State v. Clark

State v. Clark  (95-208); 164 Vt 626; 671 A.2d 1276

[Filed 22-Dec-1995]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-208

                            NOVEMBER TERM, 1995


State of Vermont                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     District Court of Vermont,
                                     }     Unit No. 2, Chittenden Circuit
Timothy T. Clark                     }
                                     }     DOCKET NO. 423-10-94Cncs


       In the above-entitled cause, the Clerk will enter:

       The State appeals a district court order, suppressing evidence of
  defendant's refusal to provide an evidentiary breath sample, based on a
  finding of ineffective assistance of counsel. We reverse.

       On October 12, 1994, a Vermont State Trooper observed defendant's
  vehicle swerving on Interstate 89 in South Burlington.  The officer stopped
  defendant and detected a strong odor of alcohol on his breath.  Defendant
  refused roadside breath screening and manual dexterity tests.  The officer
  placed him under arrest and transported him to the police station for DWI
  processing.

       While in custody at the police barracks, the officer informed
  defendant of his Miranda rights and his rights under Vermont's Public
  Defender Statute, 13 V.S.A. §§ 5234, 5237.  At the conclusion of this
  instruction, defendant asked to speak with his attorney.  Unable to reach
  defendant's attorney of choice, the officer then contacted the on-call
  public defender.  Defendant conversed with the public defender.

       The officer then informed defendant of the rights and penalties under
  Vermont's implied-consent law in accordance with 23 V.S.A. § 1202(d). 
  Among the rights contained in the implied-consent law is the right to
  consult an attorney prior to deciding whether or not to submit to an
  evidentiary breath test.  Id. § 1202(c).  Exercising this right, defendant
  again spoke with the public defender.  Defendant terminated his
  conversation with the attorney, stating that the attorney was "not
  acceptable" and that he was "not going to agree" with the attorney's advice
  regarding the license suspension consequences for refusing to give an
  evidentiary breath sample. Defendant did not, however, ask to speak with a
  different attorney, nor did he ask for clarification of the suspension
  period.  Moreover, defendant signed the implied-consent form that correctly
  informed him of the consequences of refusal.  He again refused to give an
  evidentiary breath sample, and the thirty-minute period during which he was
  allowed to give a sample expired.

       Defendant requested transportation to a nearby hospital so that he
  could obtain an independent blood analysis.  On the way to the hospital, he
  expressed surprise when the officer explained that his refusal would lead
  automatically to a six-month suspension of his driver's license.  He asked
  the officer to return him to the police barracks so that he could give a
  breath sample.  The officer refused.

 

       On December 21, 1994, the district court convened a final civil
  license-suspension hearing.  Defendant testified at the hearing that the
  public defender misinformed him about the penalty for refusing to submit to
  the test.  He testified that the attorney told him that the penalty for a
  refusal was a thirty-day license suspension while taking the test and
  failing would result in a ninety-day suspension.1  Claiming that he had
  relied on this faulty information to his detriment, defendant moved to
  suppress his refusal on the ground that he was denied effective assistance
  of counsel.  The district court concluded that the statutory right to
  counsel under the implied-consent law is coextensive with the
  constitutional right to counsel.  The court then conducted a Sixth
  Amendment analysis of defendant's claim, concluding that he had been denied
  effective assistance of counsel.  Accordingly, the court granted
  defendant's motion to suppress.

       The State appeals, arguing that (1) a claim of ineffective assistance
  of counsel may not be brought at a civil license-suspension hearing where
  there is no constitutional right to counsel, (2) the district court erred
  when it granted the motion to suppress based on the public defender's
  inaccurate advice because the arresting officer complied with Vermont's
  implied consent law, and (3) suppression of a motorist's refusal to provide
  a breath sample is not the appropriate remedy for inaccurate advice
  rendered during consultation under the implied-consent law.

       The State's first argument on appeal is that the suppression of a
  motorist's refusal to provide an evidentiary breath sample may not be
  predicated upon alleged ineffective assistance of counsel because there is
  no constitutional right to counsel at the license-suspension hearing or at
  the time the breath sample is requested.  We agree.

       The nature of a license-suspension proceeding is civil, not criminal. 
  State v. O'Brien, 158 Vt. 275, 277, 609 A.2d 981, 982 (1992).  Thus, the
  constitutional protections available in criminal proceedings do not attach
  to the statutory right to counsel under 23 V.S.A. § 1202(c), whether at the
  license-suspension hearing, O'Brien, 158 Vt. at 277-78, 609 A.2d  at 982-83,
  or at the time the breath sample is requested, State v. West, 151 Vt. 140,
  143, 557 A.2d 873, 875 (1988).

       A claim of ineffective assistance of counsel rests on the
  constitutional right to counsel under the Sixth and Fourteenth Amendments. 
  Strickland v. Washington, 466 U.S. 668, 687 (1984).  At a proceeding where
  there is no constitutional right to counsel, such a claim is inapplicable. 
  Because we conclude that the right to counsel under 23 V.S.A. § 1202(c) is
  exclusively statutory, not constitutional, a claim of ineffective
  assistance of counsel may not be advanced in a license-suspension
  proceeding.  Thus, the district court's Sixth Amendment analysis was
  erroneous.

       The State next contends that suppression of defendant's refusal to
  provide an evidentiary breath sample was not warranted, even if the public
  defender's advice was incorrect, because the arresting officer informed
  defendant of his right to counsel as required by 23 V.S.A. § 1202(d). 
  Again, we agree with the State.

       The trial court granted defendant's motion to suppress because the
  advice he received

 

  from the public defender was inaccurate.   The statute, however, does not
  require that the advice given by counsel be accurate.  Rather, the statute
  requires that defendant be "`afforded a meaningful opportunity to consult
  with counsel.'"  State v. George, 161 Vt. 615, 615, 640 A.2d 26, 27 (1994)
  (mem.) (quoting Pfeil v. Rutland District Court, 147 Vt. 305, 310, 515 A.2d 1052, 1056 (1986)).  The record demonstrates that the officer did precisely
  what the statute requires.  Defendant was given a "meaningful opportunity"
  to consult with an attorney, and he took advantage of that opportunity by
  speaking with the public defender on two occasions.  The fact that he was
  dissatisfied with the advice he received and that the advice was incorrect
  does not undermine the meaningful character of the opportunity to consult
  with an attorney.  Allowing suppression of refusal when the advice given by
  counsel is inaccurate would be tantamount to making the State the guarantor
  of the attorney's advice.  Aside from being unworkable, such a requirement
  is beyond the scope of the statute, and we will not require more than the
  statute. See State v. Lynaugh, 158 Vt. 72, 74, 604 A.2d 785, 786 (1992)
  ("Defendant received all the advice required by [23 V.S.A.] § 1202(d), and
  we decline to require more.").

       Because we conclude that a claim of ineffective assistance of counsel
  is inapplicable in the context of a license-suspension proceeding, we need
  not address whether suppression is the appropriate remedy.

       Reversed and remanded.




                              BY THE COURT:



                              _______________________________________
                              Frederic W. Allen, Chief Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice
Publish
                              _______________________________________
                              James L. Morse, Associate Justice
Do Not Publish
                              _______________________________________
                              Denise R. Johnson, Associate Justice