McCambridge v. State

712 S.W.2d 499, 1986 Tex. Crim. App. LEXIS 1275

• Court: Court of Criminal Appeals of Texas
• Decided: May 14, 1986
• Docket: 1086-85
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted on a plea of guilty of the offense of driving while intoxicated. Punishment was assessed at six months confinement in jail and a $200.00 fine, probated for two years. The First Court of Appeals affirmed the conviction, holding that the trial court properly denied appellant’s motion to suppress the results of his intoxilyzer test. McCambridge v. State, 698 S.W.2d 390, (Tex.App. — Houston [1st] 1985). We granted appellant’s petition for discretionary review to decide 1) whether appellant had a right to counsel¹ before deciding to provide a breath sample for an intoxilyzer test, and 2) whether the State’s use of appellant’s breath sample, obtained after appellant responded to Miranda warnings with a request for counsel, violated the prophylactic safeguards established by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).² We remand.

Appellant was arrested on May 21, 1984, at approximately 11 p.m., by two Houston police officers for suspicion of driving while intoxicated. At the scene of his arrest, appellant requested an attorney. The arresting officers told appellant he would have to wait until he was downtown before receiving the aid of an attorney. Appellant was then transported to the Houston Police Department and taken to a videotaping room. See V.A.C.S., art. 67011-1 note, (Supp.1986). Videotaping began, and appellant was given Miranda warnings in the presence of three police officers. Appellant responded by stating that he wanted to consult with his attorney. Appellant was given an opportunity to contact an attorney by telephone. However, his attempt was unsuccessful.³

After appellant completed his phone call, the police officers resumed questioning appellant. Appellant again requested that an attorney be present. The officers granted appellant another opportunity to contact an attorney. Appellant attempted to re-call his wife, but the line was busy. An officer then resumed questioning appellant. Appellant again asked for an attorney, but the questioning continued. Appellant requested counsel seven more times, but questioning continued.⁴

Upon appellant’s eleventh request for an attorney, the officers abruptly concluded the videotaping of appellant and took appellant outside the videotaping room and into the hallway. While in the hallway, appellant was asked repeatedly whether he would provide a breath sample to determine alcohol concentration. See V.A.C.S., art. 6701Z-5, § 1 (Supp.1986). Appellant continued to request an attorney. After five to ten minutes, appellant agreed to provide a breath sample for use in an intox-ilyzer test.

Prior to taking a breath sample from appellant, an intoxilyzer operator advised appellant of the required statutory breath test warnings.⁵ Appellant again agreed to provide a breath sample, stating to the intoxilyzer operator that “he would then take the test because of the [concern over losing his] driver’s license.” ⁶ On May 22, 1984, at 2:24 a.m., a complaint and an information were filed against appellant, charging him with driving while intoxicated. See Arts. 2.04 & 2.05, V.A.C.C.P.

Before trial, appellant sought to suppress the videotape of his arrest and the results of the breath test. At the conclusion of the hearing on appellant’s motion to suppress, the trial court suppressed the audio portion of the videotape. The trial court overruled appellant’s motion to suppress as it applied to the remainder of the videotape and the results of the intoxilyzer test. Appellant then pled guilty with the agreement that he could appeal the trial court’s order.⁷ See Art. 44.02, V.A.C.C.P.; Morgan v. State, 688 S.W.2d 504 (Tex.Cr.App.1985).

I. Right to Counsel

Relying upon three Supreme Court cases,⁸ the Court of Appeals overruled appellant’s first ground of error, in which appellant argued that he had a right to counsel before deciding whether to provide a breath sample for an intoxilyzer test. McCambridge, supra, at 394.⁹ Although the Court of Appeals did not explicitly state that it was only addressing a particular federal constitutional provision, given the court’s reliance on the above Supreme Court opinions, it is clear that the decision to affirm was grounded upon appellant’s argument that he had a Sixth Amendment right to counsel.¹⁰ Appellant’s remaining federal and state constitutional arguments claiming a right to counsel were left unaddressed.

