City of Lakewood v. Waselenchuk

Defendant-appellant Nancy Waselenchuk appeals from her conviction following a bench trial in Lakewood Municipal Court for operating a motor vehicle while under the influence of alcohol in violation of city of Lakewood Ordinance 333.01. Defendant claims error in the trial court's failure to suppress evidence of her breathalyzer test, since she was deprived of her right to counsel contrary to R.C. 2935.20 and her constitutional rights. We find merit to the appeal and reverse the conviction.

At 1:43 a.m. on May 18, 1992, defendant was stopped by a Lakewood police officer for driving without her headlights on. After the officer conducted field sobriety tests on defendant, she was arrested for driving while under the influence of alcohol and taken to the Lakewood Police Station for booking.

The booking procedure commenced at 2:18 a.m. After being advised of her rights, she signed the form indicating she understood her rights. She was then presented with a second "waiver of rights" form, asked if she understood it and if she would sign it, waiving her rights to an attorney. Defendant replied:

"I'm scared. This sounds like I'm up under a real big serious thing and I think I should have an attorney."

The officers did not offer defendant a telephone or seek the name of her attorney. The booking procedure continued without execution of the waiver form. Defendant continued to answer the questions so she would appear cooperative. Near the end of the booking procedure, defendant was permitted to place calls to her fiance, her sister and her father in order to find someone to post bond.

Prior to the administration of the breathalyzer test at approximately 3:00 a.m., defendant was read the implied consent form by the booking officer. She stated, "God, and I have to decide this without a lawyer?" She did not press her demand for an attorney again because of "time constraints," i.e., the necessity that the breathalyzer test be taken promptly. The test proceeded and disclosed a .16 blood-alcohol content.

On July 7, 1992, defendant moved to suppress the breathalyzer test on the grounds the arresting officers violated R.C.2935.20. At the suppression hearing on July 24, the motion was amended to include an in limine request.

At the suppression hearing, the defendant and the arresting and booking officers testified. The audiocassette booking tape and waiver of rights form were received into evidence. The court overruled defendant's suppression/in limine motions on the grounds that the officers did not violate R.C. 2935.20.

During the bench trial on August 27, 1992, defendant renewed the suppression/in limine motions, which were overruled. Defendant was convicted of the DUI offense charged, a stay of the sentence was filed, and this appeal ensued.

We will address defendant's assignments of error together for convenience because they all bear on the critical issue of whether defendant was deprived of her constitutional and statutory right to counsel under the circumstances presented.

"I. The trial court committed reversible error when it overruled defendant-appellant's motion to suppress/motion inlimine when the record demonstrates that defendant-appellant was denied her right to be permitted forthwith facilities to communicate with an attorney as provided by O.R.C. 2935.20.

"II. The trial court committed reversible error when it overruled defendant-appellant's motion to suppress/motion in limine when the record demonstrates that the arresting officers advised defendant-appellant against obtaining an attorney in violation of O.R.C. 2935.20.

"III. The trial court committed reversible error when it overruled defendant-appellant's motion to suppress/motion inlimine when the case law interpreting O.R.C. 2935.20 demonstrates that the penalty for a violation of 2935.20 should be suppression of the blood-alcohol test.

"IV. The trial court committed reversible error when it overruled defendant-appellant's motion to suppress/motion inlimine when the record demonstrates that the questioning of defendant-appellant by the police officers violated defendant-appellant's due process rights as guaranteed by the Ohio Constitution and the Fourteenth Amendment to the United States Constitution."

It is undisputed that defendant expressed a desire for an attorney before refusing to sign a waiver of rights form presented by the officers. This request was disregarded by the officers, and the booking process continued. When confronted by the prospect of the breathalyzer test and the implied consent form one hour and fifteen minutes after her arrest, she expressed dismay at having to make such a decision without the advice of counsel. Under these circumstances, we find the court erred in not suppressing the results of the test.

