No. 84-079 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, CITY OF BOZEMAN, 

Plaintiff and Appellant, 

-vsTIMOTHY B. ARMFIELD, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Joseph B. Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mary L. Crumbaker-Smith argued, Bozeman, Montana 

For Respondent : 

H. Charles Stahmer argued, Bozeman, Plontana 

-- 

Submitted: October 9, 1984 

Decided: December 28, 1984 

d -*,&& 

Clerk 
r. Chief Justice Frank 7. Haswel-I delivered the Opinion of 

the Court. 

The City of Fozeman and State of Montana appeal from an 

order of the Galla.tin County District Court granting suppression of the results of a breathalizer test. We reverse. 

Timothy Armfield was arrested on a charge of driving 

while under the influence of alcohol. He w3.s taken to the 

Galla.tin County Detention Center and informed of the Yontana 

consent law and of his right to refuse to submit to a blood 

alcohol test. He was informed, at the same time, that he did 

not have a right to consult an attorney before deciding 

whether to submit to the chemical testing. Armfield agreed 

to take the test. 

Defendant Armfield initially filed a motion to suppress 

the results of the breath test in Rozeman City Court. The 

motion was denied and. Armfield pleaded guilty. On appeal to 

District Court, defendant agiiin moved to suppress the test 

results, asserting that he had a constitutional right to 

consult with an attorney before deciding whether to submit to 

a breathalizer test. His motion was granted, and the results 

of the test ordered suppressed. 

The City and State challenge the District Court's 

finding of a limited constitutional right to counsel. Appellants' claims are correct. Neither the United States nor 

Montana constitutions guarantee a defendant the opportunity 

to seek an attorney's a.dvice before deciding whether to 

submit or not to submit to a blood alcohol test. 

Monta.na has enacted the following consent law: 

"(1) Any person who operates a motor 

vehicle upon ways of this state open to 

the public shall be deemed to have given 

consent . . . to a chemical test of his 

blood, breath, or urine for the purpose 

of determining the al.coholic content of 
his blood if arrested by a peace officer 

for driving or in actual physical control 

of a motor vehicle while under the influence of a 1 coho1 . The test shall be 

administered at the direction of a peace 

officer having reasonable grounds to 

believe the person to have been driving 

or in actual physical control of a motor 

vehicle upon ways of this state open to 

the public while under the influence of 

alcohol. . . . 

(3) If a resident driver under arrest 

refuses upon the request of a peace 

officer to submit to a chemical test 

desiqnated by the arresting officer . . . none shall be given, but the officer 

shall, on behalf of the division, immediately seize his driver's license. The 

peace officer shall forward the license 

to the division, along with a sworn 

report that he had reasonable grounds to 

believe the arrested person had been 

driving or was in actual physical control 

of a motor vehicle upon ways of this 

state open to the public, while under the 

influence of alcohol and that the person 

had refused to submit to the test upon 

the request of the peace officer. IJpon 

receipt of the report, the division shall 

suspend the license for the period provided in subsection (5). 

" (5) The following suspension and revocation periods are applicable upon refusal to submit to a chemical test: 

"(a) upon a first refusal., a suspension 

of 90 days with no provision for a restricted probationary license; 

" (b) upon a second or subsequent refusalwithin 5 years of a previous refusal, as 

determined from the records of the division, a revocation of 1 year with no 

provision for a restricted probationary 

license." Section 61-8-402, MCA. 

Defendant does not chal.lenge the statute ' s validity or 

the fact that his consent to testing is deemed given as a 

matter of law. The sole issue on appeal is whether a driver 

arrested on a charge of driving while under the influence of 

alcohol has a right to seek legal advice before deciding 
whether to submit or refuse to submit to a blood alcohol. 

test. 

The District Court held that the Sixth 2nd Fourteenth 

Amendments afford defendant a reasonable opportunity to 

consult counsel prior to submitting to a breathalizer test. 

A "reasonable opportunity" is defined as the twenty or thirty 

minutes required to warm up the breathalizer. 

There is rc constitutj-onal support for a finding of a 

limited right to seek the advice of counsel. The Sixth and 

Fourteenth Amendments do not guarantee defendant's counseled 

consent to testing where consent is deemed given as a matter 

of law. Standish v. Dept. of Revenue, M.V.D. (Kan. 1984), 

6434 P.2d 1276, I281 (holding, under a consent statute similar 

be3 

to Montana's, that when "state law deems that all d-rivers 

have given consent to chemical tests cf blood or breath when 

arrested for driving while under the influence, . . . no 

constitutional right to consult counsel in order to determine 

whether to submit to the test attaches"). 

