State v. Harmon

• Citation: 131 Idaho 80,952 P.2d 402
• Decision Date: 30 January 1998
• Docket Number: No. 23361,23361
• Parties: STATE of Idaho, Plaintiff-Respondent, v. John W. HARMON, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 402

952 P.2d 402

131 Idaho 80

STATE of Idaho, Plaintiff-Respondent, v. John W. HARMON, Defendant-Appellant.

No. 23361.

Court of Appeals of Idaho.

Jan. 30, 1998.

R. Brad Masingill, Weiser, for Defendant-Appellant.

Alan G. Lance, Attorney General, Catherine O. Derden, Deputy Attorney General, Boise, for Plaintiff-Respondent.

LANSING, Chief Judge.

Appellant John W. Harmon was detained on suspicion of driving under the influence of alcohol and was asked to submit to a blood alcohol concentration (BAC) test. He initially refused, but the police officer continued to urge Harmon to take the test, and he then relented. Before the trial court, Harmon unsuccessfully sought suppression of the BAC test results and dismissal of the charge. On appeal, he contends that the officer's conduct in persuading Harmon to submit to the test violated Harmon's Fifth Amendment privilege of self-incrimination, the Fourth Amendment guaranty against unreasonable searches and seizures, and his Sixth Amendment right to counsel, and that the police wrongfully disposed of exculpatory evidence. Harmon also maintains that the trial court's findings and conclusions on the suppression motion are inadequate.

FACTS AND PROCEDURE

While on patrol, Payette City police officer Dan Ziegler observed John Harmon speeding and pulled him over. When officer Ziegler approached Harmon to request his driver's license and registration, he noticed that Harmon appeared to be intoxicated. Harmon also smelled of alcohol and admitted that he had been drinking. After Harmon failed several field sobriety tests, officer Ziegler took him to the sheriff's office and asked him to take a breathalyzer test to determine the alcohol concentration in his blood. Either in the patrol car or at the sheriff's office, Harmon asked if he could speak to an attorney. Officer Ziegler responded that he would have to wait until he completed the BAC. The officer then read Harmon an advisory form based on I.C. § 18-8002 describing the consequences of a refusal to take the test, including the likely suspension of Harmon's driver's license. Harmon declined the test and signed the advisory form on a line indicating his refusal. Officer Ziegler persisted, however, telling Harmon that it would probably be in Harmon's best interest to take the test because if he did not, his license would be suspended. Harmon then agreed to the test, and the officer discarded the original form which documented Harmon's refusal. Harmon signed a new form indicating compliance. The test samples showed a blood alcohol concentration of .22 and .23, and Harmon was charged with driving under the influence of alcohol (DUI), I.C. § 18-8004.

Prior to trial, Harmon filed a motion to suppress the results of the BAC test. He argued that by encouraging Harmon to submit to the test after he had refused, officer Ziegler unconstitutionally tricked Harmon into withdrawing his initial refusal, that Harmon's Sixth Amendment right to counsel and his Fifth Amendment privilege against self-incrimination were violated. Harmon also moved for dismissal of the DUI charge on the ground that officer Ziegler violated Harmon's due process rights by throwing away the original refusal form. The magistrate denied the motion. Harmon was granted a stay of the proceedings in order to appeal the matter to the district court. The district court affirmed the magistrate's decision.

On further appeal to this Court, Harmon reasserts his arguments for suppression of the breath test and also argues that the magistrate committed reversible error by delegating the drafting of his findings of fact and conclusions of law to the prosecutor.

