State v. Frasier

• Decision Date: 29 January 1996
• Citation: 914 S.W.2d 467
• Parties: STATE of Tennessee, Appellee, v. Billy D. FRASIER, Appellant.
• Court: Tennessee Supreme Court

Page 467

914 S.W.2d 467

STATE of Tennessee, Appellee, v. Billy D. FRASIER, Appellant.

Supreme Court of Tennessee at Nashville.

Jan. 29, 1996.

Putnam Criminal, No. 01501-9503-CC-00036; John A. Turnbull, Judge.

Charles W. Burson, Attorney General & Reporter, Kathy Morante, Deputy Attorney General, Nashville, William Edward Gibson, District Attorney General, Thirteenth Judicial District, Owen G. Burnett, Assistant District Attorney, Cookeville, for Appellee.

Donald G. Dickerson, Cookeville, for Appellant.

OPINION

DROWOTA, Justice.

This case presents the following issues for our determination: (1) whether a person who has been stopped by the police for driving under the influence (DUI) has a right, under either the state or federal constitutions, to consult with an attorney prior to making a decision as to whether to submit to or refuse a blood or breath test; and (2) whether such a person's state or federal constitutional right against self-incrimination prohibits a refusal to submit to such a test from being admitted as evidence at trial, when the person was not informed that the evidence could be used against him or her. We answer both questions in the negative, and therefore affirm the judgment of the Court of Criminal Appeals, which declined to suppress the evidence of the refusal.

FACTS AND PROCEDURAL HISTORY

On May 25, 1992, Officer Reno Martin of the Cookeville Police Department stopped Billy D. Frasier, the defendant, after he drove his vehicle through a red light. Frasier smelled of alcohol; and Officer Martin arrested him for DUI after Frasier failed a field sobriety test. After the arrest--which was not preceded by a recitation of any Miranda rights--Officer Martin requested that Frasier submit to a breath test. Frasier asked to speak to an attorney before making this decision, and he also offered to take a blood test in lieu of the breath test. Officer Martin denied both these requests. Frasier ultimately refused to submit to the test; and he signed an implied consent form which explained that a refusal to submit to the test could result in the suspension of his driver's license. However, the implied consent form did not reveal that his refusal to submit to the test could be introduced as evidence against him at trial; and Officer Martin did not orally advise him of this.

After the grand jury indicted Frasier, he moved to suppress the evidence of his refusal to submit to the breath test. Following an evidentiary hearing, the trial court found that: (1) the defendant was never "Mirandized"; (2) the defendant requested and was not permitted to call his attorney before he refused to take the breath test; (3) the implied consent form did not advise defendant that his refusal to take the test could be used as evidence against him; and (4) defendant was not advised orally that his refusal to take the test could be used against him. Based on these findings, the trial court suppressed the evidence of Frasier's refusal to take the test. The State then appealed from this ruling to the Court of Criminal Appeals pursuant to Rule 9, Tenn.R.App.P.

The Court of Criminal Appeals, while agreeing with the trial court's findings of fact, held that the evidence of defendant's refusal to submit to the test was not due to be suppressed under several of the decisions of that court. Because this Court has not yet addressed these issues, we granted Frasier's Rule 11 application for that purpose.

RIGHT TO COUNSEL CLAIM

The first issue that we address is whether Frasier had a constitutional right to speak with an attorney prior to making the decision as to whether to submit to or refuse the breath test. First, we note that Frasier has no such right under the Sixth Amendment ¹ to the federal constitution or its state counterpart, Tenn. Const. Art. I, § 9. ² In State v. Mitchell, 593 S.W.2d 280 (Tenn.1980), a case dealing with a defendant's constitutional right to counsel at a post-arrest lineup, we surveyed the applicable federal and state precedent and concluded that:

We hold that right to counsel attaches when adversary judicial proceedings are initiated. Initiation is marked by formal charge, which we construe to be an arrest warrant, or at the time of the preliminary hearing in those rare cases where a preliminary hearing is not preceded by an arrest warrant, or by indictment or presentment when the charge is initiated by the grand jury.

Mitchell, 593 S.W.2d at 286.

