No. 84-079
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA, CITY OF BOZEMAN,
Plaintiff and Appellant,
-vs-
TIMOTHY B. ARMFIELD,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Mary L. Crumbaker-Smith argued, Bozeman, Montana
For Respondent :
H. Charles Stahmer argued, Bozeman, Plontana
--
Submitted: October 9, 1984
Decided: December 28, 1984
-*,&& Clerk
d
r . C h i e f J u s t i c e F r a n k 7 . Haswel-I d e l i v e r e d t h e O p i n i o n o f
t h e Court.
The C i t y o f Fozeman and S t a t e o f Montana a p p e a l from a n
o r d e r o f t h e G a l l a . t i n County D i s t r i c t C o u r t g r a n t i n g s u p p r e s -
s i o n of the results of a breathalizer test. We reverse.
Timothy A r m f i e l d was a r r e s t e d on a c h a r g e o f d r i v i n g
while under t h e i n f l u e n c e of a l c o h o l . H e w3.s t a k e n t o t h e
G a l l a . t i n County D e t e n t i o n C e n t e r and i n f o r m e d of t h e Yontana
c o n s e n t law a n d o f h i s r i g h t t o r e f u s e t o s u b m i t t o a b l o o d
alcohol test. H e was i n f o r m e d , a t t h e same t i m e , t h a t he d i d
not have a right to consult an attorney before deciding
w h e t h e r t o s u b m i t to t h e c h e m i c a l t e s t i n g . Armfield agreed
t o take t h e test.
Defendant Armfield i n i t i a l l y f i l e d a motion t o s u p p r e s s
t h e r e s u l t s o f t h e b r e a t h t e s t i n Rozeman C i t y C o u r t . The
m o t i o n was d e n i e d and. A r m f i e l d p l e a d e d g u i l t y . On a p p e a l t o
D i s t r i c t Court, d e f e n d a n t agiiin moved t o s u p p r e s s t h e t e s t
results, asserting that he had a constitutional right to
c o n s u l t w i t h an a t t o r n e y b e f o r e d e c i d i n g whether t o submit t o
a breathalizer test. H i s m o t i o n was g r a n t e d , and t h e r e s u l t s
of t h e test ordered suppressed.
The City and State challenge the District Court's
finding of a limited c o n s t i t u t i o n a l r i g h t t o counsel. Appel-
lants' claims a r e correct. Neither t h e United S t a t e s nor
Montana c o n s t i t u t i o n s g u a r a n t e e a d e f e n d a n t t h e o p p o r t u n i t y
to seek an attorney's a.dvice b e f o r e deciding whether to
submit o r n o t t o submit t o a blood a l c o h o l t e s t .
Monta.na h a s e n a c t e d t h e f o l l o w i n g c o n s e n t law:
" ( 1 ) A n y p e r s o n who o p e r a t e s a motor
v e h i c l e upon ways o f t h i s s t a t e open t o
t h e p u b l i c s h a l l b e deemed t o h a v e g i v e n
consent .. . t o a chemical t e s t of h i s
blood, b r e a t h , o r u r i n e f o r t h e purpose
of determining t h e al.coholic content of
his blood if arrested by a peace officer
for driving or in actual physical control
of a motor vehicle while under the influ-
ence of a 1coho1 . The test shall be
administered at the direction of a peace
officer having reasonable grounds to
believe the person to have been driving
or in actual physical control of a motor
vehicle upon ways of this state open to
the public while under the influence of
alcohol. ...
(3) If a resident driver under arrest
refuses upon the request of a peace
officer to submit to a chemical test
desiqnated by the arresting officer ...
none shall be given, but the officer
shall, on behalf of the division, immedi-
ately seize his driver's license. The
peace officer shall forward the license
to the division, along with a sworn
report that he had reasonable grounds to
believe the arrested person had been
driving or was in actual physical control
of a motor vehicle upon ways of this
state open to the public, while under the
influence of alcohol and that the person
had refused to submit to the test upon
the request of the peace officer. IJpon
receipt of the report, the division shall
suspend the license for the period pro-
vided in subsection (5).
" (5) The following suspension and revo-
cation periods are applicable upon refus-
al to submit to a chemical test:
"(a) upon a first refusal., a suspension
of 90 days with no provision for a re-
stricted probationary license;
" (b) upon a second or subsequent refusal-
within 5 years of a previous refusal, as
determined from the records of the divi-
sion, a revocation of 1 year with no
provision for a restricted probationary
license." Section 61-8-402, MCA.
Defendant does not chal.lenge the statute ' s validity or
the fact that his consent to testing is deemed given as a
matter of law. The sole issue on appeal is whether a driver
arrested on a charge of driving while under the influence of
alcohol has a right to seek legal advice before deciding
whether to submit or refuse to submit to a blood alcohol.
test.
