Confusion in refusal to take breath test STATE v. LEAVITT
107 N.J. 534 (1987)
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ROBERT B. LEAVITT,
DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Decided June 30, 1987.
Charles P. Allen, Jr., argued the cause for appellant (Dietrich, Allen
& St. John, attorneys).
John M. Willis, Assistant Prosecutor, argued the cause for respondent (Paul
T. Koenig, Jr., Mercer County Prosecutor, attorney).
Boris Moczula, Deputy Attorney General, argued the cause for amicus curiae
Attorney General of New Jersey (W. Cary Edwards, Attorney General, attorney).
The opinion of the Court was delivered by O'HERN, J.
We granted certification, 107 N.J. 28
(1986), limited solely to defendant's argument that giving Miranda1 warnings and "implied
consent" warnings to a suspected intoxicated driver is inherently
confusing, thereby depriving the suspect of the effective assistance of
counsel. The Miranda warnings basically state that a defendant has the
right to remain silent and the right to consult with an attorney; the
"implied consent" or "refusal" warnings, however, inform
the suspect that the right to remain silent and right to consult with an attorney
do not apply to the taking of breath tests and do not give a right to refuse to
take the breath test. We find that this defendant was not confused and that he
was not denied the effective assistance of counsel at any critical stage of the
prosecution.
The case arises from an accident in a parking lot. The defendant had
returned to the parking lot in order to push his
[107 N.J. 536]
stalled vehicle to an area from which it could be towed. He got the car
rolling and jumped in, but in the course of its passage through the parking lot
the car collided with a car backing out of a parking space. This car's driver
suspected defendant was under the influence of alcohol, and called the police.
The police officer who arrived at the scene smelled alcohol on defendant's
breath and conducted a field balance test. The officer arrested the defendant
and took him to police headquarters. Defendant consented to breathalyzer
testing, which resulted in two .16% blood-alcohol readings.2
The argument made in the municipal court was essentially a right-to-counsel
argument phrased this way:
[T]he
problem is * * * that the Miranda Rights and the Refusal Rights are read to the
defendant and they are in conflict. Although we can say it's illegal in the
sense that Mr. Leavitt will be punished for a refusal to take the test, he does
have the power in New Jersey to refuse to take the test. And * * * in that
situation, he must have the advice of counsel.
The municipal court correctly recognized that "there is no
constitutional sixth amendment right or constitutional due process right to
Counsel for purposes of consultation prior to the administration of a
breathalyzer test." It therefore ruled that the warning to the defendant
that he had no right-to-counsel before deciding whether to consent to such a
test is not a deprivation of the defendant's rights. Hence, the court denied
the motion to suppress the results of the breathalyzer test. Defendant was
convicted of driving while intoxicated in violation of N.J.S.A. 39:4-50.
On appeal to the Law Division, defendant renewed the argument concerning
the inconsistent nature of the warnings, stating that the "contradictory
advice given under the refusal form leads any person into confusion * * * [a]nd
the law is in somewhat * * * of confusion now." The Law Division found,
[107 N.J. 537]
however, that the police officer did, in fact, properly inform the
defendant of his rights under the implied consent law and recognized that
although some states have decided that a defendant does have a right to
assistance of counsel during the initial stages of the arrest, and prior to and
during the breathalyzer test so long as that does not cause undue delay, it was
not the law in New Jersey. The court also noted that "at no time * * *
during the video taping did the defendant request that an attorney be provided
to him after having been advised of his rights." It thus found no cause to
suppress the breathalyzer test or dismiss the complaint on this issue.3
Defendant raised five issues on appeal: (1) that the inherent conflict
between the Miranda warnings and the instructions prior to
administration of the breath test created a violation of his constitutional
rights and mandates dismissal; (2) that the practice of the local police of
holding individuals suspected of driving while intoxicated (DWI) for several
hours prevented him from obtaining independent scientific tests; (3) that the
breath test results were not conclusive and were rebutted by the videotape evidence;
(4) that the State had not carried its burden of proof; and (5) that defendant
was not "operating" his vehicle within the meaning of the New Jersey
statute. The Appellate Division, in an unreported decision, rejected each claim
and affirmed the conviction. Here, we address only the first issue.
I.
A brief review of the pertinent regulatory framework is in order. The
implied consent law, N.J.S.A. 39:4-50.2(a), provides:
[107
N.J. 538]
Any
person who operates a motor vehicle on any public road, street or highway or
quasi-public area in this State shall be deemed to have given his consent to
the taking of samples of his breath for the purpose of making chemical tests to
determine the content of alcohol in his blood; provided, however, that the taking
of samples is made in accordance with the provisions of this act and at the
request of a police officer who has reasonable grounds to believe that such
person has been operating a motor vehicle in violation of the provisions of
R.S. 39:4-50.
N.J.S.A. 39:4-50.2(e), however, prohibits the
use of physical force to compel the administration of the breath test.