This Court recently held that the right to counsel under the Sixth Amendment attaches only upon or after formal initiation of judicial proceedings. Forte v. State, 707 S.W.2d 89, 91 (Tex.Cr.App.1986). Therefore, our determination in the instant case whether the Court of Appeals correctly decided that appellant was not denied his Sixth Amendment right to counsel only depends upon when formal adversary proceedings were initiated. Id.11

Appellant was arrested at approximately 11 p.m. on May 21,1984. Appellant then provided the police with a breath sample prior to a complaint and an information being filed at 2:42 a.m. on May 22, 1984, thus charging appellant with driving while intoxicated. Appellant’s Sixth Amendment right to counsel did not attach until the complaint and information were filed. See Forte, supra, at 92. Therefore, we find no denial of appellant’s Sixth Amendment right to counsel.

As we noted earlier, appellant also argued to the Court of Appeals that his right to counsel was denied under the “right to counsel” provision of the state constitution, Tex. Const, art. I, § 10, the Due Process Clause, U.S. Const, amend. XIV, and the Due Course of Law Clause, Tex. Const, art. I, § 19.¹² In his supplemental brief, appellant requests that we decide the instant case on the basis of independent state constitutional authority. We decline to do so at this point because the Court of Appeals affirmed appellant’s conviction only on the basis that his Sixth Amendment right to counsel was not denied. Therefore, in order to give the Court of Appeals an opportunity to address all of appellant’s constitutional arguments before this Court decides such an important question of state law, we will remand the case for consideration of appellant's remaining state and federal constitutional arguments in his first ground of error. See generally Eisenhauer v. State, 678 S.W.2d 947 (Tex.Cr.App.1984). However, we must first determine whether appellant’s remaining ground of review, based on a Miranda violation, has merit.

II. Violation of Miranda and Edwards.

The Court of Appeals overruled appellant’s third ground of error, which claimed that police officers violated the prophylactic safeguards of Miranda v. Arizona, supra, and Edwards v. Arizona, supra, by continuing to ask appellant for a breath sample despite his request for counsel. In holding that no violation had occurred, the Court of Appeals relied upon, inter alia, Schmerber v. California, supra, and South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

In Schmerber v. California, supra, a blood sample was extracted from a defendant by a physician without the defendant’s consent. The defendant claimed that his Fifth Amendment privilege against self-incrimination was violated.¹³ The Supreme Court first noted that, generally, “the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but ... compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Id., 384 U.S. at 764, 86 S.Ct. at 1832. The Court then held that neither the extraction of blood nor the subsequent chemical analysis of the blood for alcohol concentration required appellant to testimonially incriminate himself in violation of the Fifth Amendment. 384 U.S. at 765, 86 S.Ct. at 1833. In its holding, the Court acknowledged that the defendant was compelled to provide a sample of his blood. Id. However, the Court held that the Fifth Amendment privilege against self-incrimination does not protect all types of compulsion — only compulsion directed at producing evidence from a defendant’s own mouth. Id. That Court did not address whether the Miranda warning requirement was affected by the absence of a Fifth Amendment privilege against self-incrimination.

This Court has subsequently analogized the extraction of blood in Schmerber v. California, supra, to the collection of a breath sample. Rodriguez v. State, 631 S.W.2d 515, 517 (Tex.Cr.App.1982). In doing so, we held that providing a breath sample for chemical analysis of alcohol concentration is not a testimonial communication protected by the privilege against self-incrimination under the Fifth Amendment. Id. In the absence of any need to protect a defendant’s privilege against self-incrimination, we further held that police officers are not required to give a suspect Miranda warnings prior to asking him to provide a breath sample. Id.

In South Dakota v. Neville, supra, a defendant’s refusal to participate in a blood-alcohol test was used as substantive evidence against him at his trial. The defendant argued, inter alia, that the use of the refusal against him at his trial violated his Fifth Amendment privilege against self-incrimination. The Supreme Court avoided the notion that Neville’s refusal was a physical act rather than a testimonial act, id., 459 U.S. at 561-62,103 S.Ct. at 921-22, relying instead on the freedom of the defendant to refuse the test,¹⁴ and held that his choice of refusal was “not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.” Id., 459 U.S. at 564, 103 S.Ct. at 923.