The District Court held that the Sixth 2 n d Fourteenth
Amendments afford defendant a reasonable opportunity to
consult counsel prior to submitting to a breathalizer test.
A "reasonable opportunity" is defined as the twenty or thirty
minutes required to warm up the breathalizer.
There is rc constitutj-onal support for a finding of a
limited right to seek the advice of counsel. The Sixth and
Fourteenth Amendments do not guarantee defendant's counseled
consent to testing where consent is deemed given as a matter
of law. Standish v. Dept. of Revenue, M.V.D. (Kan. 1984),
6434 P.2d 1276, I281 (holding, under a consent statute similar
be3
to Montana's, that when "state law deems that all d-rivers
have given consent to chemical tests cf blood or breath when
arrested for driving while under the influence, ... no
constitutional right to consult counsel in order to determine
whether to submit to the test attaches").
I
The Sixth Amendment guarantees defendant the right to
the assistance of counsel in all prosecutions. U. S. Const.,
Amend. VI; Art. 11, Sec. 24, 1972 Mont. Const. The right
attaches when the investigation focuses on the defendant
(Escobedo v. Ill-inois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12
L.Ed.2d 9 7 7 ) and continues through the final appeal of right.
Douglas v. California (1963), 372 U.S. 353, 83 S.Ct. 814, 9
L.Ed.3~3 811; Ross v. Moffitt (19741, 417 U.S. 600, 94 S.Ct.
2437, 41 L.Ed.2d 341.
The right to counsel is ultimately intended as a pro-
tection of a defendant - trial.
at United States v. Ash
(1973), 413 U.S. 300, 93 S.Ct. 2568, 37 IJ.Ed.2d 619 (denying
a right to the presence of counsel at photographic displays).
The guarantee of assistance of counsel at trial does not
carry with it a generalized right to legal representation or
consultation.
Armfield is, of course, entitled to the assistance of
counsel at trial. A.rgersingerv. Hamlin (1972), 407 u.S. 25,
92 S.Ct. 2006, 32 IJ.Ed.2d 530. As a part of his right to a
fair trial, he is also entitled to (1) the pretrial presence
of counsel where the incident or encounter is a "critical
stage" in the prosecutorial proceedings, United States v.
Wade (1967) 388 U.S. 218, 87 S.Ct. 3.926, 18 ~.Ed.2d 1149
(requiring counsel's presence where pretrial procedures
threaten prejudice which may not be capable of reconstruction
at trial), and (2) the assistance of counsel at any stage in
the pretrial proceedings where the advice of counsel is
essential to the protection of his Fifth Amendment privilege
against self-incrimination. Escobedo, 378 U.S. at 385-387;
Massiah v. United States (1964), 377 U.S. 201, 84 S.Ct. 1199,
Armfield does not claim that he was entitled to the
presence of counsel or that chemical. testing is a critical
stage of the prosecution. Systematized or scientific
analysis of defendant's fingerprints, clothes, blood, hair,
or breath does not present the problems inherent in Wade's
pretrial lineup; a hreathalizer test is not susceptible of
the suggestive manipulation chara.cteristic of the "critical
stage" event.
"Knowledge of the techniques of science
and technology is sufficiently available,
and the variables in techniques few
enough, that the a-ccusedhas the opportu-
nity for a meaningful confrontation of
the Government's case at trial through
the ord-inary processes of cross-examina-
tion of the Government's expert witnesses
and the presentatj-on of the evidence of
his own experts. The denial. of a right
.
to have his counsel. present at such
analyses does not therefore violate the
Sixth Amendment; they are not critical
stages since there is m.inima1 risk that
his counsel's absence at such stages
might derogate from his right to a fair
trial." Wade, 388 U.S. at 227-228.
The presence of counsel was not required at Armfield's
breathalizer test to ensure a mea.ningfu1 confrontation and
the effective assistance of counsel at trial.
The Massiah, Escobedo 2nd lliranda decisions link the
Flfth Amendment privilege to the Sixth Amendment ' s right to
counsel. Escobedo and. Miranda sought to preserve the privi-
lege against self-incrimination through protection of defen-
dant from the coerci~~e
aspects of custodial. interrogation.
Escobedo, 378 U.S. at 478; Miranda v. Arizona (1966), 384
U.S. 436, 86 S.Ct. 1602, 16 L.F.d.2d 694. ~assiah sought
similar protections where uncounseled and. undisclosed
post-indictment noncustodial interrogation elicited incrimi-
nating statements. Massiah, 377 U.S. at 201. All. three
decisi0n.s characterize the right to assistance of counsel as
a necessary means of preserving defendant's privilege against
self-incrimination--his absolute right to refuse to testify
or communicate.
The results of a breath test are not self-incriminatimg
cornmunicat.ions. South Dakota v. Neville (1983), 459 u.S.
