One of the questions that I am most frequently asked is this: Am I entitled to speak with a lawyer before I take a breath test in Georgia? The answer is, quite simply, no. The answer to this question is stated in Rackoff v. State, 281 Ga. 306, 308-09, 637 S.E.2d 706, 708-09 (2006):
In Oyler v. State, 175 Ga.App. 486(1), 333 S.E.2d 690 (1985), the court was confronted again with the assertion that a driver was entitled to consult with an attorney before taking a breath test. However, Oyler was not concerned with the suspension of a driver's license; it involved a conviction for driving under the influence. Nevertheless, the court simply applied Hardison, and held that a driver is not entitled to speak with an attorney before taking a breath test. Id. at 487, 333 S.E.2d 690. Thus, the Oyler court did not examine the issue under a criminal law lens.
In subsequent cases, the Court of Appeals cited and applied the holdings reached in Cogdill, Hardison, and Oyler, regardless of whether the cases arose in an administrative or criminal setting. See State v. Boger, supra; Bowman v. Palmour, supra. In all of these cases, the Court of Appeals reached the correct conclusion: a driver is not entitled to consult with an attorney before taking a breath test. This rule applies to cases involving the suspension of a driver's license. And, for the reasons set forth below, it applies in a criminal context to cases involving driving under the influence.
It is beyond cavil that a prosecution for driving under the influence is a criminal prosecution, OCGA § 40–6–391, which gives rise to the right to counsel under the Sixth Amendment1 and the Georgia Constitution.2 But the right to counsel does not attach automatically upon arrest.3 In fact, the Sixth Amendment right to counsel does not come into play until the criminal process has progressed to a “critical stage” after the initiation of adversary judicial proceedings. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); see O'Kelley v. State, 278 Ga. 564, 604 S.E.2d 509 (2004) (an initial appearance hearing is a formal legal proceeding at which right to counsel attaches even though it is not often a critical stage). And Georgia's constitutional right to counsel does not attach unless the proceeding constitutes a “critical stage.” Ballard v. Smith, 225 Ga. 416, 418, 169 S.E.2d 329 (1969). A critical stage in a criminal proceeding is that point at which rights may be lost, defenses waived, privileges claimed or waived, or the outcome of the case can be substantially affected. Fortson v. State, 272 Ga. 457, 458, 532 S.E.2d 102 (2000); Ballard v. Smith, supra.
A decision as to whether to take a breath test does not signal the beginning of a formal adversary hearing. Tennessee v. Frasier, 914 S.W.2d 467 (Tenn.1996) (driver who was arrested without a warrant was not entitled to consult with counsel before deciding whether to submit to breath test because formal adversary proceedings had not been initiated). Even if it did, it cannot be said to be a critical stage of the proceeding. Forte v. State, 759 S.W.2d 128 (Tex.Crim.App.1988) **709 (a breath test is not a critical stage which implicates right to counsel under Texas Constitution), overruled on other grounds, McCambridge v. State, 778 S.W.2d 70 (Tex.Crim.App.1989). After all, the officer who administers the test must advise the driver of his implied consent rights pursuant to OCGA § 40–6–392(a)(4). Thus, when it comes to consulting with a driver, there is very little that a lawyer could add that would substantially affect the fairness of the trial. See State v. Jones, 457 A.2d 1116, 1119 (Me.1983). As one court succinctly said, the decision to submit to a breath test “is not essentially a lawyer's decision.” (Punctuation omitted.) Mogard v. City of Laramie, 32 P.3d 313, 324 (Wyo.2001).
Rackoff was not entitled to consult with a lawyer before deciding whether to submit to a breath test under the Sixth Amendment or the Georgia Constitution. It follows that it was not error to refuse to exclude the results of the breath test.
However, consider what happens to the refusal of state-administered test when Mirandaadvisements are given subsequent to a Georgia DUI arrest:
The trial court concluded that the arresting officer led Boger to believe that he had a right to an attorney prior to being required to submit to the breath test, even though it is well established that there is no right to have counsel present when requested to submit to any test of the breath, blood, or urine.4 After several failed attempts to get Boger to properly breathe through the alco-sensor, the colloquy between the officer and Boger was as follows:
Officer: Okay. Which part of “blow steady through the tube” do you not understand? Okay? It's real simple, my 3–year–old can do this—my 3–year–old nephew. Take a big—.
Boger: I feel like—.
Boger:—I need to talk to a lawyer.
Officer: Okay; do you want a lawyer?
Boger: Can I have a lawyer?
Officer: Sure; after I arrest you and take you down to the jail and all that good stuff.
Boger: Okay.Officer: Okay. Do you want one?
Boger: Let's do it that way.
Officer: Okay; you got one. Turn around.
The officer then placed Boger under arrest and read him his implied consent rights.
Here, the officer's response to Boger's request for an attorney was for the most part a correct statement of law.5 The officer's explanation informed Boger that he was not entitled to an attorney when the officer repeatedly requested that he breathe into the alco-sensor, but that he could have an attorney once he was arrested and taken to jail. Therefore, Boger's refusal to continue the alco-sensor test could not have been based on a belief that he was entitled to an attorney prior to taking the test. The court erred in excluding evidence of Boger's failure to submit to the alco-sensor test and in granting all motions on this basis.3
After Boger was arrested and taken to jail, the officer prepared the Intoxilyzer machine and Boger refused to submit to this test without an attorney. At this point, Boger could have believed that he was then entitled to an attorney, as previously explained by the officer: “Sure [you can have a lawyer]; after I arrest you and take you down to the jail and all that good stuff.” Thus, the statement, although substantially correct, was misleading in that after Boger was arrested and at the jail, he believed that he was then entitled to counsel prior to complying with the implied consent law and taking the Intoxilyzer test (when no such right existed).6 For this reason, the court did not err in excluding Boger's refusal to submit to the Intoxilyzer test.7
Simply put, any evidence involving the alco-sensor test given at the scene of the stop was improperly suppressed, but evidence as to the Intoxilyzer test provided at the police station should be suppressed as Boger, misled by the officer's statement, believed that he was entitled to an attorney prior to submitting to such test.
Therefore, we reverse the court's grant of Boger's motion in limine to exclude defendant's alleged incriminatory statements and acts, all evidence gathered as a result of an unlawful seizure, and to suppress evidence gathered in violation of defendant's request for counsel (with the exception of any evidence as to the Intoxilyzer test). We also reverse the grant of Boger's motion to exclude any alleged refusal to submit to the alco-sensor test, but affirm the exclusion of Boger's failure to submit to the Intoxilyzer test.
State v. Boger, 253 Ga. App. 412, 412-13, 559 S.E.2d 176, 177-78 (2002)
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