R.C. 2935.20 confers the right to counsel after arrest:

"After the arrest, detention, or any other taking into custody of a person, with or without a warrant, such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state, or to communicate with any other person of his choice for the purpose of obtaining counsel. * * * No officer or any other agent of this state shall prevent, attempt to prevent, or advise such person against the communication, visit or consultation provided for by this section. * * *"

It seems well settled under Ohio law that there is noSixth Amendment constitutional right to counsel prior to taking a breathalyzer test. McNulty v. Curry (1975), 42 Ohio St.2d 341, 345, 71 O.O.2d 317, 319,328 N.E.2d 798, 801-802; Siegwald v. Curry (1974), 40 Ohio App.2d 313,314, 69 O.O.2d 293, 293-294, 319 N.E.2d 381, 382-383;Snavely v. Dollison (1979), 61 Ohio App.2d 140, 141, 15 O.O.3d 244, 244-245, 400 N.E.2d 415, 415-416; CIM of Univ. Hts. v. Ward (June 19, 1975), Cuyahoga App. No. 33984, unreported; State v.Spencer (Aug. 28, 1987), Geauga App. No. 1343, unreported, 1987 WL 16296; State v. Kucsma (Dec. 31, 1987), Lake App. No. 12-142, unreported, 1987 WL 32734.

However, we find that the trial court should have granted the motion in limine and excluded the breathalyzer results. Defendant has a statutory right to counsel aside from her constitutional guarantees. Under the circumstances presented here, once the officer heard the defendant say she was "scared," realized this was a "real big serious thing," and "I think I should have an attorney," he was obliged to offer "forthwith facilities to communicate with an attorney." Any other course of action or delay does not comport with the letter or purpose of the statute.

In Raine v. Curry (1975), 45 Ohio App.2d 155, 158, 74 O.O.2d 171, 173, 341 N.E.2d 606, 606-608, the court quotes from the opinion of Judge Robert E. Holmes in the case of Crabtree v.Curry (July 30, 1974), Franklin App. No. 74AP-86, unreported, at 4:

"``The foregoing demonstrates a lack of understanding by the officer of his mandatory statutory obligation under R.C. 2935.20 to forthwith afford to an arrested person facilities to communicate with an attorney[.] This means that facilities for communication with an attorney must be furnished immediately upon request and the officer may not delay until it suits his convenience, his paperwork is done, or slating is completed. The testimony of the officer indicates [that] he violated R.C.2935.20 in this instance.'" (Emphasis sic.)

Once the defendant expressed the desire for an attorney, the booking procedure should have stopped and her request should have been honored.

In State v. Fullan (Apr. 5, 1991), Portage App. No. 90-P-2192, unreported, 1991 WL 54152, a similar situation was presented. Defendant was stopped for driving with one headlight, discovered to be intoxicated, and arrested for DUI and read his rights. At the station house, he asked to call his father to contact an attorney, and it was refused before he took the breathalyzer test. The appellate court held that the refusal to grant defendant's motion in limine was error and stated as follows:

"However, appellant does have a statutory right to counsel upon arrest, detention or being taken into custody under R.C.2935.20, which goes beyond the right to counsel guaranteed by the state and federal constitutions. Kucsma, supra, at 5. Whether or not there has been a denial of the statutory right to counsel is decided on a case by case basis.Id. at 8.

"In the instant case, appellant did not expressly request to contact an attorney but, instead, requested to contact his father. R.C. 2935.20 mandates that appellant be permitted to ``* * * communicate with any other person of his choice for the purpose of obtaining counsel. * * *'

"The trial court overruled appellant's motion in limine, stating that, ``[appellant] did not ask to speak with an attorney but with his father and the statute in question does not provide for a right to contact a relative. It provides you the right to consult with counsel. * * *'

"The statute on its face refutes the trial court's finding. R.C. 2935.20 grants appellant the right to contact any other person, including his father, for the purpose of obtaining counsel.

"It is clear from the foregoing that appellant was denied his statutory right and, therefore, the motion in limine should have been granted and the results of the breathalyzer should have been excluded." Spencer, supra, at 2 (Ford, J., concurring).

We also find that the officers' failure to provide defendant with access to an attorney not only violated R.C. 2935.20, but also violated defendant's Fourteenth Amendment right to due process. The Fourteenth Amendment states that it is unconstitutional to "deprive any person of * * * liberty * * * without due process of law." Furthermore, the Supreme Court has held that "[i]t is clear that the Due Process clause applies to the deprivation of a driver's license by the state." Dixon v.Love (1977), 431 U.S. 105, 112, 97 S.Ct. 1723, 1727,52 L.Ed.2d 172, 179-180. The Supreme Court went on to state:

"Suspension of issued licenses * * * involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment."Id., citing Bell v. Burson (1971), 402 U.S. 535, 539,91 S.Ct. 1586, 1590, 29 L.Ed.2d 90, 94.

