I respectfully dissent from the majority's decision to reverse appellant's conviction and remand the cause for a new trial. After a thorough view of the record before this court, I believe the trial court did not err in finding that appellant's right to counsel pursuant to R.C. 2935.20 was not violated. Moreover, I do not believe that violation of a statutory right to counsel, if found (and I do not believe the evidence supports such a finding), will result in a due process violation requiring the suppression of the results of a breathalyzer test.
Initially, I must take issue with the majority's assertion that "[i]t is undisputed that defendant expressed a desire for an attorney before refusing to sign a waiver *Page 692 of rights form presented by the officers. This request was disregarded by the officers and the booking process continued." The issues of whether appellant was informed of her right to counsel and whether she was provided an opportunity to speak with counsel were fully litigated in the court below. After hearing all of the evidence and arguments of counsel, the trial court made the following findings in its judgment entry overruling appellant's motion:
"At the hearing in the present case a tape recording of the entire booking procedure was admitted into evidence by stipulation of the parties. The evidence presented at the hearing shows that the defendant was informed of her right to counsel when she was brought to the Lakewood Police Station. The rights were fully read by Officer Trommer, the arresting officer. The defendant was reluctant to sign the waiver of rights form and raised the issue of consulting with an attorney. The defendant did not ask to speak to an attorney prior to completing the booking procedure, but instead, proceeded to give the police officers basic health and other background information about herself.
"During the course of the booking procedure the defendant attempted to place calls to both her fiance and her sister, and ultimately was able to contact her father by telephone. The evidence also shows that on two separate instances Officer Boomer asked the defendant for a name of someone to call in order to post bond.
"At the time of the administration of the breath/alcohol test, the defendant was read the implied consent orally by Officer Trommer. The defendant asked if she could consult with an attorney and Officer Boomer responded by asking her for the telephone number of her attorney. The defendant did not want to contact her attorney at that time. When informed of the time constraints to take the test, she agreed to do so without consulting counsel.
"A review of the record shows that Officers Boomer and Trommer fully explained the right to counsel and provided numerous opportunities for the defendant to contact counsel. The decision not to contact an attorney was made by the defendant, after full disclosure and opportunity to do so. The facts in this case distinguish it from both Scarlett, supra, andFullan, supra, in which the police did not permit the defendant to make a telephone call until after the breath/alcohol test was administered. In the present case the police not only provided the defendant with the ability to make phone calls prior to the breath/alcohol test, but also repeatedly initiated the process.
"Based upon the foregoing, the Court finds that there was no denial of right to counsel, under Ohio Rev. Code Sec. 2935.20 or either the Ohio or Federal Constitutions. Accordingly, the defendant's motion in limine and motion to suppress are overruled." *Page 693
Based on the trial court's express findings, it is beyond cavil to suggest that the police officers disregarded appellant's expressed desire for an attorney. It is axiomatic that, at a suppression hearing, the evaluation of evidence and the credibility of the witnesses are issues to be decided by the trier of fact. State v. Mills (1992), 62 Ohio St.3d 357, 366,582 N.E.2d 972, 981-982, citing State v. Fanning (1982), 1 Ohio St.3d 19,20, 1 OBR 57, 57-58, 437 N.E.2d 583, 584-585. "The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." SeasonsCoal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 411-412, 461 N.E.2d 1273, 1276.
Appellate courts are bound to accept a trial court's findings of fact, which must be stated on the record, see Crim.R. 12(E), if they are supported by competent, credible evidence. State v.Klein (1991), 73 Ohio App.3d 486, 488, 597 N.E.2d 1141,1142-1143. Accepting those facts as true, an appellate court must independently determine, as a matter of law, without deference to a trial court's conclusion, whether the trial court's decision meets the applicable legal standard. Id.
A review of the record sub judice leads me to conclude that appellant was not denied right to counsel under R.C. 2935.20. Appellant's first comment concerning her right to counsel came shortly after the booking procedure commenced. An audiotape of the booking procedure was admitted at the hearing and reveals the following:
"OFFICER TROMMER: All it states is that you're going to answer our questions, and you never really give up your rights. If at any time you want to stop answering questions, you can stop answering questions.
"MS. WASELENCHUK: I'm scared. This sounds like I'm up under a real big serious thing, and I think I should have an attorney (inaudible)[.]
"OFFICER BOOMER: You don't need to sign it now. That's fine.
"MS. WASELENCHUK: I'd rather just not (inaudible)."
