McNulty v. Curry

328 N.E.2d 798, 42 Ohio St. 2d 341, 71 Ohio Op. 2d 317, 1975 Ohio LEXIS 497

• Court: Ohio Supreme Court
• Decided: May 28, 1975
• Docket: No. 74-630
• Status: Published

Opinions

William B. Brown, J.

Appellant basically contends that he was entitled to, and deprived of, the due process guarantees of the Sixth and' Fourteenth Amendments to the United States Constitution “in that he was unable to consult with counsel prior to making any decision on the test requested by the arresting police department.”

Paragraph two of the syllabus in State v. Starnes (1970), 21 Ohio St. 2d 38, reads:

“Section 4511.191(F), Revised Code, does not violate the due process clause of the Fourteenth Amendment to the United States Constitution by permitting suspension of a person’s driver’s license upon proof less than proof beyond a reasonable doubt that (1) a police officer had reasonable ground to believe the person had been driving a motor vehicle upon the public highways in this state while under the influence of alcohol (2) the person was placed under arrest (3) the person refused to submit to a chemical test upon request of the officer and (4) the person was advised of the consequences of his refusal. Proceedings under Section 4511.191(F), Revised Code, are civil and administrative in nature and are intended for the protection of the traveling public, and are independent of any criminal proceedings which may be instituted pursuant to other statutes or ordinances.” (Emphasis ours.)

The question presented is whether appellant “refused” to take the test. This court holds that appellant did so refuse by his refusal to take the test “until he got a hold of his attorney” or “until his attorney arrived.”

I

In Schmerber v. California (1966), 384 U. S. 757, police officers performed a blood-alcohol test on defendant Schmerber despite his refusal, on the advice of counsel, to consent to the test. Upon that basis, a denial of the right to counsel claim was asserted, but it was rejected by the court because Schmerber, having no right to refuse to take the test, was not denied legal advice as to his rights. The court said', at page 766: “* * * No issue of counsel’s ability to assist petitioner in respect of any rights he did possess is presented. * * *”

Lest we lose sight of our constitutional guarantees, the Sixth Amendment, in pertinent part, provides:

“In all criminal prosecutions, the accused shall enjoy the right # * * to have the assistance of counsel for his defense.”

Section 10, Article I of the Ohio Constitution provides:

“In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel * * #.”

The Fourteenth Amendment provides that no state shall “* * * deprive any person of life, liberty, or property, without due process of law # *

The Supreme Court, in recognition of modern criminal prosecution, has construed the Sixth Amendment provision to “apply to ‘critical’ stages of the proceedings. * * *” United States v. Wade (1967), 388 U. S. 218, 224.

In United States v. Wade, supra, at page 227, the court determined that lineups are “critical stages” of the proceedings as opposed to mere “preparatory steps, such as systematized or scientific analyzing of the accused’s * * * blood sample.” (Emphasis ours.) Inasmuch as the submission to a blood test necessarily precedes the blood’s analysis, such stage is merely preparatory to a “preparatory step” and, thus, beyond the ambit of Sixth Amendment protection.

Under the Ohio implied-consent statute, B. C. 4511.191, a person accused of driving while intoxicated has no constitutional right to refuse to take a blood-alcohol test. (Westerville v. Cunningham [1968], 15 Ohio St. 2d 121, paragraph two of the syllabus.) That statute is constitutional, and proceedings thereunder are not a criminal prosecution,¹ but are civil and administrative only. Hoban v. Rice (1971), 25 Ohio St. 2d 111, paragraph one of the syllabus; State v. Starnes, supra (21 Ohio St. 2d 38, paragraph two of the syllabus).

In light of the foregoing, it is the judgment of this court that the constitutional right to counsel has no application to this case, because the decision to withhold or give consent to take a test is not a “critical stage” of a “crimtinal prosecution.”

n

This court further holds that the pre-suspension court hearing, provided by B. C. 4511.191, is sufficient to pass muster under the due process clause. Bell v. Burson (1971), 402 U. S. 535.

It is well settled that a motorist’s refusal to submit to an intoxication test, under an implied-consent statute, is an adequate basis for revocation of his driver’s license. 60 Corpus Juris Secundum 852, Motor Vehicles, Section 164.-16; 7 American Jurisprudence 2d, 678, Automobiles and Highway Traffic, Section 115.

However, appellant asserts, in effect, that he gave a qualified refusal which was reasonable and legally justified because he merely wanted to postpone the decision until he could confer with his lawyer. That assertion has been before the courts of other states, and the consistent holding thereon is that implied-consent statutes do not sanction a qualified or conditional refusal based upon counsel being present or consulted prior to a decision to take the test.²

Ill

Although not raised by the parties, we next consider the applicability of Ohio’s statutory right to counsel contained in R. 0. 2935.14 and 2935.20.³

B. C. 2935.14 does not apply because appellant was not arrested for a felony and there is no evidence that he was unable to make bail. However, the mandatory provisions thereof were fully complied with by the attending police officers because this record clearly shows that appellant was “* * * speedily permitted facilities to communicate with an attorney at law of his own choice, or to communicate with at least one * * * person for the purpose of obtaining counsel * * Cf. Toledo v. Dietz (1965), 3 Ohio St. 2d 30, paragraph two of the syllabus.