In South Dakota v. Neville, the Court also decided whether Miranda protections extended to a defendant’s decision whether to provide a blood sample for chemical analysis. The Court stated:

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. As we stated in Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980), police words or actions “normally attendant to arrest and custody” do not constitute interrogation. The police inquiry here is highly regulated by state law, and is presented in virtually the same words to all suspects.[¹⁵] It is similar to a police request to submit to fingerprinting or photography. Respondent’s choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection. See generally Arenella, Schmerber and the Privilege Against Self-Incrimination: A Reappraisal, 20 Am.Crim.L.Rev. 31, 56-58 (1982).

South Dakota v. Neville, 459 U.S., at 564, n. 15, 103 S.Ct., at 923, n. 15. Thus, a defendant, when faced with a decision whether to provide a breath or blood sample for chemical analysis of alcohol concentration, see V.A.C.S., art. 670H-5, § 1, may not avoid making a decision by invoking the protection of the Fifth Amendment privilege against self-incrimination or the prophylactic safeguards of Miranda.16

Appellant, in his petition for discretionary review, acknowledges that Miranda warnings are not required before police may ask a suspect to provide a breath sample. In fact, appellant concedes that he never intended to argue to the Court of Appeals that Miranda warnings were required. Instead, appellant 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 to not 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 police, then invoked by a defendant and thereafter deliberately ignored by police” (emphasis supplied by appellant). We disagree.

The Supreme Court recently reviewed the basis for its decision in Miranda v. Arizona:

In Miranda v. Arizona, the Court recognized that custodial interrogations, by their very nature, generate “compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” 384 U.S., at 467 [86 S.Ct. at 1624]. To combat this inherent compulsion, and thereby protect the Fifth Amendment privilege against self incrimination, Miranda imposed on the police an obligation to follow certain procedures in their dealing with the accused. In particular, prior to the initiation of questioning, they must fully apprise the suspect of the state’s intention to use his statements to secure a conviction, and must inform him of his rights to remain silent and to “have counsel present ... if [he] so desires.” Id., at 468-470 [86 S.Ct. at 1624-1626]. Beyond this duty to inform, Miranda requires that the police respect the accused’s decision to exercise the rights outlined in the warnings. “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, [or if he] states that he wants an attorney, the interrogation must cease.” Miranda, 384 U.S., at 473-474 [86 S.Ct. at 1627]. See also Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

Moran v. Burbine, — U.S.-,-, 106 S.Ct. 1135, 1140-1141, 89 L.Ed.2d 410 (1986).

The Supreme Court also recently reviewed the basis for its decision in Edwards v. Arizona:

In Edwards v. Arizona, 451 U.S. 477 [101 S.Ct. 1880, 68 L.Ed.2d 378] (1981), we held that an accused person in custody who has “expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id., at 484-485 [101 S.Ct. at 1884-1885]. In Solem v. Stumes, 465 U.S. 638 [104 S.Ct. 1338, 79 L.Ed.2d 579] (1984), we reiterated that “Edwards established a bright-line rule to safeguard pre-exist-ing rights,” id., at 646 [104 S.Ct. at 1343][;] “once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him.” Id., at 641 [104 S.Ct. at 1340].

Michigan v. Jackson, — U.S. -, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986).

In summarizing the rationales of Miranda v. Arizona, supra, and Edwards v. Arizona, supra, the Supreme Court has continued to emphasize that Miranda protections are aimed at dissipating the inherently coercive atmosphere associated with custodial interrogations. Miranda warnings inform a suspect of the procedural tools available to him in the face of coercive interrogation. One of those tools is the right to request a lawyer, thus allowing a defendant to end the interrogation or guarantee the assistance of a third party. Therefore, “[t]he Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation.” Edwards v. Arizona, 451 U.S., at 486, 101 S.Ct., at 1885.