If, at this point, the record reflected that appellant was administered the breathalyzer test, it might be concluded that appellant was not provided an opportunity to consult with counsel. However, the record reveals that appellant was afforded an adequate opportunity to consult with counsel prior to voluntarily taking the breathalyzer test. After the above exchange, the officers continued to ask appellant informational questions, which she voluntarily answered in an attempt to cooperate. As the booking procedure progressed, appellant was *Page 694 permitted to make phone calls to her fiance, her sister, and her father in order to arrange bond.
After the booking procedure was complete, Officer Trommer read appellant Ohio's implied consent law and asked her if she would consent to a breathalyzer test. The following exchange took place:
"MS. WASELENCHUK: I don't want to lose my license for a year. God, and I have to decide this without a lawyer?
"OFFICER BOOMER: Do you have a phone number of a lawyer you want to call?"
Although the above exchange took place approximately one hour and fifteen minutes after the arrest, leaving approximately forty-five minutes remaining in which appellant could be administered the test, appellant declined to contact an attorney. Nonetheless, the majority concludes that "[e]ven if the time available was not adequate to allow the attorney's physical presence, the defendant's rights could have been preserved by telephone communication."
I believe sufficient evidence exists supporting the trial court's conclusion that appellant was not deprived of her statutory right to counsel. The record is clear that appellant was afforded an opportunity to contact an attorney by phone with more than sufficient time, approximately forty-five minutes, to consult with an attorney. Additionally, I believe the entire record supports the trial court's conclusion that the "decision not to contact an attorney was made by the defendant, after full disclosure and opportunity to do so."
The record clearly reflects that appellant was made aware of her right to counsel early on in the booking procedure. Appellant made at least three phone calls: one to her fiance, one to her sister, and one to her father. Nothing in the record reveals that appellant was prohibited from contacting an attorney during the time in which she made the above phone calls. It is undisputed that, at this time, appellant was aware of her right to an attorney and that she could have called an attorney or had her father or anyone else she wanted to call to contact an attorney. Finally, Officer Boomer clearly asked her if she had the number of an attorney that she would like to contact. She responded that she did not and proceeded to voluntarily take the breathalyzer test.
I further believe that the majority's conclusion that a violation of appellant's statutory right to counsel under R.C.2935.20 amounts to a denial of due process is misplaced, both factually and legally. First, as explained previously, I do not believe appellant was denied her statutory right to counsel. Additionally, even if a denial of the statutory right to counsel amounts to a violation of appellant's due process rights, which I dispute, I believe the facts sub judice refute the majority's conclusion that appellant's due process rights were violated. In this vein, the *Page 695 majority's reliance on State v. Scarlett (Sept. 3, 1987), Montgomery App. No. 10378, unreported, 1987 WL 16568, andState v. Larson (Dec. 12, 1988), Fairfield App. No. 16-CA-88, unreported, 1988 WL 138429, is misplaced. In Scarlett, the court of appeals implied that if Scarlett had been permitted to contact her attorney thirty-five minutes before the expiration of the two-hour period, as she requested, due process would not have been violated, since the blood-alcohol test could still have been timely administered. Id. at 18-19. As it turned out, Scarlett was able to contact her attorney within the two-hour time limit but only after the test had been administered.
In Larson, the court of appeals found a due process violation only after the police officer told Larson "she was not entitled to have an attorney." Larson, supra, at 2. As a result, Larson did not ask to make a telephone call, and no telephone was made available.
Unlike Scarlett and Larson, the facts in the present case do not demonstrate that appellant was denied an opportunity to consult with an attorney prior to taking the breathalyzer test. As was implicit in Scarlett, no due process violation occurred, since appellant herein was afforded an opportunity to contact an attorney by phone prior to taking the breathalyzer test.