ANALYSIS

A. The Magistrate's Adoption of the Findings and Conclusions Prepared by the Prosecutor

At the conclusion of the evidentiary hearing on Harmon's suppression motion, the magistrate ruled from the bench. Regarding the officer's statements to Harmon after Harmon's initial refusal of the breathalyzer, the magistrate said only, "I can't find where the officer was wrong in the words that he used at that time after the refusal of the test. I can't find that he violated the defendant's rights." Harmon's attorney then requested that the court issue written findings of fact. It appears that the magistrate thereafter directed the prosecutor to draft findings of fact and conclusions of law and that the magistrate signed, without modification, the draft prepared by the prosecutor. Harmon argues that this procedure violated I.C.R. 12(e), which requires a trial court to make Harmon is correct in asserting that the magistrate's pronouncement from the bench was wholly inadequate as findings of fact. He also correctly points out that the practice of having one party prepare findings and conclusions, which are then adopted verbatim by the trial court, is strongly disfavored. See Matheson v. Harris, 98 Idaho 758, 762, 572 P.2d 861, 865 (1977); Compton v. Gilmore, 98 Idaho 190, 193, 560 P.2d 861, 864 (1977); MH & H Implement, Inc., v. Massey-Ferguson, Inc., 108 Idaho 879, 881, 702 P.2d 917, 919 (Ct.App.1985); Pline v. Asgrow Seed Co., 102 Idaho 827, 832, 642 P.2d 64, 69 (Ct.App.1982). Idaho Criminal Rule 12(e) provides, "When the [sic] factual issues are involved in the determination of a motion, the court, upon the request of any party, shall make its findings thereon." In Compton, the Idaho Supreme Court explained that the purpose of the corresponding civil rule, I.R.C.P. 52(a), is to provide "an aid to the appellate court by placing before it the basis of the decision of the trial court; to require care on the part of the trial judge in his consideration and adjudication of the facts; and for the purposes of res judicata and estoppel by judgment." Compton, 98 Idaho at 193, 560 P.2d at 864 (quoting Mora v. Martinez, 80 N.M. 88, 451 P.2d 992, 993-94 (1969)). A court's delegation to one party of the task of preparing findings and conclusions, or a court's wholesale adoption of one party's draft risks undermining the litigants' confidence in the outcome of their case and in the integrity of the judicial process in general. Hence, we do not endorse the magistrate's practice here.

findings of fact upon the request of either party.

This failing in the procedures below does not, however, constitute reversible error per se. MH & H Implement, 108 Idaho at 881, 702 P.2d at 919. Rather, "findings of fact supported by the evidence and conclusions of law correctly applying legal principles to the facts found will be sustained on appeal regardless of their source." Id. at 881-82, 702 P.2d at 919-20. See also Cheney v. Jemmett, 107 Idaho 829, 831-32, 693 P.2d 1031, 1033-34 (1984); Marshall Bros., Inc., v. Geisler, 99 Idaho 734, 737, 588 P.2d 933, 936 (1978); Seaport Citizens Bank v. Dippel, 112 Idaho 736, 741, 735 P.2d 1047, 1052 (Ct.App.1987).

We conclude that the record here provides ample support for the magistrate's findings. Therefore, we will proceed to address the issues raised by Harmon, applying governing law to the facts as found by the magistrate. Because Harmon raises constitutional issues, we accept the trial court's findings of fact where supported by substantial evidence, but we freely review the trial court's determination as to whether constitutional standards have been satisfied in light of the facts found. State v. Carr, 123 Idaho 127, 129, 844 P.2d 1377, 1379 (Ct.App.1992); State v. Shepherd, 118 Idaho 121, 122, 795 P.2d 15, 16 (Ct.App.1990).

B. The Fifth Amendment Privilege Against Self-incrimination

Harmon asserts that because he was not given Miranda warnings before he consented to the breathalyzer test, the administration of the test violated his Fifth Amendment privilege against self-incrimination. The necessary remedy, he asserts, is suppression of the test results. We conclude, however, that the privilege against self-incrimination and Miranda rights are not implicated by the administration of a breath test.

The Miranda requirement that an accused be informed of the right to remain silent and the right to counsel before custodial interrogation was imposed by the United States Supreme Court in order to safeguard the accused's Fifth Amendment privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This privilege protects the accused only from compulsion to give testimony against himself or to otherwise provide "evidence of a testimonial or communicative nature." Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966). In Schmerber, the United States Supreme Court held that a state-compelled blood test to determine alcohol concentration is physical evidence, not testimony or a communicative act, and therefore is unprotected Accordingly, Harmon's breath test results are admissible, notwithstanding the lack of Miranda warnings, because they are not testimonial or communicative evidence and because the officer's request for the test was not an interrogation.

                by the Fifth Amendment privilege.  Id., at 760-65, 86 S.Ct. at 1830-33.   Moreover, in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Supreme Court stated, "In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda."  Id. at 564 n. 15, 103 S.Ct. at 923 n. 15
                

C. The Fourth Amendment Right to be Free From Unreasonable Searches and Seizures

Harmon next argues that the BAC test should be suppressed as the product of an unconstitutional search and seizure. He asserts that Officer Ziegler violated the Fourth Amendment proscription against unreasonable searches and seizures when he told Harmon that it would be in Harmon's best interest to take the BAC test. According to Harmon, this amounted to "legal advice" from the officer on which Harmon relied in submitting to the test.

The Fourth Amendment to the United...