In accordance with the United States Supreme Court's decision in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), we stated that an arrest warrant signalled the initiation of formal proceedings because the warrant "brings to an end the investigative stage and inaugurates the beginning and adversarial stage" of a criminal case. Id. It was only then, we reasoned, that the State clearly commits itself to prosecution and "a defendant finds himself faced with prosecutorial forces of organized society." Id. at 287, quoting Kirby, 406 U.S. at 689-90, 92 S.Ct. at 1882.

Even though we concluded that an arrest warrant was necessary for the constitutional right of counsel to attach, we also noted that a criminal defendant is not without a degree of constitutional protection even before that stage. We specifically addressed the situation of a defendant subjected to a lineup after a warrantless arrest:

When an arrest is made without a warrant and a lineup is conducted there is no constitutional right to counsel; however, even then the accused is constitutionally protected against unnecessarily suggestive procedures. We noted in Forbes v. State, [559 S.W.2d 318 (Tenn.1977) ], that 'since the identification occurred during the investigative phase and prior to arrest, we are not dealing with the Sixth Amendment right to counsel.' However, we considered the Due Process aspect and determined that the identification procedure was not impermissibly suggestive.

Mitchell, 593 S.W.2d at 286, n. 4 (citations omitted).

Turning to the case at hand, it is undisputed that Frasier was arrested without a warrant; therefore, the constitutional right to counsel as defined in Mitchell never attached. Frasier acknowledges this, but argues that since the decision of whether to submit to or refuse the test is a "critical stage" of the proceedings, the Due Process clause of the Tennessee Constitution, Art. I, § 8, ³ requires that he be afforded a right to counsel.

In assessing the merits of this argument, we first note that some jurisdictions have held that the notion of fundamental fairness, as embodied in the Due Process Clause, requires that a DUI defendant be permitted to consult with an attorney before making this decision. Sites v. State, 300 Md. 702, 481 A.2d 192 (1984); State v. Newton, 291 Or. 788, 636 P.2d 393 (1981); Scarborough v. State, 261 So.2d 475 (Miss.1972). The rationale for the rule was aptly set forth by the court in Sites, supra:

The due process clause ... has long been recognized as a source of a right to counsel independent of the Sixth Amendment [and analogous state constitutional provisions] where critically important to the fairness of the proceedings ... The concept of a due process right [has been described] as a guarantee of respect for those personal immunities which are so rooted in the traditions and conscience of our people as to be ranked as fundamental or implicit in the concept of ordered liberty. While the exact contours of the due process right are not definable with precision, the right ... is one that assures that convictions cannot be brought about in criminal cases by methods which offend a sense of justice.

Sites, 481 A.2d at 199 (citations omitted).

After explaining the essence of the due process notion, the Sites court stated that "we think to unreasonably deny a requested right of access to counsel to a drunk driving suspect offends a sense of justice which impairs the fundamental fairness of the proceeding," id. at 200; and it concluded that the state and federal Due Process Clauses required that the defendant be afforded a right to counsel. Having come to this conclusion, however, the Sites court was quick to qualify it:

[The Due Process clauses require that the defendant be afforded a right to communicate with counsel], as long as such attempted communication will not substantially interfere with the timely and efficacious administration of the testing process. In this regard, it is not possible to establish a bright line rule as to what constitutes a reasonable delay, although the statute itself mandates that in no event may the test be administered later than two hours after the driver's apprehension. Of course, it is the statutory purpose to obtain the best evidence of blood alcohol content as may be practicable in the circumstances, and it is common knowledge that such content dissipates rapidly with the passage of time. Thus, if counsel cannot be contacted within a reasonable time, the arrestee may be required to make a decision regarding testing without the advice of counsel. We emphasize that in no event can the right to communicate with counsel be permitted to delay the test for an unreasonable time since, to be sure, that would impair the accuracy of the test and defeat the purpose of the statute.

Id.

We are not insensitive to the due process concerns in this context. It does strike one as unfair that a person suspected of DUI, particularly one who has had no prior experience with the law, should be compelled to make a decision having such important consequences for his or her guilt or innocence without the benefit of counsel. Having stated this, however, we nevertheless believe that the Sites court's above-quoted qualification of the due process argument carries with it the seeds of that argument's destruction. It is common knowledge that a person's blood alcohol content rapidly dissipates over time; therefore, delaying the test while waiting on counsel to arrive would potentially...