No. 84-079 IN THE SUPREME COURTOF THE STATE OF MONTANA 1984

STATE OF MONTANA, CITY OF BOZEMAN, PlaintiffandAppellant,

-vsTIMOTHY B. ARMFIELD, Defendant and Respondent.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, Inand for the County of Gallatin, The Honorable Joseph B. Gary, Judgepresiding.

COUNSELOF RECORD:

ForAppellant: 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

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Clerkr.Chief Justice Frank 7.Haswel-I delivered the Opinion of theCourt. The Cityof Fozeman and Stateof Montana appeal from an order of theGalla.tinCounty DistrictCourt 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. Hew3.s taken tothe Galla.tinCounty Detention Center and informed of theYontana consent law and of his right torefuse to submit toa blood alcoholtest. Hewas informed, atthe same time, thathe did not have a right to consult an attorney before deciding whether to submit to the chemical testing. Armfieldagreed totake thetest. DefendantArmfield initiallyfiled a motion tosuppress 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 consultwith anattorneybefore decidingwhether tosubmit to

a breathalizer test. Hismotion was granted, and theresults of thetest ordered suppressed. The City and State challenge the District Court's findingof a limited constitutional righttocounsel. 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 ornottosubmit toa 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 shallbe deemed tohave given consent 

# .

# . . to a chemical test of his blood, breath, or urine for the purpose of determining the al.coholic content ofhis blood if arrested by a peace officer fordriving or in actualphysical control of amotor vehicle while under the influence of a1 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 amotor vehicle upon ways of this state open to the public while under the influence of alcohol.

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(3) If a resident driver under arrest refuses upon the request of a peace officer to submit to a chemical test desiqnatedby the arresting officer

# ... none shall be given, but the officer shall,onbehalf 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 thepublic,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 revocationperiods 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 subsequentrefusalwithin 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.lengethe statute

### 'svalidity 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 drivingwhile under the influence 

### of alcohol has a right to seek legal advice before decidingwhether 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 thebreathalizer. There is rc constitutj-onalsupport 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 constitutionalright 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 allprosecutions. U. S. Const., Amend. VI; Art. 11, Sec. 24, 1972 Mont. Const. The right attaches when the investigation focuses on the defendant

(Escobedov. 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 thepresence of counsel atphotographic 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.rgersingerv. Hamlin (1972),407u.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.2d1149

(requiring counsel's presence where pretrial procedures threatenprejudice whichmay notbe 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),377U.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.cteristicof 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-ccusedhas the opportunity for a meaningful confrontation ofthe Government's case at trial through the ord-inaryprocesses of cross-examination of the Government's expert witnesses and the presentatj-onof 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.inima1risk that his counsel's absence at such stages might derogate from his right to a fair trial." Wade, 388U.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. ~assiahsought similar protections where uncounseled and. undisclosed post-indictment noncustodial interrogation elicited incriminating statements. Massiah, 377 U.S. at 201. All. three decisi0n.scharacterize the right to assistance of counsel as
a necessary means ofpreserving defendant's privilege against self-incrimination--his absolute right to refuse to testify

or communicate. The results of abreath 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 evidenceof defendant's refusal tosubmit to a breathalizer test did not offend his privilege against self-incrimination). The FifthAmendment "offersno 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), 388U.S. 363, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (findinghandwriting 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 (holdingthat 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 assistanceof counsel is required toprotect 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 courtbased its findingof a right to counsel

on the Fourteenth 5swell as t.he SixthAmendment. The Fourteenth Amendment provides two separate sources 

### for a finding of right to counsel.: (1) the Amendment ma-kes the SixthAmendment right to counsel applicable to the states; and (2) theAmendment, in and of itself,guarantees certain procedural rights held to be "of the very essence of a scheme of ordered liberty." Palkov. Connecticut (1937), 302U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288. The Sixth Amendment makes no provisi-onfor 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, 96L.Ed. 3.83. Thedue 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 cannotbe brought about by methods that offend 'a sense of justice'." Rochin. 342U.S. at 173. Rochin, like Schmerber and Neville, involved only unprotected physical evidence. Unlike Schmerber andNeville, the case also involvedpolice "methodstoo close to the rack and the screw to permit of consti.tutiona1differentiation.

### " 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 deputieshandcuffed thedefendant, took him to a hospital and had his stomach pumped until induced vomiting produced the capsules. The Court implicitly acknowledged. andavoided 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 (describinglegalized force so brutal as to offend our sense of human dignity). The order of the District Court is reversed and the

causeremanded to the DistrictCourt for furtherproceedings.

- - L / Chief JusticeWe concur:

Justices

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