Therefore, the statute specifically states:
The
police officer shall * * * inform the person arrested of the consequences of
refusing to submit to such test in accordance with [N.J.S.A. 39:4-50.4a]
of this amendatory and supplementary act. A standard statement, prepared by the
director, shall be read by the police officer to the person under arrest.
The consequences of refusing to submit "when requested to do so"
are a fine of not less than $250 and a six month suspension of driving
privileges, or if in connection with a subsequent offense under the section, a
two year revocation. N.J.S.A. 39:4-50.4a.
Prior to the decision in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct.
3138, 82 L.Ed.2d 317 (1984), which held that the police authorities must
give Miranda warnings to a person suspected of a motor vehicle offense
before subjecting the suspect to custodial interrogation, the standard
statement prepared by the Director of the Division of Motor Vehicles (Director)
did not include Miranda warnings. In State v. Macuk, 57 N.J. 1, 15 (1970), the
Court had held:
There
is no legal right or choice to refuse, despite the authorized additional
penalty for refusal in the case of the breath test. So it is inappropriate to
warn that a test need not be taken, although it is quite fair to advise of the
consequences of refusal to take a breath test.
Since the decision in Berkemer v. McCarty, supra, 468 U.S. 420, 104 S.Ct.
3138, 82 L.Ed.2d 317, however, Miranda warnings have been given.
These are customarily given prior to a recitation of the refusal warnings.
Some jurisdictions have held that when a motorist is confused by the two
warnings concerning assistance of counsel — one warning (Miranda)
according the assistance of counsel, the
[107 N.J. 539]
other (breath test refusal) not according assistance of counsel —
and then refuses to take the breath test in the mistaken belief that the
refusal is privileged, the motorist should not suffer the consequences of
confusion and not be penalized for the refusal. See, e.g., Wethern v. Orr,
271 Cal.App.2d
813, 76 Cal.Rptr. 807
(4th Dist. 1969); Calvert v. State Dep't. of Revenue, Motor Vehicle Div.,
184 Colo. 214, 519 P.2d 341
(1974); State v. Severino, 56 Haw. 378, 537 P.2d 1187 (1975); Swan
v. Department of Pub. Safety, 311 So.2d 498 (La. App.
1975); Muir v. Cox, 611 P.2d 384
(Utah 1980). Other jurisdictions have held that the administration of the
breath test constitutes a critical stage in a criminal prosecution entitling
the accused to the assistance of counsel. See, e.g., State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971); State
v. Fitzsimmons, 93 Wn.2d 436,
610 P.2d 893, vacated,
449 U.S. 977, 101 S.Ct. 390, 66 L.Ed.2d 240, aff'd on remand, 94 Wn.2d 858, 620 P.2d 999 (1980). See
generally Annotation, "Denial of Accused's Request for Initial Contact
With Attorney — Drunk Driving Cases," 18 A.L.R. 4th 705 (1982)
(discussing state and federal cases involving drunk driving offenses in which
courts have discussed police denials of suspect's request for initial contact
with an attorney); Annotation, "Request Before Submitting to Chemical
Sobriety Test to Communicate With Counsel as Refusal to Take Test," 97 A.L.R.3d
852 (1980) (discussing federal and state cases in which courts have discussed
request to consult attorney before submitting to chemical test as refusal to
take test). In these states, it is irrelevant that the suspect is confused; the
critical inquiry is whether the defendant was afforded the opportunity to
obtain assistance of counsel before administration of the breath test.
II.
Concededly, it is difficult to impart to a suspected inebriate in a station
house the subtle legal distinctions that make it constitutionally permissible
to extract a person's blood or breath but not his or her words. The distinction
is not always that clear to
[107 N.J. 540]
judges. See the several opinions in Schmerber v. California, 384 U.S. 757, 86 S.Ct.
1826, 16 L.Ed.2d 908 (1966). And superimposed upon the fifth-amendment
distinctions between testimonial and nontestimonial compulsion is the
sixth-amendment guarantee of the effective assistance of counsel at the
critical stages of criminal proceedings.
To avoid confusion between fifth- and sixth-amendment guarantees, the
terminology applicable to Miranda interrogation should not be used
interchangeably with the sixth-amendment guarantee of the effective assistance
of counsel. An example will suffice to illustrate the differences. A motorist
apprehended on a speeding ticket and brought before a municipal court
accurately could be told that he had no constitutional right to the assistance
of counsel in the disposition of the traffic ticket. It would be incorrect to
tell him that he had no right to consult an attorney on the charges. The concepts
are obviously different.
By the same token, but for different reasons, a motorist requested to
furnish a breath or blood sample is not guaranteed the sixth-amendment's
assistance of counsel at that stage of the proceedings. United States v.
Wade, 388 U.S. 218,
87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); see State v. DeLorenzo, 210 N.J.Super.
100 (App.Div.), certif. denied, 105 N.J. 507 (1986)
(scientific analysis of blood sample not a critical stage). No provision of the
New Jersey Constitution or statutes furnishes such a guarantee. See State v.
Green, 209 N.J.Super.
