DOBBINS, APPELLANT, v. OHIO BUREAU OF MOTOR VEHICLES, APPELLEE.
No. 95-775
SUPREME COURT OF OHIO
June 5, 1996
75 Ohio St.3d 533 | 1996-Ohio-454
APPEAL from the Court of Appeals for Summit County, No. 16514. Submitted March 20, 1996.
- The audiotaping of a telephone conversation between an arrestee and her attorney violates
R.C. 2935.20 , since it does not allow the arrestee to engage in a private consultation with the attorney. - In the absence of any constitutional violations, when the police violate the statutory right to counsel contained in
R.C. 2935.20 , and the arrestee refuses to submit to the blood-alcohol content test until she effectively speaks with her attorney, the arrestee remains subject to license suspension. By refusing to submit to the test contingent on receiving the advice of counsel, the arrestee has, for the purposes of the implied consent statute,R.C. 4511.191 , “refused” to take the chemical alcohol test.
{¶ 1} On May 19, 1993, respondent-appellee, Ohio Bureau of Motor Vehicles, notified petitioner-appellant, Peggy L. Dobbins, that her driver‘s license would be suspended for a year pursuant to
“1. Appellant was arrested for driving under the influence of alcohol on March 13, 1993;
“2. Upon being brought to the Akron Police Department breath-testing room, Appellant requested the opportunity to consult with her attorney;
“3. One of two officers present informed Appellant that she would be video and audio taped during her conversation with her attorney, and then allowed Appellant to make her phone call;
“4. During the phone conversation with her attorney, the officers stayed in the room, and Appellant was videotaped and her statements to her attorney were audio taped;
“5. Because of these circumstances, Appellant felt unable to communicate fully and freely with her attorney regarding the facts and circumstances of her arrest and prior activities that evening;
“6. After the conversation with her attorney, Appellant was asked to submit to a breath test, which she refused.”
{¶ 2} The case was submitted to a referee, who found that appellee had properly suspended appellant‘s license and denied appellant‘s appeal. The municipal court overruled appellant‘s objections and adopted the referee‘s report and recommendation. The Summit County Court of Appeals affirmed the decision of the municipal court.
{¶ 3} The cause is now before this court pursuant to the allowance of a discretionary appeal.
Nicholas Swyrydenko, for appellant.
Douglas J. Powley, Chief City Prosecutor, and Thomas M. DiCaudo, Chief Assistant City Prosecutor, for appellee.
ALICE ROBIE RESNICK, J.
{¶ 4} The issues presented by this case are (1) whether police violate an arrestee‘s statutory right to effective communication with legal counsel contained in
I
{¶ 5}
“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 who 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.”
{¶ 6} In two prior cases this court has considered whether police violated
{¶ 7} The facts of this case are distinguishable from both Royster and McNulty. In the case sub judice the police allowed appellant free access to the telephone and did not interrupt her consultation with her attorney. However, in addition to reasonable access to an attorney, the statute requires that the police allow the arrestee “to consult with [the attorney] privately.” (Emphasis added.) Audiotaping this consultation, as was done in the case at bar, entirely negates any chance of privacy the arrestee might achieve.1
{¶ 8} Appellee essentially contends that observation of a person charged with driving while under the influence of alcohol is necessary to ensure that the
{¶ 9} Ohio law, through this statute, recognizes that a truly private consultation with the accused‘s criminal defense attorney is essential to a proper defense. The audiotaping of a telephone conversation between an arrestee and her attorney violates
II
{¶ 10} Having decided that the police in this case violated
{¶ 11} If a person under arrest for operating a vehicle while under the influence of alcohol has been advised of the consequences of refusal to take a chemical test for blood-alcohol content as required by
{¶ 12} Initially, we note that the right to counsel associated with the protection against self-incrimination contained in the Fifth Amendment to the United States Constitution, or as guaranteed by the Sixth Amendment, does not apply to the stage at which the officer requested the chemical test for alcohol content.
{¶ 13} In Schmerber v. California (1966), 384 U.S. 757, 765, 86 S.Ct. 1826, 1832-1833, 16 L.Ed.2d 908, 916-917, the United States Supreme Court held that because the results of a test of a defendant‘s body fluids are not testimony, the police do not violate the constitutional prohibition against self-incrimination contained in the Fifth Amendment by requesting a blood test upon arrest for driving while under the influence of alcohol. Thus, appellant had no Fifth Amendment right to consult with an attorney prior to deciding whether or not to submit to the test for blood-alcohol content. See McNulty, 42 Ohio St.2d at 344-345, 71 O.O.2d at 318-319, 328 N.E.2d at 801.
