State v. Holland, No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtLACAGNINA; HATHAWAY; LIVERMORE
Citation711 P.2d 602,147 Ariz. 463
PartiesThe STATE of Arizona, Appellant, v. Robert Lee HOLLAND, Appellee. 8093.
Docket NumberCA-CR,No. 1
Decision Date18 June 1985

Page 602

711 P.2d 602
147 Ariz. 463
The STATE of Arizona, Appellant,
v.
Robert Lee HOLLAND, Appellee.
No. 1 CA-CR 8093.
Court of Appeals of Arizona,
Division 1.
June 18, 1985.

Thomas E. Collins, Maricopa County Atty. by H. Allen Gerhardt, Deputy County Atty., Phoenix, for appellant.

Minne & Sorenson by Roger J. Blake, Phoenix, for appellee.

OPINION

LACAGNINA, Judge.

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 [147 Ariz. 464]

Page 603

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:

"This action by the state clearly violated petitioner's 'right to consult in private with an attorney * * * as soon as feasible after a defendant is taken into custody' guaranteed by Ariz.R.Crim.P. 6.1(a). We agree with the Court of Appeals of New York, which said '[L]aw enforcement officials may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand.' People v. Gursey, 22 N.Y.2d 224, 227, 239 N.E.2d 351, 352, 292 N.Y.S.2d 416, 418 (1968); see State ex rel Webb v. City Court, 25 Ariz.App. 214, 542 P.2d 407 (1975). * * * " 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:

"The second sentence is intended to serve as a directive to law enforcement officials that defense attorneys, their staff, and experts should be given full access to clients, subject only to reasonable time and place limitations required for orderly and efficient jail operations and the maintenance of security. This should alleviate the difficulty, reported by a number of committee members, in communicating with jailed clients." 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):

"The argument here involves more. The failure to note the benefits of refusal [to take the test] can well result in a detriment to the defendant at the trial. [147 Ariz. 465]

Page 604

This is not a matter of an administrative penalty effecting the right to use a highway, but concern which goes to the very heart of the defendant's ability to mount a defense in a criminal proceeding. It may well be that the 'better' course would be to accept the 'Penalties' and proceed to trial.... At a minimum, the benefits and detriments of each option could only be intelligently assessed in the presence of an attorney, ..." (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...

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1 practice notes
  • State v. Holland, No. 6637-PR
    • United States
    • Supreme Court of Arizona
    • December 9, 1985
    ...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 [147 Ariz. 455] Page 59......
1 cases
  • State v. Holland, No. 6637-PR
    • United States
    • Supreme Court of Arizona
    • December 9, 1985
    ...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 [147 Ariz. 455] Page 59......

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