State of Iowa v. John Arthur Senn Jr.

IN THE SUPREME COURT OF IOWA

No. 15–0624

Filed June 24, 2016

STATE OF IOWA,

Appellee,

vs.

JOHN ARTHUR SENN JR.,

Appellant.

Appeal from the Iowa District Court for Polk County, Kevin A.

Parker and Gregory D. Brandt, District Associate Judges.

Defendant challenges the constitutionality of Iowa Code section

804.20, contending a right to counsel attached under article I, section 10

of the Iowa Constitution before criminal charges were filed, which

entitled him to a private phone call with counsel before deciding whether

to submit to a chemical breath test. DISTRICT COURT JUDGMENT

AFFIRMED.

Brandon Brown and Tammy Westhoff Gentry of Parrish Kruidenier

Dunn Boles Gribble Gentry Brown & Bergmann, L.L.P., Des Moines, for

appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, John P. Sarcone, County Attorney, and Maurice Curry,

Assistant County Attorney, for appellee.

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WATERMAN, Justice.

Iowa Code section 804.20 (2013) provides a limited statutory right

to counsel that allows persons who have been arrested to make phone

calls to lawyers or family members and to meet alone and in private with

their lawyer at the place of detention. While the statute allows private in-

person consultations, it permits the police officer or jailer to be present

for the detainee’s phone calls. We must decide whether this statute is

unconstitutional as applied to a person arrested, but not yet formally

charged, for operating a motor vehicle while intoxicated (OWI) who wants

to speak privately by phone with a lawyer before deciding whether to

submit to a chemical breath test.

The defendant in this case, detained for suspicion of drunk driving,

was at the police station on the phone with a lawyer getting advice

regarding the implied-consent procedure 1 and his time-sensitive decision

whether to refuse the breathalyzer test. The arresting officer declined the

defendant’s request for privacy during the phone call but told the

defendant he could have privacy if the lawyer came to the station. No

lawyer arrived in time, and the defendant submitted to the test, which

showed his blood alcohol level at .140. Eleven days later, the State

charged him with OWI, and he moved to suppress the test result,

claiming he was entitled under article I, section 10 of the Iowa

Constitution to a private phone consultation with counsel before

1See Iowa Code § 321J.6 (“A person who operates a motor vehicle in this state

under circumstances which give reasonable grounds to believe that the person has been

operating a motor vehicle [while intoxicated] is deemed to have given consent to the

withdrawal of specimens of the person’s blood, breath, or urine and to a chemical test

or tests of the specimens for the purpose of determining the alcohol concentration or

presence of a controlled substance or other drugs . . . .”).

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chemical testing. The district court disagreed, and he was convicted. We

retained his appeal.

For the reasons explained below, we conclude that the right to

counsel under the Iowa Constitution, as under the Sixth Amendment to

the United States Constitution, does not attach until formal criminal

charges are filed and had not attached at the time this defendant was

asked to submit to the chemical breath test. Most other state supreme

court decisions are in accord. Because no Iowa or federal constitutional

right to counsel was violated and the defendant’s limited statutory right

to counsel was honored, we affirm the district court’s judgment of

conviction.

I. Background Facts and Proceedings.

In the early morning hours of Labor Day, September 1, 2014,

Officer Brian Cuppy was on patrol in downtown Des Moines when he saw

a truck eastbound on Court Avenue stop for a red light in the middle of

the intersection with Water Street with its “back tires . . . more than five

feet past the cross walk.” Officer Cuppy followed the truck, activated his

police cruiser’s flashing lights, and initiated a traffic stop nearby. The

driver, John Arthur Senn Jr., age twenty-nine, told Officer Cuppy that he

did not realize he had stopped in the middle of the intersection. Officer

Cuppy noted that Senn had bloodshot watery eyes, slurred speech, and a

“staggered gait” and smelled of alcohol. Senn initially denied that he had

been drinking that night. Officer Cuppy administered field sobriety tests,

which Senn failed. Senn then admitted that he had been drinking but

said he had stopped over twenty minutes earlier. Senn took a

preliminary breath test, which showed an alcohol concentration of 0.165,

more than double the legal limit. Senn was arrested for failing to obey

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the traffic control signal and for operating while intoxicated and

transported to the Des Moines metro police station for chemical testing.

Around 2:30 a.m., Officer Cuppy led Senn to the DataMaster

testing room and gave Senn a copy of the implied-consent advisory.

Senn read the consent. Officer Cuppy then read the advisory aloud to

Senn. Officer Cuppy asked if he had any questions, and Senn replied,

“No sir.” Officer Cuppy then read Senn his statutory rights under Iowa

Code section 804.20. At 2:34 a.m., Officer Cuppy requested a breath

specimen.

Senn asked to call a lawyer. Officer Cuppy remained in the room

while Senn made phone calls. Senn had trouble contacting counsel.

Officer Cuppy offered to let Senn use the phone book. Senn declined.

