State v. Holland, 6637-PR

Citation147 Ariz. 453,711 P.2d 592
Decision Date09 December 1985
Docket NumberNo. 6637-PR,6637-PR
PartiesSTATE of Arizona, Appellant, v. Robert Lee HOLLAND, Appellee.
CourtSupreme Court of Arizona
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Asst. Atty. Gen., Thomas E. Collins, Maricopa Co. Atty. by H. Allen Gerhardt, Deputy Maricopa Co. Atty., Phoenix, for appellant

Roger Blake, Phoenix, for appellee.

CAMERON, Justice.

This is a review of an opinion and decision of the court of appeals affirming the dismissal with prejudice of one count of driving while under the influence of intoxicating liquor or drugs while license is suspended, revoked or refused, A.R.S. § 28-692(A); and one count of driving with a blood alcohol level of .10 or more while license is suspended, revoked or refused, A.R.S. § 28-692(B); both class 5 felonies, A.R.S. § 28-692.02. State v. Holland 147 Ariz. 463, 711 P.2d 602 (1985). We granted the petition for review because of confusion in the law as evidenced by the decision The issues presented for review are:

of the three judge court of appeals in which there was a majority opinion, a concurring opinion and a dissenting opinion. We have jurisdiction pursuant to art. 6, § 5(3) of the Arizona Constitution, A.R.S. § 12-120.24 and Rule 31.19, Ariz.R.Crim.P., 17 A.R.S.

1. Does a person arrested of the crime of driving while under the influence of intoxicating liquor have a right to privacy when consulting with counsel prior to deciding whether to take a breathalyzer test?

2. If so, did the trial court correctly dismiss the charges with prejudice for denial of defendant's right to a private consultation with counsel?

The facts follow. On 27 September 1983, the defendant, Robert Lee Holland, was arrested for driving while intoxicated. The police transported defendant to the police station and read him his Miranda rights. During questioning, defendant was allowed to call his attorney and leave a message on his attorney's answering service.

About fifteen minutes later, defendant's attorney returned his call and asked to have a confidential phone conversation with defendant. Defendant was allowed to talk with counsel on the telephone, but Officer O'Neal refused to leave the room. Instead, he stood near enough to defendant to hear his part of the telephone conversation. On account of the officer's ability to hear defendant's answers, counsel felt unable to ask several questions concerning defendant's condition and conduct prior to arrest. Without these questions and answers, counsel was unable to advise defendant how to proceed. Defendant then submitted to a breath test.

Later, defendant moved for dismissal of the charges against him claiming that he was deprived his right to consult in private with his attorney. The trial court granted the dismissal, with prejudice, and the court of appeals affirmed. State v. Holland, supra. This petition for review followed.

PRIVATE CONSULTATION

Defendant claims that he was denied his right to consult privately with counsel because of the police officer's refusal to move out of earshot of his telephone conversation. This refusal, defendant's counsel stated in his affidavit, forced him to avoid asking defendant several questions, such as:

1. How much have you had to drink?

2. What type of alcohol?

3. How big were the drinks?

4. How much alcohol was in them?

5. When was your last drink?

6. Over what period of time were the drinks?

7. When did you last eat?

8. What did you eat?

9. Do you believe you are under the influence of alcohol now?

10. Do you believe you were under the influence of alcohol while you were driving?

11. Do you believe the alcohol affected your ability to drive?

Without this information, defendant's counsel stated that he was unable to advise defendant. Defendant contends that the officer's refusal to allow defendant to consult in private was a violation of defendant's right to counsel.

Both Arizona caselaw and the Rules of Criminal Procedure state that the right to counsel includes the right to consult in private with an attorney. McNutt v. Superior Court, 133 Ariz. 7, 9, 648 P.2d 122, 124 (1982); Rule 6.1(a), Ariz.R.Crim.P., 17 A.R.S.. Further, it is universally accepted that effective representation is not possible without the right of a defendant to confer in private with his counsel. State v. Cory, 62 Wash.2d 371, 382 P.2d 1019, 1020 (1963); Annot., 23 A.L.R. 1382, 1382 (1923); Annot., 54 A.L.R. 1225, 1225 (1928).

The state may not then, without justification, prevent access between a defendant and his lawyer, if available, in person or by telephone, when such access would not unduly delay the DWI investigation and arrest. McNutt v. Superior Relying on Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971), the state argues that defendant had no right to consult his attorney concerning whether to submit to a breathalyzer test. Therefore, any lack of privacy, in the instant case, is irrelevant.

                Court, 133 Ariz. at 9-10, 648 P.2d at 124-125.   In the instant case, it did not unduly delay the investigation to allow defendant to call his attorney.  Once defendant began talking to counsel, he had a right to confidentiality so long as it did not impair the investigation or the accuracy of a subsequent breath test
                

We believe the state misreads Campbell, supra. Admittedly, under Campbell a person is not entitled to consult with counsel prior to deciding whether or not to take a breathalyzer. Id. As we noted in McNutt, supra, 133 Ariz. at 10 n. 2, 648 P.2d 122, "a defendant has no right to delay by demanding to consult with counsel before being required to choose a blood alcohol test or possible driver's license suspension as provided for in A.R.S. § 28-691." However, that is not the factual situation before us. Defendant is not arguing he was improperly denied the...

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  • State v. Moody
    • United States
    • Supreme Court of Arizona
    • August 9, 2004
    ...... See, e.g., Kunzler, 154 Ariz. at 568-70, 744 P.2d at 669-71 ; State v. Holland, 147 Ariz. 453, 711 P.2d 592 (1985) ; McNutt, 133 Ariz. at 7, 648 P.2d at 122 ; State v. Rosengren, 199 Ariz. 112, 14 P.3d 303 (App.2000) . ......
  • State v. Moody, Arizona Supreme Court No. CR-02-0044-AP (AZ 8/8/2004), Arizona Supreme Court No. CR-02-0044-AP
    • United States
    • Supreme Court of Arizona
    • August 8, 2004
    ...... See, e.g., Kunzler, 154 Ariz. at 568-70, 744 P.2d at 669-71; State v. Holland, 147 Ariz. 453, 711 P.2d 592 (1985); McNutt, 133 Ariz. at 7, 648 P.2d at 122; State v. Rosengren, 199 Ariz. 112, 14 P.3d 303 (App. 2000). Only ......
  • City of Spokane v. Kruger, 56288-1
    • United States
    • United States State Supreme Court of Washington
    • January 10, 1991
    ...... 4 The Court of Appeals [803 P.2d 307] accepted discretionary review, but, relying on State v. Fitzsimmons, 93 Wash.2d 436, 610 P.2d 893, 18 A.L.R.4th 690, vacated and remanded, 449 U.S. 977, ... But see State v. Holland, 147 Ariz. 453, 711 P.2d 592 (1985) (denial of statutory right to consult privately with attorney ......
  • Haworth v. State, 90-276
    • United States
    • United States State Supreme Court of Wyoming
    • October 22, 1992
    ...... Denial of the right for defendant in custody to confer in private with his counsel required the conviction to be set aside in State v. Holland, 147 Ariz. 453, 711 P.2d 592 (1985); admission of confidential trial site attorney/client discussion by eavesdropping police witness required ......
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