I 

The Sixth Amendment guarantees defendant the right to 

the assistance of counsel in all prosecutions. U. S. Const., 

Amend. VI; Art. 11, Sec. 24, 1972 Mont. Const. The right 

attaches when the investigation focuses on the defendant 

(Escobedo v. Ill-inois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 

L.Ed.2d 977) and continues through the final appeal of right. 

Douglas v. California (1963), 372 U.S. 353, 83 S.Ct. 814, 9 

L.Ed.3~3 811; Ross v. Moffitt (19741, 417 U.S. 600, 94 S.Ct. 

2437, 41 L.Ed.2d 341. 

The right to counsel is ultimately intended as a protection of a defendant at - trial. United States v. Ash 
(1973), 413 U.S. 300, 93 S.Ct. 2568, 37 IJ.Ed.2d 619 (denying 

a right to the presence of counsel at photographic displays). 

The guarantee of assistance of counsel at trial does not 

carry with it a generalized right to legal representation or 

consultation. 

Armfield is, of course, entitled to the assistance of 

counsel at trial. A.rgersinger v. Hamlin (1972), 407 u.S. 25, 

92 S.Ct. 2006, 32 IJ.Ed.2d 530. As a part of his right to a 

fair trial, he is also entitled to (1) the pretrial presence 

of counsel where the incident or encounter is a "critical 

stage" in the prosecutorial proceedings, United States v. 

Wade (1967) 388 U.S. 218, 87 S.Ct. 3.926, 18 ~.Ed.2d 1149 

(requiring counsel's presence where pretrial procedures 

threaten prejudice which may not be capable of reconstruction 

at trial), and (2) the assistance of counsel at any stage in 

the pretrial proceedings where the advice of counsel is 

essential to the protection of his Fifth Amendment privilege 

against self-incrimination. Escobedo, 378 U.S. at 385-387; 

Massiah v. United States (1964), 377 U.S. 201, 84 S.Ct. 1199, 

Armfield does not claim that he was entitled to the 

presence of counsel or that chemical. testing is a critical 

stage of the prosecution. Systematized or scientific 

analysis of defendant's fingerprints, clothes, blood, hair, 

or breath does not present the problems inherent in Wade's 

pretrial lineup; a hreathalizer test is not susceptible of 

the suggestive manipulation chara.cteristic of the "critical 

stage" event. 

"Knowledge of the techniques of science 

and technology is sufficiently available, 

and the variables in techniques few 

enough, that the a-ccused has the opportunity for a meaningful confrontation of 
the Government's case at trial through 

the ord-inary processes of cross-examination of the Government's expert witnesses 

and the presentatj-on of the evidence of 

his own experts. The denial. of a. right 

to have his counsel. present at such 

analyses does not therefore violate the 

Sixth Amendment; they are not critical 

stages since there is m.inima1 risk that 

his counsel's absence at such stages 

might derogate from his right to a fair 

trial." Wade, 388 U.S. at 227-228. 

The presence of counsel was not required at Armfield's 

breathalizer test to ensure a mea.ningfu1 confrontation and 

the effective assistance of counsel at trial. 

The Massiah, Escobedo 2nd lliranda decisions link the 

Flfth Amendment privilege to the Sixth Amendment ' s right to 

counsel. Escobedo and. Miranda sought to preserve the privilege against self-incrimination through protection of defendant from the coerci~~e aspects of custodial. interrogation. 

Escobedo, 378 U.S. at 478; Miranda v. Arizona (1966), 384 

U.S. 436, 86 S.Ct. 1602, 16 L.F.d.2d 694. ~assiah sought 

similar protections where uncounseled and. undisclosed 

post-indictment noncustodial interrogation elicited incriminating statements. Massiah, 377 U.S. at 201. All. three 

decisi0n.s characterize the right to assistance of counsel as 

a necessary means of preserving defendant's privilege against 

self-incrimination--his absolute right to refuse to testify 

or communicate. 

The results of a breath test are not self-incriminatimg 

cornmunicat.ions. South Dakota v. Neville (1983) , 459 u.S. 

553, 103 S.Ct. 916, 74 L.Ed.2d 748 (including defendant's 

communicated refusal to submit to testing within the area of 

unprotected physical evidence). State v. Jackson (Mont. 