Around 2:46 a.m., Officer Cuppy asked if Senn was trying to call a lawyer

and offered the phone book again. Senn explained he had a lawyer, but

she had not answered her after-hours phone number. Senn eventually

reached an attorney at 2:49 a.m. Senn, in Officer Cuppy’s presence, told

the attorney on the phone he was being investigated for his “second first”

OWI. Senn explained that his first OWI was “relinquished at the state’s

expense” in 2009 or 2010. Senn answered the attorney’s questions.

Senn then asked Officer Cuppy for “attorney–client privilege please.”

Officer Cuppy responded that he could not have attorney–client privilege

while on the phone but that he could if the attorney came to the jail.

Senn repeated that comment to his attorney. Officer Cuppy explained

that Senn could not be left alone with the phone. Senn then asked

Officer Cuppy if he could have a family member visit. Officer Cuppy said

yes, “as long as they are here in time.”

Senn asked Officer Cuppy why he was stopped. Officer Cuppy

replied it was because he ran a red light. Senn told the attorney that he

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“did not run a red light.” Senn explained to the attorney that he worked

as an electrician, so his license was “imperative” to his work. Officer

Cuppy gave Senn a pen and paper to take notes while he was on the

phone. Senn described his criminal record. Senn asked the attorney to

come to the police station and said he was able to pay for the trip. Senn

offered to pay because he “wanted to make sure he was taken care of.”

Officer Cuppy then said Senn had thirty-two minutes left for private

consultation. Senn said he understood the consequences of his choice to

take or refuse the breathalyzer. Officer Cuppy told Senn this would be

his second revocation. Senn again offered to hire the attorney. Senn

asked Officer Cuppy what time he had been stopped, and Officer Cuppy

replied it had been 2:04 a.m. While Senn was on the phone, he said,

I’d like to expunge any legal options I have at this point

because I was downtown on a good faith gesture picking up

a friend, so it’s not like I was being—obviously I was legally

intoxicated, but . . . . I’m just saying that, yeah.

The attorney was unable to meet with Senn in person. Senn asked

the attorney if he should wait for someone from the firm to come, call a

family member, or do something else. Senn asked for attorney

references, and she gave him some. Their conversation ended at 3:17

a.m. Senn then tried to call the recommended attorneys and left

messages.

Officer Cuppy escorted Senn to the restroom upon his request.

When Senn returned, he called another lawyer and asked Officer Cuppy

for a glass of water. Officer Cuppy explained he could not have any

water until he decided whether he would take the breath test. Senn left

two more voice mails explaining his situation and asking for legal help.

Officer Cuppy told Senn that because of his prior license revocation, this

time his license would be suspended for one year if he failed the test and

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it would be suspended for two years if he refused to take the test. 2 Senn

called a friend to let him know he would be booked soon. He expressed

frustration about not being able to get an attorney to come to the station.

He said he was willing to pay $5000 but no one was willing to come. He

was afraid of losing his job. He said he was “playing for the good team”

and hoped the officer would let him go. At 3:39 a.m., Officer Cuppy told

Senn he had to make a decision. Senn consented to take the

breathalyzer test. At 3:41 a.m., Senn took the test, and his blood alcohol

content was 0.140.

Officer Cuppy submitted a complaint to the county attorney, and it

was approved at 6:14 a.m. Eleven days later, on September 12, Senn

was charged by trial information with operating while intoxicated in

violation of Iowa Code section 321J.2, a serious misdemeanor. On

November 20, Senn filed a motion to suppress, contesting the legality of

the stop, the officer’s compliance with section 804.20, and the

interference with his right to counsel under article I, section 10 of the

Iowa Constitution. Senn argued the phrase “in cases involving the life,

or liberty of an individual,” which does not appear in the Sixth

Amendment, showed the Iowa framers’ intent to provide a broader right

to counsel. Senn argued an implied-consent procedure is a critical stage

of the prosecution under the Iowa Constitution because it involves a

choice that has significant consequences for criminal liability.

The district court held a suppression hearing on December 5. At

the hearing, Senn’s counsel narrowed his motion to the right to counsel

2See Iowa Code §§ 321J.9(1)(b), .12(1)(b).

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under the Iowa Constitution. 3 Senn testified that when he called his

attorney, she advised him to assert his attorney–client privilege. Senn

did, but Officer Cuppy continued to listen to his side of the phone

conversation. Senn admitted on cross-examination that the police officer

told him that he could not have a confidential phone call but that the

attorney could come in person and speak privately with Senn at the

station. He agreed that Officer Cuppy never interrupted the phone call.

On December 10, the district court denied Senn’s motion to

suppress. The ruling stated,

All of the evidence that the defendant wishes to

suppress on constitutional grounds was obtained before

Senn was charged with the offense. The Iowa Constitutional

provision is similar to the U.S. Constitution. This court finds

that the phrase “life or liberty” deals with contempt

situations such as child support, civil infractions or Chapter

229 and Chapter 229A. Therefore, Section 10 does not apply

in this matter and will not provide a basis for excluding any

of the evidence. . . .

