Supreme Court of Pennsylvania Affirms No Right to Counsel for DUI Chemical Testing

http://www.nefflawoffices.com/attorney-profile.phpThe right of a criminal defendant to have the assistance of counsel in his defense is granted in the Bill of Rights, via the Sixth Amendment of the United States Constitution. The Sixth Amendment right to counsel differs from the Fifth Amendment right to counsel which is granted to a suspect via Miranda warnings. The Sixth Amendment right is offense specific, meaning that during a critical stage of the trial process, no governmental agent may question the defendant about the crime for which he is charged, without an attorney present. The Fifth Amendment right to counsel, however, applies to any potentially self-incriminating questioning by a known police officer, while the suspect is in custody, if the suspect has not knowingly and voluntarily waived his Miranda rights; the right to remain silent, anything said by the suspect may be used against him in Court, the right to an attorney, and that an attorney will be provided if the suspect cannot afford one. In summary, the Fifth Amendment right to counsel applies in situations where there are cops, custody, and interrogation. The Sixth Amendment, however, does not apply until the first critical stage of the trial process.

On appeal, a man convicted of driving under the influence challenged the admission of a blood-alcohol content test which was used as evidence against him at his trial. The man had been involved in a single car accident, and when police arrived, the man was observed to have had bloodshot eyes, slurred speech, and the smell of alcohol. The man was taken to a hospital where a blood test was obtained without a warrant or the presence of counsel. The blood test showed a BAC of 0.223%, nearly three-times the legal limit and meriting charges of DUI of the highest rate of alcohol; carrying the most severe penalties under the DUI statute.

Appealing his conviction, the man argued that the blood test at the hospital constituted a critical stage at which the Sixth Amendment right to counsel, via Article I, section 9 of the Pennsylvania Constitution, attached. Under Pennsylvania’s implied consent law, any person who drives, operates, or is in actual physical control of the movement of a vehicle has been deemed to have given consent to chemical tests of blood, breath, or urine when an officer reasonably suspects the person is driving under the influence. Therefore, rights under Miranda would not apply as the person has been deemed to consent to the testing. The question for the Court was whether the blood test constituted a critical stage in which the man was entitled to counsel under the Sixth Amendment.

The Court cited to Rothgery v. Gillespie County, Texas, a 2008 case decided by the Supreme Court of the United States, which held “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.” The Court determined that the Pennsylvania Constitution is coterminous with the Sixth Amendment, providing no further protection. On this basis, the Court concluded that the blood test taken in the hospital was part of an “evidence gathering” investigation, consented to by the man via the Implied Consent statute, and that it was not a critical stage for Sixth Amendment purposes. As noted in the opinion, the only state which does recognize a federal constitutionally-based right to counsel prior to chemical testing is the state of Maryland. A limited right to counsel also exists in Alaska, Missouri, North Carolina, North Dakota, and Vermont. Minnesota and Oregon provide for the right to counsel prior to chemical testing in their respective State Constitutions as well.

Criminal defense is a complicated and often confusing area of the law. For a complete explanation of the full panoply of rights available, one should consult an experienced criminal defense attorney. For over twenty years, the Law Offices of Marc Neff has been providing advice and counsel to those charged with a crime.