. A number of them, including Arizona, Georgia, Kentucky, Oklahoma, Oregon, New Hampshire and Rhode Island, have concluded that no such right to counsel exists. Others, including Minnesota, Missouri, North Carolina, New York, Ohio and Washington, have upheld the right to counsel. While not all of the cases we have found are directly in point with the case at bar, we find all to be analogous and deem their reasoning persuasive. We shall return in the course of our discussion to examination of some of these out-of-state precedents; but first, we shall examine the issue in light of existing Kansas law.

In State v. Irving, 231 Kan. 258, 262, 644 P.2d 389 (1982), the court said:

"The rule is now well established that the right to counsel under the Sixth Amendment does not attach prior to the initiation of adversary judicial proceedings against an accused. Kirby v. Illinois, 406 U.S. 682, 688, 32 L.Ed.2d 411, 92 S.Ct. 1877, 1881, (1972). Where a case is still in the investigative stage, or in the absence of a person being charged, arrested, or indicted, such adversary proceedings have not yet commenced, and thus no right to counsel has attached." (Emphasis added.)

In State v. Estes, 216 Kan. 382, 385-6, 532 P.2d 1283 (1975), the court said:

"A suspect in a criminal case has no right to have counsel at either a photographic or a physical lineup conducted prior to the filing of formal criminal charges against him. These are not to be considered critical stages of the proceeding which give rise to a right to counsel. (State v. Anderson, 211 Kan. 148, 505 P.2d 691; and State v. McCollum, 211 Kan. 631, 507 P.2d 196.) The Sixth Amendment guarantees attach only after the initiation of judicial criminal proceedings against an individual. (Kirby v. Illinois, 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877.) At the time of the physical lineup the appellant by his own testimony admits he was not under arrest on charges upon which this appeal was taken." (Emphasis added.)

Cf. State v. Zimmer, 198 Kan. 479, 482, 426 P.2d 267 (1967).

While not involving the BAT test, and thus not being specifically in point, we conclude that the requirement of a complaint and/or arrest requirement in each of the above cases makes them sufficient authority for us to affirm the trial court herein. It must be emphasized that in the instant case the defendant had been arrested, had been advised of his Miranda rights, and had been ticketed by the arresting officer. We conclude that it is very clear herein that the State had proceeded to the point where defendant was indeed entitled to consult with an attorney.

While, as we have said, we conclude the foregoing Kansas cases are sufficient authority for us to affirm the action of the trial court herein, we hereinafter set forth federal cases and those from states other than Kansas to show the reasoning adopted by those courts.

In the landmark case of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court established the principle that the due process clause of the Fourteenth Amendment required that a person accused of crime be afforded "the guiding hand of counsel at every step in the proceedings against him." 287 U.S. at 69, 53 S.Ct. at 64.

In succeeding cases, the court has made it clear that the right to counsel is not limited to the presence of counsel at trial.

"It is central to that principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial....

"In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." United States v. Wade, 388 U.S. 218, 226-7, 87 S.Ct. 1926, 1931-2, 18 L.Ed.2d 1149 (1967).

It has come to be recognized that an accused is entitled to the presence of counsel at every "critical stage" of the prosecution. The Supreme Court presented a conceptual definition of what constitutes a "critical stage" in Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970). See also, United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

Finally, the opinion in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), provides us with the following concise, yet also comprehensive, summary of the scope and breadth of the constitutional right to counsel:

"In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158] it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458 [58 S.Ct. 1019, 82 L.Ed. 1461]; Hamilton v. Alabama, 368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114]; Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799]; White v. Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193]; Massiah v. United States, 377 U.S. 201 [84 S.Ct. 1199, 12 L.Ed.2d 246]; United States v. Wade, 388 U.S. 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149]; Gilbert v. California, 388 U.S. 263 [87 S.Ct. 1951, 18 L.Ed.2d 1178]; Coleman v. Alabama, 399 U.S. 1 [90 S.Ct. 1999, 26 L.Ed.2d 387].

"[W]hile members of the Court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment,...