347 (App.Div. 1986) (Miranda inapplicable to breathalyzer
test and field sobriety testing); cf. State v. Stever, 107 N.J. 543 (1987) (under
South Dakota v. Neville, 459 U.S. 553, 103 S.Ct.
916, 74 L.Ed.2d 748 (1983), no Miranda warnings are required with
respect to police request for blood-alcohol test; no independent state grounds
exist to require contrary result). Hence, it is correct to advise the suspect
that he has no right to refuse to give a breath sample on the ground that he
has not been afforded counsel.
[107 N.J. 541]
Whether a suspect should be permitted to call an attorney before the test
is more a matter of timing and practicality than anything else. Our traditions
presuppose access to counsel or family by persons in police custody. Many
states provide for this by statute or court rule. See American Law
Institute, Model Code of Pre-Arraignment Procedure (Tent. Draft 1966)
app. V (citing, Ala. Code tit. 41, § 223 (1958); Alaska Stat. §
12.25.150 (1962); Colo. Rev. Stat. Ann. § 39-1-1 (1963); Ill. Ann.
Stat. ch. 38, para. 103-3 (Smith-Hurd 1964); Ky. Rule Crim.P. 2.14; Mass.
Gen. Laws Ann. ch. 276, § 33A (Supp. 1964); N.H. Rev. Stat. Ann. §
594:16 (1955); N.C. Gen. Stat. § 15-47 (Supp. 1963); Tenn. Code Ann.
§ 40-2004 (1955); Wash. Rev. Code Ann. § 9.33.020 (1961)). The American
Law Institute, Model Code of Pre-Arraignment Procedure, supra,
recommended that "[p]romptly after the warning [concerning how long the
suspect may be held] the station officer shall afford the arrested person an
opportunity, including if necessary funds in a reasonable amount, to use a
telephone[,]" § 4.01(5); and that "[c]ounsel for an arrested person
shall have prompt access to him, by telephone, and in person on counsel's
arrival at any place where such person is detained." § 5.07.
The problem that police face in the drunk driving setting is that they must
administer the necessary blood-alcohol test within a reasonable time after the
arrest in order to get an accurate reading. "The evidence is evanescent
and may disappear in a few hours." State v. Dyal, 97 N.J. 229, 239 (1984).
Hence, the more accurate assessment of the situation is that because the police
must administer the blood-alcohol test promptly, they are unable to afford
suspects the opportunity to consult with counsel before they administer the
test. We fear, however, that too many language refinements will only add to the
confusion and not eliminate it. The Director has developed a suggested form
that correctly states the reality of the situation, if not the legal reasoning
that supports it. To be more accurate and perhaps less confusing, it would be
better simply to advise the suspect that his right to consult with an attorney
[107 N.J. 542]
before giving any oral or written statement does not give him the right to
refuse to give (or to delay giving) the breath sample when requested. Without
intending to crystallize the concept in any particular set of words, it strikes
us that a variant of paragraph four of the Director's standard form, which
would convey the same meaning, would be:
The
warnings previously given to you concerning your right to remain silent and
right to consult with an attorney do not apply to the taking of breath samples
and do not give you the right to refuse to give (or to delay giving) samples of
your breath for purposes of conducting breath tests. You have no legal right to
have an attorney, physician, or anyone else present, for purposes of taking the
breath samples. If you refuse to give the required breath samples, such a
refusal will be used against you on a charge of refusing to submit to breath
tests.
We recognize that despite the best of efforts some confusion may remain.
Without resolving whether any defendant may validly assert the defense, we
agree with the view expressed in the Attorney General's brief that the
"exclusive, narrow exception to the general rule that refusals cannot be
validly justified," would have to be premised on a record developed by a
defendant to show that he had indeed been confused. We also agree that it is
entirely appropriate that a defendant bear the burden of persuasion if he
wishes to establish a confusion claim. We suspect that in most cases the
defendant makes a more practical rather than legal judgment about exercising
the statutory right to refuse a blood-alcohol test in light of the generally
known consequences.
In this case it is clear that the "confusion doctrine" cannot be
asserted by the defendant. Both trial courts benefited from review of the
videotape of defendant's breath testing proceedings, together with all other
exhibits and evidence, to sustain their conclusion that defendant had been
apprised of the relevant legal principles and was not confused with respect to
the exercise of his rights.
The judgment of conviction under N.J.S.A. 39:4-50 is affirmed.
[107 N.J. 543]
For affirmance — Chief Justice WILENTZ and
Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.
For reversal — None.
FOOTNOTES
1. Miranda
v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2.
Defendant had been given Miranda warnings when originally arrested. He
was given additional Miranda warnings at the station house, and then
read the standard breathalyzer refusal or "implied consent" warnings
before submitting to the breathalyzer test.
3.
At the trial before the municipal court and the de novo appeal before
the Law Division, each court rejected the arguments that defendant's pushing
his auto and placing it in motion did not constitute operation of the vehicle
and that his inability to obtain independent blood testing invalidated the test
results against defendant. We do not address these two issues and focus only on
the alleged confusion created by the warnings.