Further a request to perform field sobriety tests and

the request to submit to blood tests (includes breath testing)

are not interrogation. Questions normally attendant to

arrest and custody do not constitute interrogation.

State v. Hellstern, [856] N.W.2d [355] (Iowa 2014)

controls in this matter. The Defendant limited his argument

to only the constitutional issue. Therefore, this court will

not address the 804.20 issue.

(Citations omitted.) Following the denial of his motion, Senn waived jury

trial and was convicted on the minutes of testimony. He was fined $1250

plus surcharges and court costs and incarcerated for one year with all

but three days suspended.

We retained Senn’s appeal.

3Thiscourt’s decision in State v. Hellstern, 856 N.W.2d 355, 360–65 (Iowa 2014),

which addressed Iowa Code section 804.20, was filed two weeks before the suppression

hearing.

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II. Standard of Review.

The sole issue on appeal is whether Iowa Code section 804.20, by

permitting the police officer or jailer to be present while a detainee

suspected of drunk driving talks by phone with a lawyer about whether

to submit to chemical testing, violates the right to counsel under article I,

section 10 of the Iowa Constitution. We reiterate our well-established

standard of review:

We review constitutional challenges to a statute de novo. In

doing so, we must remember that statutes are cloaked with a

presumption of constitutionality. The challenger bears a

heavy burden, because it must prove the unconstitutionality

beyond a reasonable doubt. Moreover, “the challenger must

refute every reasonable basis upon which the statute could

be found to be constitutional.” Furthermore, if the statute is

capable of being construed in more than one manner, one of

which is constitutional, we must adopt that construction.

State v. Thompson, 836 N.W.2d 470, 483 (Iowa 2013) (quoting State v.

Seering, 701 N.W.2d 655, 661 (Iowa 2005)).

III. Analysis.

Senn asks us to hold for the first time that the right to counsel

under article I, section 10 of the Iowa Constitution attached before the

State filed criminal charges against him while he was under arrest for

suspicion of drunk driving and faced with the decision of whether to

submit to a chemical breath test that measures his blood alcohol level.

The State contends, and the district court ruled, that the constitutional

right to counsel had not yet attached and that the arresting officer

followed the governing statute by allowing Senn to speak by phone with a

lawyer in the officer’s presence. The statute, Iowa Code section 804.20,

states,

Any peace officer or other person having custody of any

person arrested or restrained of the person’s liberty for any

reason whatever, shall permit that person, without

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unnecessary delay after arrival at the place of detention, to

call, consult, and see a member of the person’s family or an

attorney of the person’s choice, or both. Such person shall

be permitted to make a reasonable number of telephone calls

as may be required to secure an attorney. If a call is made, it

shall be made in the presence of the person having custody of

the one arrested or restrained. If such person is intoxicated,

or a person under eighteen years of age, the call may be

made by the person having custody. An attorney shall be

permitted to see and consult confidentially with such person

alone and in private at the jail or other place of custody

without unreasonable delay. A violation of this section shall

constitute a simple misdemeanor.

(Emphasis added.)

Because this case arose from the invocation of implied consent, we

read section 804.20 together with the implied-consent provisions of Iowa

Code chapter 321J. See State v. Walker, 804 N.W.2d 284, 290 (Iowa

2011). Senn does not challenge the constitutionality of the implied-

consent statute. “[W]e have continuously affirmed that the primary

objective of the implied consent statute is the removal of dangerous and

intoxicated drivers from Iowa’s roadways in order to safeguard the

traveling public.” Id. (quoting Welch v. Iowa Dep’t of Transp., 801 N.W.2d

590, 594 (Iowa 2011)); see also Birchfield v. North Dakota, 579 U.S. ___,

___, ___ S. Ct. ___, ___, ___ L. Ed. 2d ___, ___ (2016) (“Drunk drivers take

a grisly toll on the Nation’s roads, claiming thousands of lives, injuring

many more victims, and inflicting billions of dollars in property damage

every year. To fight this problem, all States have laws that prohibit

motorists from driving with a blood alcohol concentration (BAC) that

exceeds a specified level.”); State v. Garcia, 756 N.W.2d 216, 220 (Iowa

2008) (stating that Iowa’s implied-consent law “was enacted to help

reduce the appalling number of highway deaths resulting in part at least

from intoxicated drivers” (quoting State v. Wallin, 195 N.W.2d 95, 96

(Iowa 1972)); State v. Comried, 693 N.W.2d 773, 775 (Iowa 2005) (“We

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have said the purpose of chapter 321J is ‘to reduce the holocaust on our

highways[,] part of which is due to the driver who imbibes too freely of

intoxicating liquor.’ ” (Quoting State v. Kelly, 430 N.W.2d 427, 429 (Iowa

1988).)). But section 804.20 applies to all arrestees, not just drunk

drivers. Walker, 804 N.W.2d at 290. Accordingly, this appeal has far-

reaching implications.

