Sites v. State

⁷⁰⁷ MURPHY, Chief Judge. The primary issue in this case is whether a person apprehended for driving while intoxicated has a statutory or constitutional right to consult counsel before deciding whether to submit to a chemical sobriety test. I. The record establishes that Jacob Edward Sites was stopped for drunk driving at approximately 12:45 a.m. on May 15, 1982. At 12:55 a.m., while still at the scene, the arresting officer read Sites a standardized statement of his rights and the penalties for refusal to submit to a chemical test under the State’s implied consent statute, Maryland Code (1984 Repl.Vol.), § 16-205.1 of the Transportation Article. 1 Upon the police officer’s request, Sites agreed to ⁷⁰⁸ take a chemical sobriety test and signed the required consent form.

The officer then drove him to the Howard County Police Station, a five-minute journey by car from the location of the arrest. According to Sites’ testimony at trial, he thrice requested permission to telephone his attorney at some point after arriving at the police station, both before and after the test was administered, but the arresting officer said he had no right to counsel. The arresting officer’s testimony was that Sites could have made such requests, although the officer had no such recollection. A breathalyzer test was administered to Sites at 1:25 a.m., resulting in a finding of 0.17 percent ethyl alcohol by weight.* 2 Sites was formally charged at 1:45 a.m. with driving while intoxicated.

Sites filed a pretrial motion to suppress the test results on the ground, inter alia, that he was denied his right to counsel prior to the administration of the chemical sobriety test. The Circuit Court for Howard County (Nissel, J.) ruled as a matter of law that Sites had no such right to consult counsel. The court said: “As far as his being entitled to an attorney, there’s no law that I know of that he’s entitled to an attorney for the purpose of taking advice of taking a test.” ⁷⁰⁹ Sites was thereafter convicted by a jury of driving while intoxicated. We granted certiorari prior to consideration of Sites’ appeal by the Court of Special Appeals to consider the issue of public importance raised in the case. 298 Md. 353 , 469 A.2d 1274 .

II

The Statutory Right to Counsel Sites maintains that he had a statutory right to consult counsel before deciding whether to submit to a chemical test for sobriety. He contends that § 16-205.1 of the Transportation Article and § 10-309 of the Courts Article mandate that police provide an opportunity to persons apprehended for drunk driving to communicate with counsel before making the decision whether to submit to the test. Section 10-303 of the Courts Article requires that the chemical sobriety test be administered within two hours “after the person accused is apprehended.” Section 10-309 provides, with certain exceptions not here applicable, that a person may not be compelled to submit to such a test. The section further provides that no inference or presumption concerning guilt arises because of refusal to submit to the test, and that the fact of refusal to submit is not admissible in eyidence at the trial.

Section 16-205.1(a) of the Transportation Article explicitly states that any person who operates a motor vehicle in this State is deemed to have consented (with exceptions not here pertinent) to take a chemical test to determine alcohol content if apprehended on suspicion of drunk driving. Subsection (b) of this section provides that a licensed Maryland driver, who declines to take the test, shall have his license suspended for not less than 60 days nor more than 6 months for a first offense. Section 16-205.1(b)(2) delineates the formal prerequisites which must be met before a chemical test may be administered. No right is there afforded to confer with counsel prior to deciding whether to take the test.

In contrast, § 16-205.-1(f)(3) specifically provides that a person refusing a chemi ⁷¹⁰ cal test may be represented by an attorney in subsequent proceedings, indicating that had the legislature intended to provide a pretest right to confer with counsel, it would specifically have so provided. The cardinal rule of statutory construction is to ascertain and effectuate the actual legislative intent. See, e.g., In Re Arnold M., 298 Md. 515 , 471 A.2d 313 (1984); Koyce v. State, Central Collection Unit, 289 Md. 134 , 422 A.2d 1017 (1980). The primary source of the legislative intent is the language of the statute itself.