553, 103 S.Ct. 916, 74 L.Ed.2d 748 (including defendant's
communicated refusal to submit to testing within the area of
unprotected physical evidence). State v. Jackson (Mont.
1983), 672 P.2d 255, 40 St.Rep. 1698 (relying on Neville to
hold that the admission of evidence of defendant's refusal to
submit to a breathalizer test did not offend his privilege
against self-incrimination). The Fifth Amendment "offers no
protection against compulsion to submit to fingerprinting,
photography, or measurements, to write or speak for identifi-
cation, to appear in court, to stand, to assume a stance, to
walk, or to make a particular gesture." Wade, 388 U.S. at
223; see also Gilbert v . California (1967), 388 U.S. 363, 87
S.Ct. 1951, 18 L.Ed.2d 1178 (finding handwriting to be among
the unprotected physical characteristics, like the voice or
body itself, and the taking of the exemplar not to be a
"critical stage" of the criminal proceeding). Defendant's
blood alcohol level, like his voice or body, is unprotected
"physical or real" evidence, not Fifth Amendment communica-
tions. Schmerber v. California (1966), 384 U.S. 757, 86
S.Ct. 1826, 16 L.Ed.2d 908 (holding that a state can force a
defendant to submit to a blood alcohol test since the Fifth
Amendment protects only communicative or testimonial
evidence) .
Defendant enjoys a right to consult counsel only where
the assistance of counsel is required to protect other rights
guaranteed him by law. The breathalizer test threatened no
invasion of a protected right. Armfield was deemed, as a
matter of law, to have consented. to testing. Neither consent
nor refusal is constituti.onally protected, and no right to
consult counsel attaches to a choice between the two.
I1
The trial court based its finding of a right to counsel
on the Fourteenth 5s well as t.he Sixth Amendment. The Four-
teenth Amendment provides two separate sources for a finding
of right to counsel.: (1) the Amendment ma-kes the Sixth
Amendment right to counsel applicable to the states; and (2)
the Amendment, in and of itself, guarantees certain procedur-
al rights held to be "of the very essence of a scheme of
ordered liberty." Palko v. Connecticut (1937), 302 U.S. 319,
325, 5 8 S.Ct. 149, 8 2 L.Ed. 2 8 8 .
The Sixth Amendment makes no provisi-on for a limited
right to consult counsel before deciding to refuse or submit
to a breathalizer test. The right, if it exists, exists
within the "vague contours" of the Fourteenth Amendment
itself. Rochin v. California (1952), 342 U.S. 1.65, 3.70, 72
S.Ct. 205, 96 L.Ed. 3.83. The due process clause imposes upon
the states "the general requirement that States in their
prosecutions respect certain decencies of civilized conduct.
Due process of law, as a historic and generative principle,
precludes defining, and thereby confining, these standards of
conduct more precisely than to say that convictions cannot be
brought about by methods that offend 'a sense of justice'."
Rochin. 342 U.S. at 173.
Rochin, like Schmerber and Neville, involved only
unprotected physical evidence. Unlike Schmerber and Neville,
the case also involved police "methods too close to the rack
and the screw to permit of consti.tutiona1 differentiation. "
Rochin, 342 U.S. at 172. Sheriff's deputies illegally en-
tered the defendant's home, forced the door to his bedroom
and, when the defendant attempted to swa1I.o~two morphine
capsules, jumped him and strugqled to open his mouth and
extract the evidence. Failing at their initial seizure
attempt, the deputies handcuffed the defendant, took him to a
hospital and had his stomach pumped until induced vomiting
produced the capsules. The Court implicitly acknowledged. and
avoided the Fifth Amendment limitations and condemned the
conduct as violative of the decency demands of due process.
Armfield was arre~ted, informed of his riqhts and the
Montana consent statute ' s requirements. He was denied the
opportunity to seek the advice of counsel. The test was
conducted in compliance with statutory provisions. See
S 61-8-405, MCA. We hold that the requirements of due pro-
cess were met. U. S. Const., Amend. XIT7; Art. 11, Sec. 17,
1972 Mont. Const. We find the "community's sense of fair
play and decency" to be embodied in the consent law itself.
See Rochin, 342 U.S. at 173; Neville, 459 U.S. at 558 (la-
menting the increasing slaughter on our highways and recog-
nizing the state's compelling interest in highway safety).
We do not find that the Armfield denial- of an opportunity to
call counsel constitutes the kind of conduct that requires
the delineation of due process prohibition. Compare Rochin,
342 U.S. at 172-74 (describing legalized force so brutal as
to offend our sense of human dignity).
The order of the District Court is reversed and the
cause remanded to the District Court for further proceedings.
- - L /
Chief Justice
We concur:
Justices
Mr. Justice Daniel J. Shea concurs and will file a specially
concurring opinion later.