State v. Hoch

• Decision Date: 16 December 1986
• Docket Number: No. 85-1905,85-1905
• Citation: 500 So.2d 597,11 Fla. L. Weekly 2661
• Parties: 11 Fla. L. Weekly 2661 The STATE of Florida, Appellant, v. Charles HOCH, Appellee.
• Court: Florida District Court of Appeals

Page 597

500 So.2d 597

11 Fla. L. Weekly 2661

The STATE of Florida, Appellant, v. Charles HOCH, Appellee.

No. 85-1905.

District Court of Appeal of Florida Third District.

Dec. 16, 1986.

Rehearing Denied Jan. 15, 1987.

Jim Smith, Atty. Gen., Tallahassee, and Randi Klayman Lazarus, Miami, and Richard Doran, Tallahassee, for appellant.

Nathan E. Eden, Key West, Bennie Lazzara, Jr., Henry Lee Paul, Tampa, for appellee.

Before SCHWARTZ, C.J., and HUBBART, and JORGENSON, JJ.

JORGENSON, Judge.

The appellee, Charles Hoch, was arrested for driving while under the influence of alcoholic beverages (DUI), in violation of section 316.193(1), Florida Statutes (1983). ¹ After performing various field sobriety tests, he was transported to a "DUI intake" station where he was filmed performing various physical tests. At the conclusion of the tests, he was read his Miranda rights, at which point Hoch said, "I'd like a lawyer." This request was denied, and Hoch took the breath test. He moved to suppress the breath test results, contending that the test was taken in violation of section 901.24, Florida Statutes (1983), the due process clause of the fifth and fourteenth amendments, and the right to counsel provision of the sixth amendment. The trial court granted Hoch's motion on the first two grounds and, under Florida's procedure for certifying questions of great public importance from the county court, ² certified the following questions to this court:

I. WHETHER A 6TH AMENDMENT RIGHT TO COUNSEL UNDER THE UNITED STATES CONSTITUTION ATTACHES SO AS TO REQUIRE ACCESS TO AN ATTORNEY PRIOR TO BEING REQUIRED TO SUBMIT TO THE IMPLIED CONSENT BLOOD/ALCOHOL TEST?

II. WHETHER THE 5TH AMENDMENT PROCEDURAL DUE PROCESS REQUIREMENTS OF THE UNITED STATES CONSTITUTION AND/OR FLORIDA STATUTE 901.24 REQUIRE THE POLICE TO PERMIT A BRIEF RECESS PRIOR TO THE BREATH TEST TO AUTHORIZE AN ACCUSED AN OPPORTUNITY TO CONSULT AN ATTORNEY PRIOR TO SUBMITTAL TO THE BREATH TEST IF THE ACCUSED REQUESTS AN OPPORTUNITY TO CONSULT WITH COUNSEL?

We agree that both questions are of great public importance, answer both questions in the negative, and reverse.

I. Sixth Amendment Right to Counsel

In all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence.

--U.S. Const. amend. VI.

The sixth amendment right to counsel attaches at critical stages of the criminal proceedings and operates to ensure the accused's right to a fair trial. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), the Supreme Court elaborated on the phrase "critical stage" by holding that the sixth amendment attaches only at or after the time the adversary judicial proceedings have been initiated. Id. at 688, 92 S.Ct. at 1881-82, 32 L.Ed.2d at 417. The commencement of criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, marks the start of adversary judicial proceedings. See id. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 417. The purpose of the sixth amendment is not to protect a suspect from his own candor, but rather is to insure that he is not left to his own devices when facing the "prosecutorial forces" of the state. Moran v. Burbine, 475 U.S. 412, ----, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410, 427 (1986) (quoting Maine v. Moulton, 474 U.S. 159, ----, 106 S.Ct. 477, 484, 88 L.Ed.2d 481, 492 (1985), and Kirby, 406 U.S. at 689, 92 S.Ct. at 1882, 32 L.Ed.2d at 418). Thus, "the Sixth Amendment right to counsel does not attach until after the initiation of formal charges." Moran, 475 U.S. at ----, 106 S.Ct. at 1146, 89 L.Ed.2d at 427 (citing United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146, 153 (1984)).