See, e.g., Blum v. Blum, 295 Md. 135 , 453 A.2d 824 (1983); Haskell v. Carey, 294 Md. 550 , 451 A.2d 658 (1982). Where the statutory provisions are unambiguous, no construction is required. See, e.g., Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597 , 458 A.2d 758 (1983); Brown v. Brown, 287 Md. 273 , 412 A.2d 396 (1980). Thus, it is manifest that a plainly worded statute must be construed without forced or subtle interpretations designed to extend or limit the scope of its operation.

Guy v. Director, 279 Md. 69 , 367 A.2d 946 (1977). The trial court found as a fact at the hearing on the motion to suppress that Sites’ consent to take the test was obtained in accordance with all statutory requirements. See State v. Moon, 291 Md. 463 , 436 A.2d 420 (1981); State v. Loscomb, 291 Md. 424 , 435 A.2d 764 (1981). The requirements of the statute having been met, no basis exists for suppressing the breathalyzer evidence based on the claimed denial of the opportunity to consult with counsel.

See generally Annot., 18 A.L.R.4th 705 (1982). The Sixth Amendment Right To Counsel Sites maintains that he had a right under the Sixth Amendment to the Federal Constitution to communicate with counsel prior to submitting to the chemical sobriety test. He asserts that the pretest period is a “critical stage” of the drunk driving prosecution in that the defendant is called upon to make a choice between taking or not taking ⁷¹¹ the test—a choice, he says, which will have a substantial and irreversible impact on the ensuing trial. As Sites puts it, the decision whether to take the test is “the whole ball game” in drunk driving cases.

He states: “If [the drunk driving suspect] submits and is in fact intoxicated, he has virtually no chance of winning the criminal case. If he refuses, he loses his license. A police officer quickly and mechanically reading a litany of rights cannot help him to make this choice. An attorney, professionally obligated to assist the suspect, may well be able to guide him toward the least of the evils.” Under the Sixth Amendment, a right to counsel attaches, inter alia, at the time of certain evidence-gathering processes which are deemed “critical stages” of the criminal prosecution as an extension of a defendant’s right to representation by counsel in court.

Some courts have held that a Sixth Amendment right to counsel, which is applicable to the states through the Fourteenth Amendment, does afford a person apprehended for drunk driving a right to communicate with counsel before deciding whether to take a chemical sobriety test. See State v. Welch, 135 Vt. 316 , 376 A.2d 351 (1977); State v. Fitzsimmons, 93 Wash.2d 436 , 610 P.2d 893 (1980); State v. Bristor, 9 Kan.App.2d 404 , 682 P.2d 122 (1984). Most courts, however, have reached a contrary conclusion, finding no Sixth Amendment right to counsel. 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); 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 S.Ct. 1522 , 28 L.Ed.2d 867 (1971); Seders v. Powell, 298 N.C. 453 , 259 S.E.2d 544 (1979); McNulty v. Curry, 42 Ohio St.2d 341 , 328 N.E.2d 798 (1975); State v. Newton, 291 Or. 788 , 636 P.2d 393 (1981); Law v. Danville, 212 Va. 702 , 187 S.E.2d 197 (1972); Holmberg v. 54-A Judicial District Judge, 60 Mich.App. 757 , 231 N.W.2d 543 (1975).

The Supreme Court in Kirby v. Illinois, 406 U.S. 682 , 92 S.Ct. 1877 , 32 L.Ed.2d 411 (1972) clearly limited the scope of ⁷¹² that which may be deemed a critical stage of the criminal prosecution. It held that the Sixth Amendment right to counsel does not attach until or after the initiation of an adversarial criminal proceeding by way of indictment, information, or other formal charge, arraignment or a preliminary hearing of the type involved in Coleman v. Alabama, 399 U.S. 1 , 90 S.Ct. 1999 , 26 L.Ed.2d 387 (1970). The Kirby test has been reaffirmed by the Supreme Court in a number of later cases. See United States v. Gouveia, — U.S. -, 104 S.Ct. 2292 , 81 L.Ed.2d 146 (1984); Estelle v. Smith, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981); Moore v. Illinois, 434 U.S. 220 , 98 S.Ct. 458 , 54 L.Ed.2d 424 (1977); Brewer v. Williams, 430 U.S. 387 , 97 S.Ct. 1232 , 51 L.Ed.2d 424 (1977); United States v. Mandujano, 425 U.S. 564 , 96 S.Ct. 1768 , 48 L.Ed.2d 212 (1976).