Section 804.20 provides “a limited statutory right to counsel before

making the important decision to take or refuse the chemical test under

implied consent procedures.” Hellstern, 856 N.W.2d at 361 (quoting

State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978)). Senn argues that the

provision in section 804.20 allowing the officer to be present for the

defendant’s phone call with a lawyer is unconstitutional because he was

entitled under article I, section 10 to a private telephone consultation

with his lawyer. We did not reach that constitutional argument in

Hellstern. Id. at 365. In Vietor, we rejected the argument that the right

to counsel under the Sixth Amendment had attached when the arrestee

was asked to submit to the breathalyzer test. 261 N.W.2d at 830. In

Walker, we reiterated that the “Sixth Amendment right to counsel had

not yet attached at the time [the detainee] was asked to perform the

breath test.” 804 N.W.2d at 293. We have also held the right to counsel

under the Iowa and Federal Constitutions does not apply to chemical

testing under administrative implied-consent procedures for revoking

drivers’ licenses. Swenumson v. Iowa Dep’t of Pub. Safety, 210 N.W.2d

660, 662 (Iowa 1973).

A. Constitutional Construction and Relevant Iowa Caselaw.

Article I, section 10 is entitled “Rights of persons accused.” It contains

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two clauses that do not appear in the Sixth Amendment, 4 which are

italicized below:

In all criminal prosecutions, and in cases involving the life, or

liberty of an individual the accused shall have a right to a

speedy and public trial by an impartial jury; to be informed

of the accusation against him, to have a copy of the same

when demanded; to be confronted with the witnesses against

him; to have compulsory process for his witnesses; and, to

have the assistance of counsel.

Iowa Const. art. I, § 10 (emphasis added). In State v. Young, we relied on

the textual differences between the state and federal provisions to hold

that the right to counsel under article I, section 10 applies to

misdemeanor charges with the possibility of imprisonment. 863 N.W.2d

249, 256–57, 281 (Iowa 2015). But we have never held the right to

counsel under the Iowa Constitution attaches before the filing of formal

criminal charges.

To the contrary, we have held the right to counsel under both the

State and Federal Constitutions “attaches at or after the initiation of

adversary proceedings against the defendant, whether by way of formal

charge, preliminary hearing, indictment, information, or arraignment.”

State v. Hensley, 534 N.W.2d 379, 382 (Iowa 1995). When deciding at

what stage in a case the right to counsel attaches, “[w]e interpret the

Iowa constitutional provision the same as the Sixth Amendment.” Id. at

4The Sixth Amendment to the United States Constitution, entitled “Jury trials

for crimes, and procedural rights,” states,

In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the

crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.

U.S. Const. amend. VI.

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382 n.3; see also State v. Wing, 791 N.W.2d 243, 254 (Iowa 2010)

(Cady, J., dissenting) (“Th[e] reading is the same for the right to a speedy

trial under both the Sixth Amendment to the United States Constitution

and article I, section 10 of the Iowa Constitution because the operative

language of the two provisions is the same.”); 5 State v. Majeres, 722

N.W.2d 179, 182 (Iowa 2006) (“Iowa’s right-to-counsel guarantee affords

no greater protection than the federal constitution . . . .”).

We begin our constitutional analysis with familiar principles of

interpretation:

First and foremost, we give the words used by the framers

their natural and commonly-understood meaning. However,

we may also examine the constitutional history and consider

the object to be attained or the evil to be remedied as

disclosed by the circumstances at the time of adoption.

Star Equip., Ltd. v. Iowa Dep’t of Transp., 843 N.W.2d 446, 457–58 (Iowa

2014) (quoting State v. Briggs, 666 N.W.2d 573, 578 (Iowa 2003)). Our

goal in state constitutional interpretation “is to ascertain the intent of the

framers.” Homan v. Branstad, 812 N.W.2d 623, 629 (Iowa 2012) (quoting

Rants v. Vilsack, 684 N.W.2d 193, 199 (Iowa 2004)).

We begin with the plain meaning of the words of article I, section

10, which by its terms applies to “criminal prosecutions” and in “cases

involving the life, or liberty of an individual.” Section 10 expressly

provides “the accused” with eight enumerated rights: (1) a speedy trial,

(2) a public trial, (3) a trial by an impartial jury, (4) to be informed of the

accusation; (5) to obtain a copy of the accusation, (6) to confront

witnesses, (7) to have compulsory process for the accused’s witnesses,

5The majority in Wing decided the case based on an interpretation of the speedy

indictment rule and corresponding statutes. Wing, 791 N.W.2d at 246, 249. The

majority noted the state and federal constitutional underpinnings of the speedy

indictment rule but did not rely on constitutional provisions to decide the case. See id.

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and (8) to have the assistance of counsel. The first seven of these

enumerated rights make sense only in the context of a formal legal

proceeding leading to a trial. The final enumerated right—to counsel—

should be construed together with the seven preceding rights in section

10 that ensure a fair trial in criminal proceedings and cases involving the

liberty of the accused. We read words not in isolation, but rather in

context, consistent with our canon of construction noscitur a sociis,

which “summarizes the rule of both language and law that the meanings

of particular words may be indicated or controlled by associated words.”