Finally, I do not believe that a violation of a statutorily created right to counsel amounts to a constitutional due process violation that would require suppression of the breathalyzer test results. The majority accurately sets forth the basic proposition that there is no Sixth Amendment constitutional right to counsel prior to taking a breathalyzer test. McNulty v.Curry (1975), 42 Ohio St.2d 341, 345, 71 O.O.2d 317, 319,328 N.E.2d 798, 801-802; Snavely v. Dollison (1978), 61 Ohio App.2d 140,141, 15 O.O.3d 244, 244-245, 400 N.E.2d 415, 415-416;CIM of Univ. Hts. v. Ward (June 19, 1975), Cuyahoga App. No. 33984, unreported. The Ohio Supreme Court in McNulty v. Curry,supra, held that the stage of an investigation where a defendant is requested to undergo a breathalyzer test is not a "critical stage" and, therefore, there was no constitutional right to counsel. Since there was no constitutional violation, the exclusionary rule is not applicable and, therefore, suppression of the evidence was not required. Id.; see, also, State v.Meyers (1990), 66 Ohio App.3d 717, 721, 586 N.E.2d 155, 157-158. More recently, the Ohio Supreme Court has reaffirmed the long-standing principle that a violation of a statutorily created right does not require suppression of evidence absent any constitutional infringement. State v. Hill (1992), 64 Ohio St.3d 313,321, 595 N.E.2d 884, 892; see, also, State v. Geraldo (1981), 68 Ohio St.2d 120, 128-129, 22 O.O.3d 366, 371-372,429 N.E.2d 141, 147-148; Kettering v. Hollen (1980), 64 Ohio St.2d 233, 18 O.O.3d 435, 416 N.E.2d 598; State v. Unger (1981),67 Ohio St.2d 65, 70, 21 O.O.3d 41, 44-45, 423 N.E.2d 1078,1081-1082. *Page 696
Moreover, it is generally well accepted that Ohio does not recognize the application of the exclusionary rule to violations of R.C. 2935.20 in prosecutions for driving under the influence.Columbus v. Reid (1986), 32 Ohio App.3d 7, 513 N.E.2d 351. Until today, this court has followed the general rule. State v. Harris (Dec. 26, 1976), Cuyahoga App. No. 35274, unreported, at 6. As Judge Whiteside explained in his concurring opinion inColumbus v. Reid, supra, at 9, 513 N.E.2d at 353:
"* * * This court has previously addressed the basic issue stating in State v. Royster (Aug. 26, 1975), No. 75AP-195, unreported, at 8-9:
"`* * * The exclusionary rule as to statements made by a person arrested is predicated upon constitutional principles; namely, the constitutional principles of right to counsel and against self-incrimination. There is no corresponding exclusionary rule with regard to statutory violations. Neither R.C. 2935.14 nor 2935.20 excludes evidence by way of statement of the person arrested or otherwise, even if the statutes were violated. * * *'
"As indicated in the majority opinion, the exclusionary rule was fashioned by the United States Supreme Court as a means of enforcing certain constitutional rights afforded by the United States Constitution. No reason has been demonstrated for extension of an exclusionary rule to statutory violations. There is no reason or authority for imposition of an exclusionary rule to violation of R.C. 2935.20."
More recently, the Twelfth District Court of Appeals reaffirmed the principle of Columbus v. Reid that a police officer's failure to advise a defendant of her right to counsel does not require suppression of breath/alcohol test results. SeeMason v. Albertson (May 4, 1992), Warren App. No. CA91-07-59, unreported, 1992 WL 93075. For the reasons stated in Columbus v.Reid, I would conclude that the exclusionary rule does not apply to violations of the statutorily created right to counsel prior to taking a breathalyzer exam.
Despite the general rule prohibiting application of the exclusionary rule to statutory violations, the majority concludes that the breathalyzer test results should still be excluded based on the premise that a violation of a statutory right to counsel amounts to a violation of the Due Process Clause of the Fourteenth Amendment. On its face, the Due Process Clause provides that "nor shall any State deprive any persons of life, liberty, or property, without due process of law * * *."
In order to determine whether a due process violation which is premised on an alleged violation of a statutory right to counsel has occurred, a review of the constitutional right to counsel is warranted. To begin, it must be noted that the constitutional right to counsel is derived from two sources within the *Page 697 United States Constitution. See Rhode Island v. Innis (1980),446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297; and United States v. Henry (1980), 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115.
First, the Fifth Amendment's privilege against self-incrimination contemplates certain procedural safeguards, including the right to the presence of an attorney. Miranda v.Arizona (1966), 384 U.S. 436, 478, 86 S.Ct. 1602, 1629-1630,16 L.Ed.2d 694, 725-726. These procedural safeguards attach any time a defendant is interrogated after being taken into custody.Id.; Illinois v. Perkins (1990), 496 U.S. 292, 110 S.Ct. 2394,110 L.Ed.2d 243. The privilege against self-incrimination "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial nature." Pennsylvania v. Muniz (1990), 496 U.S. 582,589, 110 S.Ct. 2638, 2643, 110 L.Ed.2d 528, 543-544. It does not protect a suspect from being compelled by the state to produce real or physical evidence. Id.