Since the officers did violate defendant's constitutional right, the lower court erred in not excluding the evidence of the breathalyzer test results. This holding has been advanced by other Ohio appellate courts. State v. Scarlett (Sept. 3, 1987), Montgomery App. No. 10378, unreported, 1987 WL 16568 (court held that defendant's "constitutional guarantee to due process of law was denied her and that the appropriate sanction is suppression of the breath-alcohol test results"); State v. Larson (Dec. 12, 1988), Fairfield App. No. 16-CA-88, unreported, 1988 WL 138429 (court held that suppression was appropriate remedy as "due process and fundamental fairness require that a person held on suspicion of drunk driving who requests the opportunity to communicate with counsel before submitting to, or refusing, a chemical test must be permitted to do so, as long as such communication does not interfere with the timely administering of the test"). Other courts have held suppression of the test results is the correct remedy for violating R.C. 2935.20 without even reaching the constitutional violation argument. Fullan,supra ("having concluded that appellant's statutory right was violated and that the evidence should have been excluded, it is not necessary for this court to further address whether the statutory violation results in a constitutional due process violation"); Lexington v. Reddington (1993), 86 Ohio App.3d 643,621 N.E.2d 758 (the court held that suppression is the correct remedy for a violation of R.C. 2935.20 because "to hold otherwise would render R.C. 2935.20 utterly meaningless").

We recognize that the suspension of booking procedures may implicate an interference with the statutory requirement that the breathalyzer test must be given within two hours of arrest to protect its efficacy. R.C. 4511.19 and 4511.191. By our holding today, we are not taking a position as to whether or not the right to counsel supersedes the two-hour requirement. We find the logic of the court in State v. Scarlett, supra, at 18-19, to be compelling:

"We are in complete agreement with the Courts of Appeal[s] of New York and Maryland that the right to confer with counsel about whether to submit to a blood-alcohol test cannot be extended to the point of frustrating the lawful object of obtaining a breath sample within two hours of the time of arrest or a refusal to submit to a blood-alcohol test within two hours of the time of arrest. See R.C. 4511.19, 4511.191.

"In other words, consistent with his right to due process, an individual can be expected to make the decision unaided by counsel, if it can be fairly said that, given the particular circumstances, access to counsel would prevent administering a timely test, or obtaining a timely refusal.

"We further agree that broad deference must be given to the determination of the police that denial of the requested right of access to counsel was reasonably necessary for the timely administration of the blood-alcohol test.

"In this case, given the broadest deference to the police, we fail to see how Scarlett's request would have impeded them in obtaining either a timely blood-alcohol sample or a timely refusal. Scarlett was stopped at 12:55 a.m. The test was given at 2:20 a.m., one hour and twenty-five minutes after the initial stop. Although she was required to wait until after the test was administered, she was still able to contact her attorney by 2:45 a.m., ten minutes before the elapsing of the two-hour period. Had she been allowed to make her phone call prior to deciding whether to take the test, the call would have been made at sometime around 2:20 a.m., 35 minutes before the two-hour period elapsed.

"Under these circumstances, we conclude that Scarlett's constitutional guarantee to due process of law was denied her and that the appropriate sanction is suppression of the breath-alcohol test results. * * *"

Similarly, in the instant case, defendant was arrested at 1:43 a.m. and the breathalyzer test was not administered until 3:00 a.m. Had her request for counsel been heeded at the outset of the booking procedures, there would have been ample time to allow attorney-client communication and still proceed with the test. Even if the time available was not adequate to allow the attorney's physical presence, the defendant's rights could have been preserved by telephone communication.

We do not find persuasive the city's argument that defendant did not press her request for an attorney when the breathalyzer test was proposed. Her earlier request for an attorney having been ignored, she was under the pressure of "time constraints" (the two-hour period) that were not of her making. The police officer should have "forthwith" offered her a telephone to call her attorney early in the process. They cannot reward that failure by later arguing that the time was too short.

Defendant's assignments of error are sustained.

The judgment of conviction is reversed and the case is remanded for a new trial consistent with the principles enunciated in this opinion.

Judgment reversedand cause remanded.

MATIA, P.J., concurs.

NUGENT, J., dissents.