Peak v. Adams, 799 N.W.2d 535, 547 (Iowa 2011) (quoting 11 Richard A.

Lord, Williston on Contracts § 32:6, at 432 (4th ed. 1999)). This canon

has been “colorfully explained by Lord Macmillan as ‘words of a feather

flock together.’ ” Mall Real Estate, L.L.C. v. City of Hamburg, 818 N.W.2d

190, 202 (Iowa 2012) (Cady, J., dissenting) (quoting Hugh Pattison

Macmillan, Rt. Hon. Lord, Law and Language, Presidential Address to

the Holdsworth Club (May 15, 1931)). It makes sense to construe the

right to counsel as attaching when the State files charges in court. That

happened eleven days after Senn submitted to the chemical breath test

on the night of his arrest.

A prosecution is defined as “the commencement, including the

filing of a complaint, and continuance of a criminal proceeding, and

pursuit of that proceeding to final judgment on behalf of the state.” Iowa

Code § 801.4(13); accord State v. Dudley, 766 N.W.2d 606, 617–18 (Iowa

2009) (holding a criminal prosecution for the purposes of the Iowa

Constitution is coextensive with the statutory definition of “prosecution”);

see also Prosecution, Black’s Law Dictionary (10th ed. 2014) (defining

“prosecution” as “[a] criminal proceeding in which an accused person is

tried”). A “case” is a “civil or criminal proceeding, action, suit, or

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controversy at law or in equity.” Case, Black’s Law Dictionary; see also

Ex parte Grace, 12 Iowa 208, 214 (1861) (holding the legislature cannot

“fritter[] away or [break] down” a party’s rights by creating procedures in

place of “a suit, an action, [or] a trial”). A criminal proceeding does not

begin until a document is filed with the court.

The grammatical subject in article I, section 10 is “the accused.”

An “accused” is “one charged with an offense[, especially] the defendant

in a criminal case.” Accused, Webster’s Third New International

Dictionary (unabr. ed. 2002). The accused’s rights under this section

relate to “the accusation against him.” See Iowa Const. art. I, § 10; see

also State v. Burch, 199 Iowa 221, 228, 200 N.W. 442, 445 (1924)

(holding section 10 “requires the defendant ‘to be informed of the

accusation against him; to have a copy of the same when demanded’

[and t]he word ‘accusation’ manifestly refers to the indictment”).

By contrast, the other sections of article I provide rights more

broadly to “persons” or “the people.” See, e.g., Iowa Const. art. I, §§ 1–4,

7–9, 12 (concerning “persons” and “the people”); id. art. I, § 6 (“citizens”);

id. art. I, § 11 (“defendant”). We may infer from the unique word choice

in section 10—“the accused”—that the framers intended to limit the

rights therein to persons accused in formal criminal proceedings. See

Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 853 (Iowa 2014)

(plurality opinion) (“If the drafters intended the two concepts[—i.e.,

felonies and infamous crimes—]to be coextensive, different words would

not have been used.”).

If we reword section 10 to put the grammatical subject (“the

accused”) first, it reads,

[The accused i]n all criminal prosecutions, and in cases

involving the life, or liberty of an individual . . . shall have a

right to a speedy and public trial by an impartial jury; to be

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informed of the accusation against him, to have a copy of the

same when demanded; to be confronted with the witnesses

against him; to have compulsory process for his witnesses;

and, to have the assistance of counsel.

Our caselaw interpreting article I, section 10 follows the foregoing

construction. County of Black Hawk v. Springer, 58 Iowa 417, 418, 10

N.W. 791, 791 (1881) (“[T]his provision applies only to criminal

prosecutions, or accusations for offences against the criminal law, where

it is sought to punish the offender by fine or imprisonment.”); State v.

Collins, 32 Iowa 36, 40 (1871) (holding article I, section 10 “is a clear and

express declaration of the right of the defendant ‘in a criminal

prosecution’ ‘to be confronted with the witnesses against him’ ”

(emphasis omitted)); State v. Polson, 29 Iowa 133, 135 (1870) (“It will be

observed that the right secured by this provision to the accused, to be

confronted with the witnesses against him, is a personal right limited to

proceedings in criminal prosecutions, or where the life or liberty of the

citizen is involved.”).

We have frequently emphasized that article I, section 10 protects

the rights of an “accused.” Atwood v. Vilsack, 725 N.W.2d 641, 650–51

(Iowa 2006) (“It protects only the rights of an ‘accused,’ not the rights of

the individual facing potential civil commitment pursuant to Iowa’s

[sexually violent predator] statute.”); In re Johnson, 257 N.W.2d 47, 53

(Iowa 1977) (McCormick, J., concurring specially) (“Therefore we must

decide without assistance of prior decisions whether a juvenile alleged to

be delinquent is an ‘accused’ in a case involving the life or liberty of an

individual within the contemplation of the framers.”); State v. Sereg, 229

Iowa 1105, 1116, 296 N.W. 231, 236 (1941) (“Section[] 10 . . . of Article I

of the constitution of Iowa provide for certain rights which are

guaranteed to the accused . . . .”), overruled on other grounds by Pitcher v.