Second, the Sixth Amendment provides defendants with the right to counsel once formal proceedings have been initiated.Massiah v. United States (1964), 377 U.S. 201, 84 S.Ct. 1199,12 L.Ed.2d 246; and Brewer v. Williams (1975), 430 U.S. 387,97 S.Ct. 1232, 51 L.Ed.2d 424. The right to counsel under theSixth Amendment attaches to critical stages of the proceedings.United States v. Wade (1967), 388 U.S. 218, 224, 87 S.Ct. 1926,1930-1931, 18 L.Ed.2d 1149, 1155-1156.
As will be seen, the issue of whether various provisions of the United States Constitution are offended by the involuntary administration of blood-alcohol tests or breathalyzer tests has been thoroughly explored by the United States Supreme Court.
In Schmerber v. California (1966), 384 U.S. 757,86 S.Ct. 1826, 16 L.Ed.2d 908, the United States Supreme Court concluded that California did not violate the defendant'sFourteenth Amendment due process rights by extracting a blood sample from the defendant, who was suspected of driving an automobile while under the influence of intoxicating liquor, despite his refusal to consent. Citing its previous decision in Braithaupt v. Abram (1956), 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448, in which the same issue was explored, the court explained that under such circumstances, "the withdrawal did not offend that `sense of justice' of which we spoke in Rochin v. California (1951),342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183." Schmerber, supra,384 U.S. at 760, 86 S.Ct. at 1830, 16 L.Ed.2d at 913.
The Schmerber court also explored the issue of whether the involuntary administration of a blood-alcohol test violated other provisions of the federal Constitution. The court concluded that neither the Fifth Amendment's privilege against self-incrimination nor the Fourth Amendment's prohibition against unreasonable searches and seizures prohibits an officer from withdrawing a blood *Page 698 sample from a defendant, despite his lack of consent, where probable cause exists for the search and seizure of the blood sample. The Schmerber court also concluded that the defendant'sSixth Amendment right to counsel was not violated, since the defendant had no right to refuse to take the test. See, also,State v. Henderson (1990), 51 Ohio St.3d 54, 57, 554 N.E.2d 104,108 ("The nonverbal results of appellee's breathalyzer and field sobriety tests are not self-incriminating statements * * * and are not rendered inadmissible by the Miranda violations.");State v. Brandenburg (1987), 41 Ohio App.3d 109, 534 N.E.2d 906; and State v. Feasel (1988), 41 Ohio App.3d 155, 534 N.E.2d 940.
Additionally, in South Dakota v. Neville (1983),459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748, the Supreme Court held that South Dakota's implied consent law, which specifically provided that the refusal to submit to a blood-alcohol test may be admissible into evidence at the trial for drunk driving, does not violate a defendant's Fifth Amendment constitutional privilege against self-incrimination. See, also, State v.Rollyson (1984), 20 Ohio App.3d 336, 20 OBR 439, 486 N.E.2d 838 ("Statements refusing to take the breath and/or urine tests are not protected against self-incrimination and, thus, are admissible." Id., paragraph one of syllabus; South Dakota v.Neville, supra, followed.).
More recently, the United States Supreme Court reaffirmed the principle that remarks made during standardized booking procedures are admissible, notwithstanding the failure of the police to provide Miranda warnings, so long as the statements are not testimonial in nature and made while in custody.Pennsylvania v. Muniz (1990), 496 U.S. 582, 110 S.Ct. 2638,110 L.Ed.2d 528. Thus, remarks made by a DUI suspect in connection with videotaped efforts to perform sobriety tests and regarding his refusal to take a breathalyzer test were admissible and did not implicate the Fifth Amendment's privilege against self-incrimination. Id.
Chemical or breath testing of individuals suspected of driving while intoxicated has been upheld against constitutional attack in numerous other settings. In Michigan v. Sitz (1990),496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412, the United States Supreme Court upheld the constitutionality of sobriety checkpoints, against a Fourth Amendment attack, in light of the state's interests in preventing harm from drunk drivers. The United States Supreme Court has also upheld the constitutionality of the license-suspension provisions of an implied consent law against procedural due process challenges contesting the lack of a prior hearing in Mackey v. Montrym (1979), 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321.
Finally, the case of Dixon v. Love (1977), 431 U.S. 105,97 S.Ct. 1723, 52 L.Ed.2d 172, cited by the majority, does little to support the majority's analysis. In Dixon, the Supreme Court concluded that the procedures used by Illinois to suspend or revoke the license of a driver who repeatedly had been convicted of *Page 699 traffic offenses did not violate the procedural Due Process Clause of the Fourteenth Amendment. Moreover, the Supreme Court relied on Dixon in concluding in Mackey v. Montrym that the license suspension provisions of an implied consent law did not violate procedural due process.