{¶ 14} The United States Supreme Court has also held that the Sixth Amendment right to counsel for criminal defense applies only to the “critical stages” of the criminal proceedings. United States v. Gouveia (1984), 467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146, 155; United States v. Ash (1973), 413 U.S. 300, 310-311, 93 S.Ct. 2568, 2574, 37 L.Ed.2d 619, 627; United States v. Wade (1967), 388 U.S. 218, 224, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149, 1156. In McNulty, we interpreted Wade to hold that a blood test is merely a step preparatory to the critical stage of the prosecution and thus the Sixth Amendment does not apply:
“In United States v. Wade, supra, at page 227 [87 S.Ct. at 1932, 18 L.Ed.2d at 1159-1158], 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.” (Emphasis sic.) McNulty, 42 Ohio St.2d at 344, 71 O.O.2d at 319, 328 N.E.2d at 801.
{¶ 15} This holding is further supported by the United States Supreme Court‘s dismissal of Nyflot v. Minnesota Commr. of Pub. Safety (1985), 474 U.S. 1027, 106 S.Ct. 586, 88 L.Ed.2d 567. In both Nyflot and the case at bar, the arrestees had been charged with driving under the influence of alcohol and had refused to submit to a test for blood-alcohol level until they had been able to consult with their attorneys. As the United States Court of Appeals for the Sixth Circuit stated:
“In Nyflot, the Supreme Court dismissed for want of a substantial federal question an appeal claiming that appellant had a sixth amendment right to counsel
with respect to the decision whether to consent to a blood-alcohol test. ‘[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction.’ Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199[205] (1977) (per curiam). See also Hopfmann v. Connolly, 471 U.S. 459, 460, 105 S.Ct. 2106, 2107, 85 L.Ed.2d 469[471] (1985) (per curiam) (dicta). These decisions constitute adjudications on the merits, Hicks v. Miranda, 422 U.S. 332, 344, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223[236] (1975), to the extent indicated in Mandel. “Petitioner‘s argument that the sixth amendment right to counsel attaches prior to taking an alcohol breath test was rejected by the Supreme Court on appeal in Nyflot. See Nyflot 474 U.S. at 1029, 106 S.Ct. at 587[, 88 L.Ed.2d at 569]. Nyflot, therefore controls our holding that petitioner was not denied her sixth amendment right to counsel in the instant case.” McVeigh v. Smith (C.A. 6, 1989), 872 F.2d 725, 727-728. See, also, Roberts v. Maine (C.A.1, 1995), 48 F.3d 1287, 1290-1291.
{¶ 16} Appellant also asserts that the police violated her due process right to counsel guaranteed by Ohio Constitution‘s Redress in Courts provision, Section 16, Article I, Ohio Constitution. Appellant cites Thomas v. Mills (1927), 117 Ohio St. 114, 157 N.E. 488, in support of this contention. Thomas, however, held that this provision guaranteed a criminal defendant a right to an attorney for criminal appeals. As we noted above, the suspension of a driver‘s license pursuant to
{¶ 17} Because appellant has no constitutional right to counsel under either the Fifth Amendment or the Sixth Amendment in this case, the sole question that remains is whether appellant‘s refusal to take the chemical alcohol test is a “true refusal” pursuant to
{¶ 18} As we stated in Cline v. Ohio Bur. of Motor Vehicles (1991), 61 Ohio St.3d 93, 99, 573 N.E.2d 77, 82, the Ohio General Assembly adopted the implied consent statute,
{¶ 19} We realize that the decision of whether or not to submit to a blood-alcohol content test is a difficult one to make and one that most people would prefer to make on the advice of an attorney. However, the consent mandated when a person chooses to drive on Ohio roadways is an entirely civil requirement and the criminal protections for individuals that the General Assembly created do not apply. Moreover, the license suspension is mandatory upon refusal to take the test. Whether the driver requests an attorney does not affect the requirement that the arrestee submit to the test for blood-alcohol content or accept the alternative of license suspension.
{¶ 20} Appellant contends that the courts must order the reinstatement of the driver‘s license when law enforcement officials violate
{¶ 21} This contention is based on matters outside the record of this case and, therefore, we will not consider them. The General Assembly provided a specific statutory punishment for violations of
{¶ 22} Therefore, we hold that, in the absence of any constitutional violations, when the police violate the statutory right to counsel contained in
{¶ 23} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY, COOK and STRATTON, JJ., concur.
PFEIFER, J., dissents.