1983), 672 P.2d 255, 40 St.Rep. 1698 (relying on Neville to 

hold that the admission of evidence of defendant's refusal to 
submit to a breathalizer test did not offend his privilege 

against self-incrimination). The Fifth Amendment "offers no 

protection against compulsion to submit to fingerprinting, 

photography, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to 

walk, or to make a particular gesture." Wade, 388 U.S. at 

223; see also Gilbert v. California (1967), 388 U.S. 363, 87 

S.Ct. 1951, 18 L.Ed.2d 1178 (finding handwriting to be among 

the unprotected physical characteristics, like the voice or 

body itself, and the taking of the exemplar not to be a 

"critical stage" of the criminal proceeding). Defendant's 

blood alcohol level, like his voice or body, is unprotected 

"physical or real" evidence, not Fifth Amendment communications. Schmerber v. California (1966), 384 U.S. 757, 86 

S.Ct. 1826, 16 L.Ed.2d 908 (holding that a state can force a 

defendant to submit to a blood alcohol test since the Fifth 

Amendment protects only communicative or testimonial 

evidence) . 

Defendant enjoys a right to consult counsel only where 

the assistance of counsel is required to protect other rights 

guaranteed him by law. The breathalizer test threatened no 

invasion of a protected right. Armfield was deemed, as a 

matter of law, to have consented. to testing. Neither consent 

nor refusal is constituti.onally protected, and no right to 

consult counsel attaches to a choice between the two. 

I1 

The trial court based its finding of a right to counsel 

on the Fourteenth 5s well as t.he Sixth Amendment. The Fourteenth Amendment provides two separate sources for a finding 

of right to counsel.: (1) the Amendment ma-kes the Sixth 
Amendment right to counsel applicable to the states; and (2) 

the Amendment, in and of itself, guarantees certain procedural rights held to be "of the very essence of a scheme of 

ordered liberty." Palko v. Connecticut (1937), 302 U.S. 319, 

325, 58 S.Ct. 149, 82 L.Ed. 288. 

The Sixth Amendment makes no provisi-on for a limited 

right to consult counsel before deciding to refuse or submit 

to a breathalizer test. The right, if it exists, exists 

within the "vague contours" of the Fourteenth Amendment 

itself. Rochin v. California (1952), 342 U.S. 1.65, 3.70, 72 

S.Ct. 205, 96 L.Ed. 3.83. The due process clause imposes upon 

the states "the general requirement that States in their 

prosecutions respect certain decencies of civilized conduct. 

Due process of law, as a historic and generative principle, 

precludes defining, and thereby confining, these standards of 

conduct more precisely than to say that convictions cannot be 

brought about by methods that offend 'a sense of justice'." 

Rochin. 342 U.S. at 173. 

Rochin, like Schmerber and Neville, involved only 

unprotected physical evidence. Unlike Schmerber and Neville, 

the case also involved police "methods too close to the rack 

and the screw to permit of consti.tutiona1 differentiation. " 

Rochin, 342 U.S. at 172. Sheriff's deputies illegally entered the defendant's home, forced the door to his bedroom 

and, when the defendant attempted to swa1I.o~ two morphine 

capsules, jumped him and strugqled to open his mouth and 

extract the evidence. Failing at their initial seizure 

attempt, the deputies handcuffed the defendant, took him to a 

hospital and had his stomach pumped until induced vomiting 

produced the capsules. The Court implicitly acknowledged. and 
avoided the Fifth Amendment limitations and condemned the 

conduct as violative of the decency demands of due process. 

Armfield was arre~ted, informed of his riqhts and the 

Montana consent statute ' s requirements. He was denied the 

opportunity to seek the advice of counsel. The test was 

conducted in compliance with statutory provisions. See 

S 61-8-405, MCA. We hold that the requirements of due process were met. U. S. Const., Amend. XIT7; Art. 11, Sec. 17, 

1972 Mont. Const. We find the "community's sense of fair 

play and decency" to be embodied in the consent law itself. 

See Rochin, 342 U.S. at 173; Neville, 459 U.S. at 558 (lamenting the increasing slaughter on our highways and recognizing the state's compelling interest in highway safety). 

We do not find that the Armfield denial- of an opportunity to 

call counsel constitutes the kind of conduct that requires 

the delineation of due process prohibition. Compare Rochin, 

342 U.S. at 172-74 (describing legalized force so brutal as 

to offend our sense of human dignity). 

The order of the District Court is reversed and the 

cause remanded to the District Court for further proceedings. 

- - L / 

Chief Justice 
We concur: 

Justices 

Mr. Justice Daniel J. Shea concurs and will file a specially 

concurring opinion later.