State v. Holland, 1
| Decision Date | 18 June 1985 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 711 P.2d 602,147 Ariz. 463 |
| Parties | The STATE of Arizona, Appellant, v. Robert Lee HOLLAND, Appellee. 8093. |
| Court | Arizona Court of Appeals |
In this case Robert Lee Holland was charged by information with one count of driving when under the influence of intoxicating liquor or drugs while license is suspended, revoked or refused and one count of driving with a blood alcohol level of .10 or more while license is suspended, revoked or refused, both class 5 felonies. Holland filed a motion to suppress the results of a breath test and also filed a motion to dismiss. Following the hearing on the motion to dismiss, the court took the matter under advisement and subsequently dismissed the case with prejudice. The state appeals this dismissal.
The facts show that on September 27, 1983, following his arrest for driving while intoxicated, police transported Holland to the Squaw Peak Police Station and issued Miranda rights to him. The police began to question Holland, and at some point during the conversation, he asked to call his attorney. He made a telephone call to his attorney's answering service, and when the attorney returned the call, the officer answering the phone informed him that Holland was under arrest for DUI. His attorney requested a confidential phone conversation with Holland, and the officer said he could arrange it, but as the attorney/client conversation began, the attorney asked about the privacy of the arrangements, and Holland responded that the officer could hear him speaking. Holland then asked the officer to step out of earshot, but he refused to do so. Because of this, the attorney could not get any information from Holland as to his condition at that time and, therefore, was unable to advise him how to proceed, whether he should give a blood test, submit to the breathalyzer test or refuse to do anything. He was also unable to advise Holland or assist him in gathering any exculpatory evidence. The conversation ended soon after, and he eventually submitted to the breath test.
On appeal, the state argues an accused is not entitled to the advice of counsel before taking the breathalyzer test and is not even entitled to a telephone call before he takes the test. Holland argues the right to be represented under Rule 6.1(a), Rules of Criminal Procedure, 17 A.R.S., includes the right to consult in private with an attorney as soon as feasible after he has been taken into custody. Specifically, Holland argues he should have been able to have a private conversation with his attorney in advance of the proceedings sufficient to allow adequate preparation. Holland argues the ruling in McNutt v. Superior Court, 133 Ariz. 7, 648 P.2d 122 (1982), is controlling under these facts. We agree and affirm.
In McNutt, supra, the defendant was denied a request to call his attorney without justification, and the Arizona Supreme Court in that case stated what rights an accused has upon arrest for DUI:
* * * " 133 Ariz. at 9, 648 P.2d at 124.
In the comments on Rule 6.1(a), enacted following Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971), the purpose of that part of the rule at issue is explained:
Arizona Proposed Rules of Criminal Procedure, State Bar Committee on Criminal Law (7-15-72) p. 16-17.
The state claims this situation is governed by the Implied Consent Law as discussed in Campbell, supra. We disagree. In Campbell, the Arizona Supreme Court held an arrested person has no right to counsel in deciding whether to submit to the breathalyzer test or to have his driver's license suspended for six months.
We recognize the noble intent of the legislature in enacting the Implied Consent Law. We also agree with the court in Campbell, supra, that "[t]he purpose of the Implied Consent Law is to remove from the highways of this state drivers who are a menace to themselves and to others because they operate a motor vehicle while under the influence of intoxicating liquor." 106 Ariz. at 546, 479 P.2d at 689. Finally, we believe it is "reasonable under the circumstances to require a person to submit to a chemical test of his blood, breath or urine if arrested for driving while intoxicated or face a six months suspension of his driver's license." Id.
But this is not our case. Holland does not face mere suspension of his driver's license under § 28-691 (a civil proceeding). 1 Nor does he argue that any refusal to take the test can be used as evidence against him in a criminal proceeding, and is therefore, self-incriminating. Both of the above results could be viewed as part of a driver's implied consent as a condition to using the highways.
Instead, under the present statute, in a criminal proceeding charged with a felony, Holland faces a possible penalty of 2.5 years, as compared with a license revocation in Campbell. As stated by the court in People v. Shaw, 127 Misc.2d 607, 486 N.Y.S.2d 607 (Vill.Ct.1984):
(Emphasis in opinion). 127 Misc.2d 530, 486 N.Y.S.2d at 610.
No matter how noble the legislative intent underlying the Implied Consent Law, this court cannot, in acknowledging that intent, overlook the valuable right existing in Rule 6.1, nor can we overlook the fact that this right was denied Holland in this case. The Arizona Supreme Court in McNutt, supra, limited Campbell to an implied consent situation. We need not overturn Campbell, as suggested in the dissent, but acknowledge Justice Gordon's distinction in the following language:
133 Ariz. 7, 10, n. 2, 648 P.2d 122, 125, n. 2. (Emphasis added).
In this case the officer gave Holland that opportunity 2, and just as promptly took it away by not allowing a private conversation with his attorney. Such a right is also indicated by the language in McNutt. Holland was denied "access" by not being able to be advised by his attorney, and because of this, the trial court properly granted dismissal of the case.
We cannot speculate as to how he may have been harmed by this denial, without justification, of a private consultation with his attorney. 3 Therefore, we acknowledge dismissal as the proper remedy.
In affirming the trial court's dismissal in this case, we do not decide, as the court did in Shaw, that being compelled to take the breathalyzer test with only penalties for refusal having been mentioned to the accused, is such a "critical stage" as to require assistance of counsel.
We decide, given the peculiar facts of this case, that Holland had a right to speak privately with his attorney, once the officer made the call, and that McNutt does require that an accused promptly be given that opportunity if he demands it. More importantly, McNutt says law enforcement officials may not without justification prevent access between an accused and his attorney. That is exactly what occurred in this case.
McNutt does not mandate, nor do we consider, that law enforcement officials become jailhouse lawyers, as suggested in the dissent. How hard can it be, how much of a burden can it create, to require an arresting officer to follow the Arizona Supreme Court's ruling in McNutt? If an accused so requests, and it does not interfere with the time or taking of the test, he may call his attorney and speak to him privately in order to "gather evidence relevant to intoxication close in time to when defendant allegedly committed the crime." 133 Ariz. at 10, n. 2, 648 P.2d at 125, n. 2.
I agree with Judge Lacagnina's opinion. I note that the defendant's request to contact his attorney appears to...
To continue reading
Request your trial
-
State v. Holland
...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 fo......