B. C. 2935.20 clearly applies to this case, but, here again, there is no want of compliance on the part of the arresting officers. Evidence of record indicates that appellant was given practically free access to a telephone; that he was not restricted on the number of calls made; that upon reaching his friend Short, he spoke with him for over 10 minutes, and that Short eventually dispatched appellant’s lawyer to his aid; and that at no time and in no way did the police officers attempt to interfere or abbreviate appellant’s consultation with his attorney when he finally arrived.

Inasmuch as B. C. 2935.14 and 2935.20 “provide a right beyond those guaranteed by the federal Constitution” (State v. Jones [1974], 37 Ohio St. 2d 21, 24, fn. 1), and since they were meticulously followed in this case, we find no error, and hold that appellant “refused” to take the test, where he continued to withhold his consent after the police officers had complied with B. C. 2935.14 and 2935.20.

This court is cognizant of the difficulties and complexities of modern traffic law enforcement and does not wish to deter or discourage good faith police procedures which reasonably assure that traffic violators will be fairly dealt with. To conclude that a refusal can not occur until an actual consultation with chosen counsel is secured would emasculate the implied-consent law. Most arrests for O. M. V. I. are made late at night, and many are made in remote or rural areas, with counsel not easily available.

Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

O’Neill, C. J., Herbert, Celebrezze and P. Brown, JJ., concur. Corrigan and Stern, JJ., dissent.

1 See authorities cited in State v. Starnes (1970), 21 Ohio St. 2d 38, 44; 60 Corpus Juris Secundum 820, Motor Vehicles, Section 164.1; David v. Strelecki (1968), 51 N. J. 563, 242 A. 2d 371, certiorari denied, 393 U. S. 933; Matter of Barnes v. Tofany (1970), 27 N. Y. 2d 74, 261 N. E. 2d 617.

2 Rust v. Dept. of Motor Vehicles (1968), 267 Cal. App. 2d 545, 546, 73 Cal. Rptr. 366 (“A suspected drunk driver has refused to take the blood alcohol test when he conditions his consent on having counsel present; he is not entitled to the advice of counsel in connection ■with the test.”); Ent v. Dept. of Motor Vehicles (1968), 265 Cal. App. 2d 936, 71 Cal. Rptr. 726; Finley v. Orr (1968), 262 Cal. App. 2d 656, 69 Cal. Rptr. 137; Mills v. Bridges (1970), 93 Idaho 679, 682, 471 P. 2d 66; Campbell v. Superior Court (1971), 106 Ariz. 542, 479 P. 2d 685; Blow v. Commr. of Motor Vehicles (1969), 83 S. Dak. 628, 633, 164 N. W. 2d 351; Matter of Finocchairio v. Kelly (1962), 11 N. Y. 2d 58, 181 N. E. 2d 427, certiorari denied, 370 U. S. 912; David v. Strelecki, supra, fn. 1. Contra, Troy v. Curry (1973), 36 Ohio Misc. 144; Narten v. Curry (1972), 33 Ohio Misc. 94.

R. C. 2935.14 reads:

3 “If the person arrested' is unable to offer sufficient bail or, if the offense charged be a felony, he shall, prior to being confined or removed from the county of arrest, as the case may be, be speedily permitted facilities to communicate with an attorney at law of his own choice, or to communicate with at least one relative or other person for the purpose of obtaining counsel (or in cases of misdemeanors or ordinance violation for the purpose of arranging bail). He shall not thereafter be confined or removed from the county or from the situs of initial detention until such attorney has had reasonable opportunity to confer with him privately, or other person to arrange bail, under such security measures as may be necessary under the circumstances.

“Whoever, being a police officer in charge of a prisoner, or the custodian of any jail or place of confinement, violates this section shall be fined not less than one hundred nor more than five hundred dollars or imprisoned not more than thirty days, or both.”

R. C. 2935.20 reads:

“After the arrest, detention, or any other taking into custody of a person, with or without a warrant, such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state, or to communicate with any other person of his choice for the purpose of obtaining counsel. Such communication may be made by a reasonable number of telephone calls or in any other reasonable manner. Such person shall have a right to be visited immediately by any attorney at law so obtained wbo is entitled to practice in the courts of this state, and to consult with him privately. No officer or any other agent of this state shall prevent, attempt to prevent, or advise such person against the communication, visit, or consultation provided for by this section.

“Whoever violates this section shall be fined not less than twenty-five nor more than one hundred dollars or imprisoned not more than thirty days, or both.”