In light of the foregoing analysis of the dearth of constitutional rights implicated by the administration of a breathalyzer test, it is readily apparent that the majority's conclusion that a due process violation exists is an attempt to bootstrap a statutory violation into a constitutional violation when a constitutional violation would not otherwise exist. As there exists no Fourth, Fifth, Sixth, or Fourteenth Amendment constitutional right to refuse to take a breathalyzer test or to consult with an attorney prior to taking such test, it hardly seems reasonable to conclude that a violation of an extraconstitutional, statutory right can result in a violation of due process under the Fourteenth Amendment warranting suppression of the evidence. In this vein, it is wise to remember Justice Frankfurter's admonition in Rochin v.California, supra, that "Due Process of law * * * is not to be turned into a destructive dogma against the states in the administration of their systems of criminal justice." Id.,342 U.S. at 168, 72 S.Ct. at 208, 96 L.Ed. at 188.
The question, then, of what "process" is "due" when considering a violation of a statutorily created right turns on the very statute which creates that right. Since the present right to counsel pursuant to R.C. 2935.20 is not required by the United States and Ohio Constitutions, the statutorily created right to counsel is accompanied by the procedural limitations included in the right. Arnett v. Kennedy (1974), 416 U.S. 134,153-154, 94 S.Ct. 1633, 1644, 40 L.Ed.2d 15, 32-33 ("Where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant * * * must take the bitter with the sweet."). Thus, when the Ohio legislature adopted R.C.2935.20, it determined that certain procedural limitations were to accompany the grant of the right to consult an attorney. The procedural limitations included in the statutorily created right prohibit the application of the exclusionary rule under long-held principles applying the exclusionary rule to constitutional violations and by specifically limiting the remedy for such violations to a fine not less than $25 nor more than $100 or imprisonment for not more than thirty days, or both, for those who violate a person's right to counsel.
By enacting Ohio's right-to-counsel statute, the Ohio legislature clearly attempted to provide Ohioans with a substantive right to counsel where such right is not otherwise constitutionally required. This right to counsel does not come without some limitations (as described above), nor does it come without some teeth. The statute is clearly designed to afford those under arrest, detention or custody a right to counsel and that the police must provide the suspect with facilities (1) to communicate with an attorney of his choice who is licensed to *Page 700 practice in the courts of this state, or (2) to communicate with any other person of his choice for the purpose of obtaining counsel. Such person is also entitled to consult with his attorney in private. No officer or any other agent of this state shall prevent, attempt to prevent, or advise such person against the communication, visit, or consultation.
Finally, the statute comes with some very substantial penalties against an officer or other agent of this state who violates this section. As stated above, the penalties shall be not less than $25 nor more than $100 or imprisonment for not more than thirty days, or both, for those who violate this section. Such penalties can be assessed after the issue is raised by either the aggrieved party or the appropriate authorities following an independent judicial inquiry finding that such a violation of the statute has occurred.
By the stroke of a pen, the majority adds the remedy of suppression of the breathalyzer test results to the penalties expressly provided by the statute. Conceivably, then, not only could the individual police officer be penalized pursuant to the statute, but also the public penalized and the accused rewarded by having test results suppressed pursuant to the majority's opinion.
The result reached today by the majority, however, could justifiably lead the Ohio legislature to conclude that the right to counsel pursuant to R.C. 2935.20, as interpreted by this court and other courts applying the Scarlett and Larson rationale, unnecessarily hinders the prosecution in enforcement of Ohio's DUI laws. The General Assembly could, consequently, determine to repeal that portion of Ohio's right-to-counsel statute to make it clear that a DUI suspect does not have a right to consult with counsel prior to taking a breathalyzer test without offending the United States and Ohio Constitutions. See Schmerber, and McNulty v. Curry, supra. The result reached today by judicial fiat could ultimately cost Ohioans the benefit of a well-intended law passed by the legislature to provide legal counsel, where it is otherwise not constitutionally required, to those unfortunate enough (or careless enough) to be caught in a precarious legal predicament with substantial and real attendant penalties attached thereto.
Therefore, based on the foregoing, I would overrule appellant's assignments of error and affirm the judgment of the Lakewood Municipal Court. *Page 701