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Lakes Amusement Co., 236 N.W.2d 333, 338 (Iowa 1975); State v.

Henderson, 217 Iowa 402, 407, 251 N.W. 640, 642 (1933) (“The

constitution of this state guarant[e]es to every man accused of a crime

the right to be confronted with the witnesses against him . . . .” (Quoting

State v. Lugar, 115 Iowa 268, 270, 88 N.W. 333, 334 (1901).)); see also

State v. Duncan, 233 Iowa 1259, 1264, 11 N.W.2d 484, 486 (1943)

(Wennerstrum, J., dissenting) (“The question that is uppermost in the

mind of the writer of this dissent is whether or not . . . the trial was

afforded that degree of protection that our state constitution gives to an

individual charged with a crime.” (Emphasis added.)). Accordingly, we

have held that section 10 is not “applicable to [an] administrative

proceeding resulting in [a] license revocation.” Gottschalk v. Sueppel, 258

Iowa 1173, 1179, 140 N.W.2d 866, 869 (1966); 6 see also Swenumson,

210 N.W.2d at 662 (“It is well established that the state and federal

constitutional right to counsel does not apply to an [administrative]

implied consent proceeding.”).

Two of our earliest cases noted that the framers intended article I,

section 10 to provide rights to criminal defendants who are at risk of

incarceration. In Collins, a case decided fourteen years after the

adoption of the provision, our court described this provision as providing

“a clear and express declaration of the right[s] of the defendant ‘in a

criminal prosecution.’ ” 32 Iowa at 40. In Springer, decided twenty-four

years after the adoption of the provision, our court considered a

constitutional challenge to an adjudication of insanity:

6In Gottschalk, the opinion referred to the Iowa counterpart to the Sixth

Amendment of the Federal Constitution as article I, section 9. 140 N.W.2d at 869.

Based on the analysis in the opinion, the court was referring to article I, section 10.

See id. at 869–70.

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It is contended that before a person can be adjudged insane

he is entitled to the safeguards provided for in this section.

But it is clear to us that this provision applies only to

criminal prosecutions, or accusations for offences against

the criminal law, where it is sought to punish the offender by

fine or imprisonment. The inquest of lunacy by a board of

commissioners is in no sense a criminal proceeding. The

restraint of an insane person is not designed as punishment

for any act done. The insane are by the law taken into the

care and custody of the state for treatment for their

unfortunate infirmity. In our opinion, whatever may be

thought of the power of the legislative department of the

state to provide a special tribunal for the examination of

persons alleged to be insane, the safeguards and limitations

provided by our laws for the correction of any abuse which

may arise from the acts of the commissioners are ample for

the protection of the citizen.

58 Iowa at 418, 10 N.W. at 791–92. Senn was not a defendant in a

criminal prosecution when he took the chemical breath test. The State

was not seeking “to punish the offender by fine or imprisonment” when

Officer Cuppy administered the test. See id. Instead, the police were

investigating a crime. The State had not yet committed itself to

prosecution based on the investigation to that point. There was not yet a

prosecution or case against Senn.

We interpreted article I, section 10 again in State v. Newsom, in

which we held that a police agent who started a conversation with a

defendant represented by counsel violated article I, section 10. 414

N.W.2d 354, 359 (Iowa 1987). We tailored our holding to an accused

criminal litigant:

Independent of our sixth amendment analysis, we find that

defendant’s right to counsel under the Iowa Constitution,

article I, section 10, was also violated. In so doing, we rely

on our own interpretation of our state constitution. We

broadly construe this provision to effectuate its purpose,

which was to correct the imbalance between the position of

an accused and the powerful forces of the State in a criminal

prosecution. An accused, especially while in custody, is

vulnerable to the express or implied suggestion that

cooperation with those that hold the keys is in his or her

best interest. Legal counsel can equalize the positions of the

18

criminal litigants, but only if the client is completely free to

follow counsel’s advice. An accused that is represented by

counsel should not be subjected to a tug-of-war between

defense counsel and agents of the State. We hold that our

constitution prohibits agents of the State from initiating any

conversations or dealings with an accused concerning the

criminal charge on which representation of counsel has been

sought. A violation of this prohibition by the State shall

preclude any waiver, by an accused, of the right to counsel.

Id. (emphasis added). Again, this case cuts against Senn. Senn was not

an accused defendant in a criminal prosecution when he was making

phone calls from the police station.

In Young, our court determined that article I, section 10 provides a

right to counsel to persons charged with misdemeanor offenses with

potential incarceration. 863 N.W.2d at 281. We said,

[T]he language of the “all criminal prosecutions” provision of

article I, section 10 is directed toward providing counsel in

order to avoid the risk of conviction, not the risk of

incarceration. And if this choice of language means

anything, it is difficult to avoid the conclusion that the

phrase “all criminal prosecutions” was expressly designed to

avoid judicially imposed slicing and dicing of criminal

prosecutions into two or more categories. The bill of rights of

the Iowa Constitution embraces the notion of “inalienable

rights,” not rights that shrink and disappear based upon

currently fashionable transient pragmatic assessments.

