dissenting.
I respectfully dissent.
Appellant was convicted of driving while intoxicated (DWI) and has presented to this court no less than fourteen grounds of error. The majority has not addressed a single complaint raised by appellant and instead has reversed the conviction on unassigned error. Specifically, the majority has held that once a suspect is in custody and has requested counsel after a Miranda warning is given, then all questions by police thereafter constitute impermissible custodial interrogation; this includes any request by the police that the accused submit to a breath or blood test to determine his blood-alcohol content as authorized by the Texas Implied Consent statute. Under these circumstances the majority opinion concludes that even if the accused consents to such a test, the results thereof are to be constitutionally excluded from his trial for DWI.
My reason for not joining the majority opinion is simple: I do not believe that one in appellant’s position has either a constitutional or statutory right to counsel on the question of deciding whether to consent to a chemical breath or blood-alcohol test. Furthermore, much of the “video” questioning of appellant occurred prior to the request for counsel and that particular questioning which occurred afterward produced no incriminating evidence against the appellant to be suppressed. In constitutional vernacular, there were no harmful *781“fruits” to suppress. In short, I disagree with the majority’s conclusions concerning the unassigned error in every respect. I would, therefore, review appellant’s assigned grounds of error only.
The majority opinion on unassigned error raises two separate issues as to appellant’s Fifth-Amendment rights: (1) whether the Fifth Amendment even extends to appellant’s consent to take an intoxilyzer test; and (2) whether the video tape should have been suppressed because of the continued questioning after appellant’s invocation of his right to counsel. I believe the majority opinion’s affirmative answer to these two questions reflects a misunderstanding of the developing case law concerning the right to counsel under the Fifth Amendment to the Constitution as enunciated by the United States Supreme Court and applied to Texas law by the Court of Criminal Appeals.
The U.S. Supreme Court has held that “in the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. ” South Dakota v. Neville, 459 U.S. 553, 564 (1983). See also Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Our Court of Criminal Appeals has held that police officers are not required to give a suspect Miranda warnings prior to asking him to provide a blood sample. Rodriguez v. State, 631 S.W.2d 515, 517 (Tex.Crim.App.1982). The pivotal inquiry, however, is whether the giving of the Miranda warning operates to extend the Fifth-Amendment counsel privilege to the appellant’s breath test decision. I think not.
In McCambridge v. State, 712 S.W.2d 499 (Tex.Crim.App.1986), the appellant made the following argument, which is somewhat similar to that found in the majority opinion:
“[Ajppellant argues that the right to counsel under Miranda, though not initially required, must be applied in the instant case because the police did inform appellant that he had a right to have counsel present during “questioning.” In appellant’s words “[i]t is one thing not to require the warnings be given by police because the chemical test does not equate to testimonial communication, but it is an entirely different matter where the warnings are given by the police, then invoked by the defendant and thereafter deliberately ignored by police.” (emphasis in original.)
In rather clear language, the Court of Criminal Appeals rejected McCambridge’s argument:1
... reading Edwards v. Arizona, supra, to forbid police from seeking a suspect’s breath sample, once the suspect has invoked his right to counsel under Miranda, would similarly divorce Miranda from its “only source of legitimacy.” Not only does the breath testing decision not involve custodial interrogation, it also does not involve the privilege against interrogation.
McCambridge, supra.
Another reason compels me to find that the decision to consent or refuse to take a blood test is not covered by the Fifth *782Amendment. I disagree with the assertion in the majority’s opinion that there is no implied consent involved in the Texas statute concerning the taking of breath and blood alcohol tests. I agree with the strong line of cases interpreting the DWI statute, ours or similar enactments in other states, as creating an implied consent to the test. Indeed, the Texas statute makes reference in both its title and body to implied consent. Tex.Rev.Civ.Stat.Ann. art. 6701¿-5 (Vernon Supp.1986). Clearly, when one operates a motor vehicle upon the public highways of this State he shall be subject to the provisions of this Act, and shall be “deemed to have given consent to submit to a breath or blood test to determine the alcohol concentration in his body.” The statute does allow, for practical reasons concerning physical coercion, that one may statutorily refuse to take the breath or blood tests. However, refusal to consent will subject the suspect to the penalty of having his driver’s license suspended, and that of having such refusal admitted into evidence against him at a subsequent trial for DWI. For a thoughtful and exhaustive analysis in this regard, see the Court of Appeals decision in McCambridge v. State, 698 S.W.2d 390 at 396-97 (Cohen, J., concurring).
In summary, there is a penalty-laden, statutorily-based option to refuse a breath or blood-alcohol test, but there is no protected constitutional right to do so. It follows that there is no right to the assistance of counsel in the making of that decision. I find that the trial court did not err in refusing to suppress the results of the blood test to which appellant consented after receiving specific statutory warnings pursuant to Article 67011-5 Sec. 2(b) concerning the effect of such refusal. Accordingly, it is necessary to determine the second issue as to whether the trial court erred in similarly not suppressing the video tape.
As pointed out in the majority opinion, all questioning did not cease once appellant invoked his right to counsel. My review of the video tape reveals (1) that much of the video occurred before this request for counsel was made, and (2) that the subsequent questioning, even if considered custodial interrogation within the meaning of Miranda, resulted in no incriminating responses by appellant. Therefore, I fail to see what harmful testimony the trial court should have suppressed. Constitutionally speaking, the error, if any, was harmless. There were no meaningful “poisonous-tree” fruits to suppress.
Finally, there is some language in the majority’s opinion concerning appellant’s Sixth-Amendment right to counsel. Because many other courts have carefully addressed the right to counsel as it concerns one in appellant’s position, I find it unnecessary to repeat the same here. Suffice it to say, that because no formal charges were initiated against appellant at the time he requested an attorney, the Sixth-Amendment right to counsel did not attach. See, e.g., Moran v. Burbine, — U.S. -, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986); Maine v. Moulton, — U.S. -, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); McCambridge v. State, supra; Forte v. State, 707 S.W.2d 89 (Tex.Crim.App.1986).
Finding no violation of appellant’s Fifth-Amendment rights, I dissent from the majority’s opinion grounded on unassigned error, and would review appellant’s assigned errors.
. In McCambridge the trial court had suppressed the audio portion of the videotape, finding that the police officers had continued to question appellant after he invoked his right to counsel. The video was not included in the appellate record and the Court of Criminal Appeals noted that there was nothing to indicate the officers continued questioning constituted an interrogation within the meaning of Miranda or that the questions resulted in any incriminating response by appellant.
The majority has referred to footnote 18 in McCambridge which makes the statement that the court is limiting its holding to the facts and does not intend to imply that a remedy will never be available to a suspect who is confused when faced with Miranda warnings and a breath-testing decision without the benefit of counsel. A review of the video clearly shows that appellant was not confused by the Miranda warning as he repeatedly stated that he understood his rights. Therefore, I think the majority’s reliance on this footnote is misplaced and contravenes the many case holdings cited in McCambridge. Finally, I do not think this case is sufficiently dissimilar to McCambridge to warrant a different result.