In the instant case, police officers complied with the requirements of Miranda v. Arizona, supra, and Edwards v. Arizona, supra. The trial court did suppress the audio portion of the videotape, finding that the police officers continued to “question” appellant after he invoked his right to counsel. However, there is nothing in the record to indicate that the continued questioning of appellant constituted “interrogation” within the meaning of Miranda or that the questions resulted in any incriminating response by appellant. The only evidence of the content of that questioning came from appellant during the hearing on his motion to suppress. Appellant testified, “They continued to question me.” Although the videotape of police officers questioning appellant might provide more revealing evidence of the nature of the questioning, it has not been included in the record on appeal. We are bound by the record on appeal as presented to us. Evans v. State, 622 S.W.2d 866 (Tex.Cr.App.1981). Given the record presented to this Court, appellant has not shown that he was ever interrogated within the meaning of Miranda. Questioning “normally attendant to arrest and custody” is not interrogation. Rhode Island v. Innis, supra. Therefore, there is no evidence in the record to support the conclusion that the police officers ignored appellant’s right to have counsel present for custodial interrogation.

We acknowledge that the legal distinction between questioning that amounts to interrogation and questioning that is “normally attendant to arrest and custody” may not always be readily apparent. See Rhode Island v. Innis, supra; Paez v. State, 681 S.W.2d 34, 36 (Tex.Cr.App.1984). In an arrest for driving while intoxicated, police may create some additional confusion by giving Miranda warnings without informing a defendant that those warnings do not apply to his decision whether to provide a breath sample. However, given the instant facts, the remedy for such confusion cannot be found in Miranda or Edwards.17

Appellant argues that, even if Miranda warnings do not presently provide protection under the instant circumstances, the prophylactic safeguards of Miranda and Edwards should be extended to prevent a suspect’s confusion in a breath test situation. Specifically, appellant argues that Edwards v. Arizona, supra, should be extended to require that police cease questioning a suspect on any subject, whether such questioning constitutes “technical” interrogation or not, once the suspect has requested counsel following Miranda warnings. We disagree.

The Supreme Court was recently asked to extend Miranda protections to require police to inform a suspect of an attorney’s efforts to reach him during custodial interrogation. The Court, in rejecting an extension, struck at the very heart of appellant’s instant contention:

... [Rjeading Miranda to forbid police deception of an attorney “would cut [the decision] completely loose from its own explicitly stated rationale.” Beckwith v. United States, 425 U.S. 341, 345 [96 S.Ct. 1612, 1615, 48 L.Ed.2d 1] (1976). As is now well established, “[t]he ... Miranda warnings are ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the [suspect’s] right against compulsory self-incrimination [is] protected.’ ” New York v. Quarles, 467 U.S. 649, 654 [104 S.Ct. 2626, 2631, 81 L.Ed.2d 550] (1984), quoting Michigan v. Tucker, 417 U.S. 433, 444 [94 S.Ct. 2357, 2364, 41 L.Ed.2d 182] (1974). Their objective is not to mold police conduct for its own sake. Nothing in the Constitution vests in us the authority to mandate a code of behavior for state officials wholly unconnected to any federal right or privilege. The purpose of the Miranda warnings instead is to dissipate the compulsion inherent in custodial interrogation and, in doing so, guard against abridgement of the suspect’s Fifth Amendment rights. Clearly, a rule that focuses on how the police treat an attorney — conduct that has no relevance at all to the degree of compulsion experienced by the defendant during interrogation — would ignore both Miranda’s mission and its only source of legitimacy.

Moran v. Burbine, — U.S., at-, 106 S.Ct. at 1143.

