203 Conn. 97 | Conn. | 1987
The dispositive issue in these appeals is whether an accused, who is charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a, has a sixth amendment right to counsel when deciding whether to submit to a chemical test of the alcohol content in his blood. The defendant was arrested on two separate occasions and each time charged with violating General Statutes § 14-227a. In the first case, after a jury trial, he was convicted and a fine of $500 plus costs was imposed by the trial court, DeMayo, J. In the second case, the trial court, DeMayo, J., accepted the defendant’s conditional plea of nolo contendere under General Statutes § 54-94a,
The facts relevant to the issue raised in this appeal are as follows.
In the second case, after the defendant’s arrest, Sergeant Donald McNeil of the Wallingford police department advised the defendant of his rights under Miranda v. Arizona, supra, and another police officer informed him of his chemical test options under § 14-227b (a). The defendant stated that he wished to consult with Attorney McManus. At that point, McNeil attempted to telephone McManus for the defendant, apparently calling him at his office, rather than at his home. For whatever reason, the police were unable to contact McManus.
On the basis of these facts, the defendant asks this court to vacate his two convictions and order dismissal of the charges, claiming first, that he has a constitutional right to counsel when deciding whether to submit to a chemical alcohol test, and, second, that the Wallingford police officers interfered with this right. Because we find that the sixth amendment right to counsel does not extend to an accused’s decision whether to consent to a chemical test prior to the formal initiation of a criminal prosecution, we do not reach the defendant’s second claim of error.
II
The defendant, relying on Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972), argues
“The Sixth Amendment guarantees that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.’ ” United States v. Gouveia, 467 U.S. 180, 187, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984). This right attaches only “at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, supra, 689; State v. Falcon, 196 Conn. 557, 560-61, 494 A.2d 1190 (1985); State v. Vitale, 190 Conn. 219, 232, 460 A.2d 961 (1983); State v. Ledbetter, 185 Conn. 607, 609, 441 A.2d 595 (1981). The United States Supreme Court has indicated that the sixth amendment’s core purpose “is to assure that in any ‘criminal prosecutio[n],’ U.S. Const., Amdt. 6, the accused shall not be left to his own devices in facing the ‘ “prosecutorial forces of organized society.” ’ Maine v. Moulton, [474 U.S. 159, 170, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985)] (quoting Kirby v. Illinois, [supra, 689]). By its very terms, it becomes applicable only when the government’s role shifts from investigation to accusation. For it is only then that the assistance of one versed in the‘intricacies . . . of law,’ [Maine v. Moulton, supra], is needed to assure that the
We have consistently adopted the reasoning of the United States Supreme Court with respect to when the sixth amendment right to. counsel attaches in a criminal proceeding, finding that “[n]o right to counsel attaches until prosecution has commenced.” (Emphasis in original.) State v. Ferrell, 191 Conn. 37, 44 n.10, 463 A.2d 573 (1983); see, e.g., State v. Falcon, supra (neither the issuance of an arrest warrant nor the initiation of extradition proceedings against the defendant constitutes the commencement of adversarial proceedings for purposes of the sixth amendment right to counsel); State v. Vitale, supra (no sixth amendment right to counsel during the period between arrest and the filing of an information or indictment). In both of the present cases, the defendant was not formally charged with violating § 14-227a until after he decided not to submit to a chemical test of the alcohol content of his blood. We, therefore, conclude that no sixth amendment right to counsel attached before the defendant decided to refuse to submit to any of the chemical sobriety tests.
There is no error.
In this opinion the other justices concurred.
“[General Statutes] Sec. 54-94a. conditional nolo contendere plea, appeal of denial of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”
The factual circumstances surrounding the defendant’s arrest in each case are not in dispute, and, therefore, will not be discussed in this appeal.
General Statutes § 14-227b (a) provides: “implied consent to test. REFUSAL TO SUBMIT TO TEST. REVOCATION AND SUSPENSION OF LICENSE. hearing, (a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine and, if said person is a minor, his parent or parents or guardian shall also be deemed to have given his consent. . . .”
Both the defendant and the state indicate that the police did not construe the defendant’s first two remarks concerning the test as a final refusal.
There is some dispute as to whether McNeil telephoned McManus at his office, or at his home on the Saturday evening of the defendant’s arrest. The defendant argues that the police were negligent in their attempt to contact the defendant’s attorney. Because of our disposition of the sixth amendment issue in this case, we do not reach this argument of the defendant.
We note that the defendant has not asserted a claim under the state constitutional counterpart to the sixth amendment right to counsel. See Conn. Const., art. I, § 8.
The majority of jurisdictions which have addressed the issue raised in this appeal have also declined to find that a sixth amendment right to counsel attaches at the time a defendant is deciding whether to take a chemical sobriety test. See Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); State v. Vietor, 261 N.W.2d 828 (Iowa 1978); State v. Jones, 457 A.2d 1116 (Me. 1983); Sites v. State, 300 Md. 702, 481 A.2d 192 (1984); Holmberg v. 54-A Judicial District Judge, 60 Mich. App. 757, 231 N.W.2d 543 (1975); Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975); State v. Petkus, 110 N.H. 394, 269 A.2d 123 (1970), cert. denied, 402 U.S. 932, 91