Id. at 278 (citations omitted). We noted,

While it may be that the “cases” language amounts to

constitutional support for a right to counsel in qualifying

civil contexts, it also strongly suggests that if a right to

counsel exists in civil cases in which “liberty” is involved, it

also must exist in criminal prosecutions in which “liberty” is

also at stake.

Id. at 279 (emphasis added). When we discussed the “cases” clause, we

focused on prosecutions, not investigations that precede formal charges.

The State had not filed criminal charges against Senn at the time he was

deciding whether to submit to the chemical breath test. Therefore, he

was not entitled to counsel under article I, section 10.

19

We have only found one case applying article I, section 10 in the

absence of a formal criminal prosecution. In Grace, the court found that

a debtor was unconstitutionally held in contempt after a judge acting

pursuant to a statute put the debtor in jail for refusing to give the money

in his pocket to satisfy a judgment. 12 Iowa at 212. We found the

statute was unconstitutional, holding,

If [the statute’s effects] can be permitted, then we do not see

how far the legislature might not go, in providing for the trial

of issues without a jury, their determination, and for the

imprisonment of the party who failed to comply with the

finding.

Id. at 216. Senn’s argument is not supported by Grace because the

debtor in that case was the civil defendant in the underlying execution

on a judgment. A district court had issued the execution order on the

creditor’s request. In contrast, Senn was not involved with the court

system when he was asked to submit to a chemical breath test.

Therefore, his article I, section 10 rights had not attached.

Our caselaw indicates Senn did not have a right to counsel at the

time of his chemical breath test. However, to answer Senn’s contention

that the right should have attached at that time, we now go on to

consider whether there is any historical support for his claim in the

drafting of the constitutional provision. We will then consider whether

the constitutions and caselaw of other jurisdictions provide any support

for his interpretation of our state constitution.

B. The Drafting History of Article I, Section 10. We next

review the drafting history of article I, section 10 to put its origins in

proper historical context and thereby evaluate Senn’s claim that it was

intended to provide a broader right to counsel than the Sixth

Amendment. As both parties acknowledge, article I, section 10 was hotly

20

debated at Iowa’s constitutional convention. For the sake of

thoroughness, we include a history of all the proposed amendments to

the section to provide context for the introduction of the additional

language that was introduced into our constitution. Our review of this

history provides no support for the view that the framers intended the

right to counsel to attach before a case is filed in court.

The rights guaranteed by Iowa’s first ratified constitution stated,

In all criminal prosecutions, the accused shall have a right

to a speedy trial by an impartial jury; to be informed of the

accusation against him; to be confronted with the witnesses

against him; to have compulsory process for his own

witnesses, and to have the assistance of counsel.

Iowa Const. art. II, § 10 (1846). The first proposed amendment to this

provision in 1856 altered an accused’s trial rights as follows:

In all criminal prosecutions, the accused shall have a right

to a speedy trial, before an impartial jury, of the county or

district in which the offense is alleged to have been

committed, to demand the nature and cause of the accusation

against him, to be confronted by the witnesses against him,

to have compulsory process for his own witnesses, and to

have the assistance of counsel.

1 The Debates of the Constitutional Convention of the State of Iowa 102

(W. Blair Lord rep. 1857) [hereinafter The Debates],

www.statelibraryofiowa.org/services/collections/law-library/iaconst

(emphasis added). The proposed section gave “an accused party the right

to be tried . . . where he is likely to have a more fair and impartial trial,

than if taken to a distant part of the state.” Id.

Mr. Harris then moved to amend the provision as follows:

In all criminal prosecutions, the accused shall have a right

to a speedy trial before an impartial jury, of the County or

District in which the offense is alleged to have been

committed; to demand the nature and cause of the

accusation against him, and a copy thereof; to be confronted

by the witnesses against him, to have compulsory process

21

for his own witnesses, and to have the assistance of counsel:

Provided this section shall not be construed to prevent the

General Assembly from passing laws ordering a change of

venue from one district to another.

Id. at 119 (emphasis added). Harris explained that this amendment was

intended to ensure that an accused could change venue when it was

necessary, and he “would not have a man depend upon the courtesy of

the court for a copy of the indictment, but give him the power to demand

it as a matter of right.” Id. at 119–20. This proposal generated vigorous

debate. See id. at 119–23. Mr. Clark, a vocal proponent of the

Committee’s original amendment, argued the purpose of the amendment

was “to place a safeguard around the rights of persons accused of crime.”