In the instant case, 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 self-incrimination. A rule that focuses on preventing collection of a breath sample, merely because a defendant has been informed of his right to have counsel present if he is interrogated, would severely restrict police officers in the pursuit of lawfully collecting evidence of intoxication and, more significantly, do nothing to further protect the privilege against self-incrimination. Therefore, we find that appellant, under the instant facts, has no remedy under Miranda v. Arizona, supra, or Edwards v. Arizona, supra.¹⁸

The judgment of the Court of Appeals is vacated and the cause is remanded to the Court of Appeals for further consideration of appellant’s ground of error claiming a right to counsel under the Fourteenth Amendment to the United States Constitution and Article I, §§ 10 and 19 of the Texas Constitution.

ONION, P.J., and CLINTON, J., concur in result.

1 . Mirroring his first ground of error before the Court of Appeals, appellant relies upon the following sources for his right to counsel: 1) the right to counsel clauses of federal and state constitutions, U.S. Const, amend VI, Tex.Const. art. I, § 10, 2) the Due Process Clause, U.S. Const, amend XIV, and 3) the Due Course of Law Clause, Tex.Const. art. I, § 19.

2 . Appellant, in a footnote to his brief, also argues in passing that Texas statutory law codifies Miranda warning requirements and provides greater protection than Miranda v. Arizona, supra. Appellant cites Articles 1.02, 1.05, & 15.17, V.A.C.C.P. See also Art. 38.22, V.A.C.C.P. However, we did not grant review on the basis of statutory Miranda warning requirements. Our grant of review was strictly limited to the application of Miranda v. Arizona, supra, and Edwards v. Arizona, supra, to the instant case.

3 .Houston police officers were present throughout appellant’s telephone conversation. Appellant contacted his wife and named two attorneys for her to contact, hoping that one of the attorneys could refer her to a local criminal attorney in Houston who could be retained by appellant. However, appellant was not allowed to provide his wife with a callback number.

4 . During the hearing on his motion to suppress, appellant testified repeatedly, "They continued to question me.” Nothing in the record indicates the content of that questioning. The record does not include the videotape of appellant being questioned.

5 . Article 6701/-5, § 2(b), supra, in pertinent part, provides:

Before requesting a person to give a specimen, the officer shall inform the person orally and in writing that if the person refuses to give the specimen, that refusal may be admissible in a subsequent prosecution, and that the person’s license, permit, or privilege to operate a motor vehicle will be automatically suspended for 90 days after the date of adjournment of the hearing provided for in Subsection (f) of this section, whether or not the person is subsequently prosecuted as a result of the arrest.... The officer shall inform the person that the person has a right to a hearing on suspension ... if, not later than the 20th day after the date on which the notice of suspension ... is received, the department receives a written demand that the hearing be held.

6 . Appellant, in his brief, argues that he eventually agreed to provide a breath sample only because of continuous pressure applied by police officers. The trial court denied appellant’s motion to suppress the test on that basis. The Court of Appeals overruled appellant’s ground of error on the voluntariness of his consent. McCambridge, supra, at 394-95. We denied review on that same issue.

7 . Although the record does not reflect what evidence could have been used to convict appellant, appellant agreed to plead guilty only if the results of the intoxilyzer test were not suppressed. Presumably, the result of the test was sufficient to convict appellant of driving while intoxicated. See V.A.C.S., art. 6701/-1(a)(2)(B) (Supp.1986). Nothing in the record indicates that the videotape contained evidence of appellant’s guilt. See n. 4, ante, at 2.

8 . Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

9 . In its opinion, the Court of Appeals discussed and overruled grounds of error one and three together, id., despite the distinctly separate constitutional theories argued in each ground of error. See grounds of review one and two, respectively, ante, at 500 & n. 1. Although such a consolidated discussion makes it difficult to determine the exact reason for affirmance, the opinion is sufficiently clear for this Court to rely upon.

In the future, for issues relying upon disjunctive federal and state authority, appellate courts should be careful to address each ground of error separately and clearly indicate the reason for the outcome. This practice has become even more necessary in light of the recent focus upon state, rather than federal, constitutional authority. See S. Abrahamson, Criminal Law and State Constitutions: The Emergence of State Constitutional Law, 63 Tex.L.Rev. 1141 (1985); Comment, Individual Rights and State Constitutional Interpretations: Putting First Things First, 37 Baylor L.Rev. 493 (1985). See also Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201, 1214 (1983) (Supreme Court will undertake review of state court decision unless "state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent [state] grounds — ”).