Consistent with Kirby and its progeny, we recently held in Webster v. State, 299 Md. 581 , 474 A.2d 1305 (1984) that the formal charge is the legal event that marks the starting point of the right to counsel under the Sixth Amendment. In the present case, Sites was not formally charged until 1:45 a.m. on May 15, 1982, which was twenty minutes after he took the breathalyzer test and fifty minutes after he signed the consent form. We therefore conclude that his request for counsel before taking the test was not made at a critical stage of the proceeding and that, consequently, no Sixth Amendment right to the assistance of counsel attached before the test was administered. 3 Due Process Right To Counsel Appellant contends that he had a due process right under the Fourteenth Amendment to communicate with counsel preliminary to making the determination whether to submit ⁷¹³ to the chemical test. He relies primarily upon People v. Gursey, 22 N.Y.2d 224 , 292 N.Y.S.2d 416 , 239 N.E.2d 351 (1968); Troy v. Curry, 36 Ohio Misc. 144 , 303 N.E.2d 925 (1973); State v. Newton, 291 Or. 788 , 636 P.2d 393 (1981)— all cases involving implied consent laws similar to the Maryland statute where, as here, the arrestee asked to communicate with counsel prior to taking the sobriety test.

In Gursey , the issue before the court was “whether a criminal conviction may rest upon the results of a chemical test performed over the defendant’s initial objection and after he had been prevented from telephoning his lawyer for legal advice concerning the test, such communication involving no significant or obstructive delay.” 239 N.E.2d at 352 . The lower appellate court had determined that the denial of the arrestee’s request to telephone counsel constituted a violation of his “constitutional rights.” Id. In affirming that judgment, the Court of Appeals of New York concluded “that the test results were secured in violation of defendant’s privilege of access to counsel without occasioning any significant or obstructive delay.” Id. The court recognized that the defendant “possessed a number of statutory options which could be asserted only during the transaction at the station house, and concerning which the advice of counsel, if available, was relevant.” Id. at 352-53 .

The court said: “[L]aw enforcement officials may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand.... ****** “... Granting defendant’s requests would not have substantially interfered with the investigative procedure, since the telephone call would have been concluded in a matter of minutes.... Consequently, the denial of defendant’s requests for an opportunity to telephone his ⁷¹⁴ lawyer must be deemed to have violated his privilege of access to counsel.” Id. at 352-53 . The court in Gursey added this caveat: “The privilege of consulting with counsel concerning the exercise of legal rights, should not, however, extend so far as to palpably impair or nullify the statutory procedure requiring drivers to choose between taking the test or losing their licenses.” Id. at 353 .

But, the court reiterated: “... Where the defendant wishes only to telephone his lawyer or consult with a lawyer present in the station house or immediately available there, no danger of delay is posed____ If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, the defendant may be required to elect between taking the test and submitting to revocation of his license, without the aid of counsel.” Id. at 353 . The court emphasized that “there can be no recognition of an absolute right to refuse the test until a lawyer reaches the scene.” Id. In so stating, the court referred, with approval, to the concurring opinion in an earlier civil license revocation appeal, Finocchairo v. Kelly, 11 N.Y.2d 58 , 226 N.Y.S.2d 403 , 181 N.E.2d 427 (1962).

In Finocchairo , as in Gursey , the police denied the defendant permission to call his lawyer before making the choice whether to take the sobriety test. The concurring opinion, while declining to decide whether, in a