Even before Moran, other states had concluded that there is no sixth amendment right to counsel before a breath test. ³ See, e.g., State v. Jones, 457 A.2d 1116 (Me.1983); Dunn v. Petit, 120 R.I. 486, 388 A.2d 809 (1978). While other states had managed to find that a sixth amendment right to counsel exists when a person is faced with taking a breathalyzer test, see, e.g., People v. Gursey, 22 N.Y.2d 224, 239 N.E.2d 351, 292 N.Y.S.2d 416 (1968); Sites v. State, 300 Md. 702, 481 A.2d 192 (1984), those cases are of doubtful validity in light of the Supreme Court's recent decision in Moran where the Court unequivocally states that the sixth amendment right to counsel does not attach until after formal charges are initiated. Moran, 475 U.S. at ----, 106 S.Ct. at 1146, 89 L.Ed.2d at 427; see Forte v. State, 707 S.W.2d 89, 92 (Tex.Crim.App.1986) (in Moran, the Supreme Court has "crystalized its position as to when the Sixth Amendment right to counsel attaches"). The fourth district in Sobczak v. State, 462 So.2d 1172 (Fla. 4th DCA 1984), rev. denied, 469 So.2d 750 (Fla.1985), had held that a lineup constituted adversary judicial proceedings. In light of Moran, and because the fourth district decided this issue on a constitutional basis, Sobczak is no longer good law. See Traylor v. State, 498 So.2d 1297 (Fla. 1st DCA 1986) (under Gouveia and Florida Rule of Criminal Procedure 3.140(a), adversary criminal proceedings arise, and the sixth amendment right to counsel attaches, after indictment or information).

In the instant case, the defendant was given the option of taking the breathalyzer test following his arrest but before the initiation of criminal proceedings against him. The test, therefore, was not a critical stage in the prosecution, and the defendant had no sixth amendment right to counsel. The first certified question is, accordingly, answered in the negative.

II. Fifth Amendment

No person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law....

--U.S. Const. amend. V.

A. Right to Attorney Implicit in Privilege Against Self-Incrimination

There is also a right to counsel which is implicit in the fifth amendment right against self-incrimination. The rationale for this right is that for the privilege against self-incrimination to be meaningful an attorney must be present to safeguard that privilege. However, for the fifth amendment right to counsel to apply, the person must be making a communication that could incriminate him. The fifth amendment cannot apply to evidence which is nontestimonial or noncommunicative in nature. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); C. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The results of a breathalyzer test, like speaking or writing for identification, photographs, fingerprints, or the physical appearance and gestures of a defendant, are physical evidence and are not testimonial. Schmerber, 384 U.S. at 764, 86 S.Ct. at 1832, 16 L.Ed.2d at 916; see Neville, 459 U.S. at 559, 103 S.Ct. at 920, 74 L.Ed.2d at 756; Gilbert, 388 U.S. at 266-67, 87 S.Ct. at 1953, 18 L.Ed.2d at 1182-83. As a person's breath is not protected by the fifth amendment right against self-incrimination, a person has no fifth amendment right to consult with an attorney prior to deciding whether to submit to a breathalyzer. See Colgan v. State Department of Revenue, Motor Vehicle Division, 623 P.2d 871 (Colo.1981); Growe v. State, 675 S.W.2d 564 (Tex.Crim.App.1984). As the Texas Court of Criminal Appeals has pointed out,

[a] rule that focuses on preventing collection of a breath sample, merely because a defendant has been informed of his right to have counsel present if he is interrogated, would severely restrict police officers in the pursuit of lawfully collecting evidence of intoxication and, more significantly, do nothing to further protect the privilege against self-incrimination.

McCambridge v. State, 712 S.W.2d 499, 506 (Tex.Crim.App.1986).

Just as a defendant is not entitled to an attorney's advice when refusing to submit to fingerprinting, photographing, or measuring, or speaking, walking, or gesturing for identification, a defendant is not entitled to an attorney's advice when refusing a breath test. Id. at 503. A breathalyzer test is physical evidence as are the other tests. Schmerber.

B. Due Process Considerations

In addition to the fifth amendment due process clause, the fourteenth amendment also contains a due process clause and provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV. Most of the protections provided in the Bill of Rights (those considered fundamental to the American system of law) have been applied to the states through the fourteenth amendment due process clause. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); J. Nowak, R. Rotunda, & J. Young, Constitutional Law 412-14 (2d ed. 1983). We agree with those states which have found that due process does not require that a driver be allowed to consult with an attorney before a breathalyzer test.

In State v. Newton, 291 Or. 788, 636 P.2d 393 (1981) (in banc), the defendant was denied the right to consult with an attorney before taking a breathalyzer test. The court noted that it had often applied the exclusionary rule in the context of denial of rights protected by the Bill of Rights, but that the case offered the first opportunity to consider exclusion for a deprivation of liberty protected by the due process clause. The Supreme Court of Oregon declined to exclude the results of the breathalyzer test because there was no causal relationship between the request to call the attorney and the procurance of the breath sample. The court stated that there was no indication that Newton had an attorney, that an attorney was available, that if Newton had been given an opportunity to talk to an attorney the results would have been fruitful, or...