In his brief before the Court of Appeals and this Court, appellant provided several constitutional bases for each ground of error and review. Attorneys, when briefing constitutional questions, should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground. If sufficient distinction between state and federal constitutional grounds is not provided by counsel, this Court may overrule the ground as multifarious. Art. 40.09(9), V.A. C.C.P.; Brooks v. State, 642 S.W.2d 791, 793 (Tex.Cr.App.1982) ("By combining more than one contention in a single ground an appellant risks rejection on the ground for presenting nothing for review.") But see art. 44.33, r. 306(d), V.A.C.C.P., and cf. State v. Jewett, 500 A.2d 233 (Vt.1985) (appellate courts may require supplemental briefs if state constitutional issue not sufficiently developed).

10 ."In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S.Const. amend VI.

11 . The Court of Appeals held that appellant's decision to provide a breath sample did not constitute a "critical” stage, thus not triggering a right to counsel. McCambridge, supra, at 394. We disagree with that holding insofar as it implies that a "critical" stage may arise prior to initiation of formal adversary proceedings. See Forte, supra, at 92 ("critical” stage analysis only arises after formal initiation of adversary proceedings ), and cases cited therein.

(All emphasis is supplied by the author of this opinion unless otherwise indicated.)

12 .In an amicus brief to this Court, the National Association of Criminal Defense Attorneys also argues that state and federal law give a defendant the right to counsel "at a time no later than when the arresting officers requests the DWI suspect to submit to a chemical test of his blood, breath, or urine." In a second amicus brief to this Court, the Texas Trial Lawyers Association argues that due process requires that a defendant be given access to counsel prior to sobriety testing.

13 . “No person ... shall be compelled in any criminal case to be a witness against him-self_” U.S. Const, amend V.

14 . Texas law gives a suspect a similar choice. V.A.C.S., arts. 6701/-S, §§ 1-2 (Supp.1986). See Forte, supra, at 91, n. 2.

15 . Texas law requires that police give specific warnings. V.A.C.S., art. 6701/-5, § 2(b)-(e).

16 . We do not imply that the breath testing decision is free from all constitutional or statutory protection.

"... [D]ue process concerns could be involved if the police initiated physical violence while administering the test, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force.” South Dakota v. Neville, 459 U.S., at 559, n. 9, 103 S.Ct., at 920, n. 9, citing Schmerber v. California, 384 U.S. 757, 761, n. 4, 86 S.Ct. 1826, 1830, n. 4, 16 L.Ed.2d 908, 914, n. 4 (1966). However, appellant has not argued that his submission to an intoxilyzer test raised due process concerns of this nature. Nor have we accepted review on that issue.

State law also requires that a suspect’s refusal to provide a breath sample be strictly honored. V.A.C.S., art. 6701/-5, § 2(a), (Supp.1986); Turpin v. State, 606 S.W.2d 907, 913-914 (Tex.Cr.App.1980). However, the issue of the voluntariness of appellant’s consent also is not before us in the instant case. See n. 7, ante, at 501.

17 . A different question might be presented if the police officer, in ignoring appellant’s request for counsel under Miranda, had mixed his request for a breath sample with questions that amounted to interrogation. In the absence of such a probable Miranda violation, we need not decide under what circumstances a suspect’s consent to provide a breath sample is the fruit of an illegal interrogation.

18 . In finding appellant has no remedy under Miranda v. Arizona, supra, or Edwards v. Arizona, supra, we do not 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 requested counsel. We are simply limiting our decision in the instant case to the issues and remedy requested by appellant in his petition for review.

The legislature is free to enlarge upon the statutory warnings required at present, thus requiring a police officer to inform a suspect that Miranda warnings do not apply to the breath testing decision. See art. 6701/-5, § 2(b), supra. However, we believe it would be inappropriate for this Court to make such an expansion of statutory warnings absent legislative authority.