Id. at 122. Clark was concerned that under the old constitution “the

legislature might pass a law . . . under which a man might be dragged

against his will to some other county than that in which the offence is

alleged to have been committed” for trial. Id. at 122. Mr. Clarke 7 stated

the purpose of the amendments to section 10 were “for the benefit and to

protect those charged with crime.” Id. at 123. However, the Committee

on Preamble and Bill of Rights did not agree with Harris’s additional

amendment because “those who are charged with crime” were already

afforded that right under other provisions of the constitution. Id. at 124.

Clark submitted an additional amendment to section 10, which

states in relevant part:

In all criminal prosecutions, and in all cases involving the life

or liberty of an individual, the accused shall have a right to a

speedy and public trial before an impartial jury, of the

County or District in which the offense is alleged to have

7There were two men named Mr. Clarke and one named Mr. Clark at the Iowa

convention. Mr. Clark of Allamakee County and Mr. Clarke of Henry County actively

debated article I, section 10 of the Iowa Constitution. See generally 1 The Debates, at

119–22.

22

been committed; to demand the nature and cause of the

accusation against him, and have a copy of the same when

demanded; to be confronted by the witnesses against him, to

have compulsory process for his own witnesses, and to have

the assistance of counsel.

Id. at 201. Harris moved to strike the language “and in all cases

involving the life or liberty of an individual.” 2 The Debates, at 736.

Harris said that phrase would come into play in “two classes of cases . . .

in which . . . a person would not be entitled to a jury trial in this state.”

Id. First, he was concerned that a “fugitive from justice” who had

committed a crime in another state and fled into Iowa to be arrested

would be entitled to a trial here. Id. Harris believed that interpretation

would “come into conflict with the constitution of the United States.” Id.

Harris also believed the phrase would have ramifications for fugitive

slaves in the state:

I understand that this provision is inserted for the purpose

of providing that instead of the fugitive slave having the trial

by jury where his labor may be due, he shall have the trial

here; which would be equivalent to saying at once, that any

slave in the territory of this state shall have the right to

assert his freedom, and cannot be remanded back into

slavery.

Id. Clark first responded to Harris’s concerns by stating that he believed

the added language was duplicative of the United States Constitution’s

guarantee of due process of law. Id. at 737. Clark also denied that the

section would allow another state’s fugitive from justice to be tried in

Iowa:

The provision says that he shall not be deprived of liberty;

that is, upon the final trial. It is upon the trial which is to

settle for all coming time the question as to his right to

liberty in that case. It is the final trial, the trial provided by

law, according to the common laws, when the case is heard,

the jury is [empaneled], and the verdict is pronounced. It

has no reference to his being arrested in preparation for trial.

Are not persons arrested every day for the purpose of

23

examination, to ascertain whether there is proper cause for

retaining them until they shall be put on final trial?

Id. (emphasis added). But he confirmed that the language was intended

to protect fugitive slaves from being tried out of state, which he viewed as

an affront to Iowa’s inherent sovereignty:

I hold that unless we have the right to make a constitution

which will secure me the right of jury trial, if I am claimed as

a fugitive slave, without that right we are not a sovereign

people. Without that right we cannot protect every

individual member of society. Without that right we cease to

be a sovereignty, and become dependent upon some other

power. . . . And if I am [claimed as a fugitive slave and]

found within the jurisdiction of this State, it is a principle of

sovereignty, that if I am arraigned upon a charge that I do

not own myself, that I am not a free man, I have the right to

a trial here where I am found; and the laws of the State

should guarantee to me that right . . . I do not care whether

the case is probable or not.

Id. Clark acknowledged that the language may conflict with the Federal

Fugitive Slave Act of 1850 but argued that even if it did, the courts would

refuse to give the provision effect “because the higher law, the law of the

United States, will override the provisions of our constitution.” Id. at

738.

Mr. Wilson also spoke in support of the amendment by arguing

that the country’s founding fathers would support this philosophy and

Harris’s fears were unfounded. Id. at 739. Wilson said, “I well know that

there was a time in the history of this country when men were not afraid

to say, that in all cases involving life or liberty, man should be entitled to

trial by jury.” Id. He argued that the “sooner we assert our

determination to stand by the principles of the Fathers, the better for our

country, the better for ourselves, the better for posterity.” Id. Wilson

argued that territorial jurisdiction prevented a fugitive from justice from

being tried by an Iowa court because the underlying “crime cannot be

punished excepting by the courts of the State having jurisdiction of the

24

offence.” Id. He said a different jurisdictional rule controlled a fugitive

slave captured in Iowa:

[Y]ou do not charge upon a man the commission of any

crime, and the charge is brought primarily against the man

in the State where he is sought to be reclaimed. If you bring

a charge against a man for having escaped from service or

labor due in another State, your charge is primary in its

character, and is brought where you find the man. What is

the presumption of law in that case? The presumption is

that every man is a freeman until he is shown to be a slave.

Where are you to determine that? Under the jurisdiction

where the charge is brought, and not, as in the [fugitive-

from-justice] case, under the jurisdiction where the crime

was committed.

Id. Following this discussion, Harris’s proposed deletion of “and in all

cases involving the life or liberty of an individual” was rejected by a vote

of 21 to 14. Id. at 741.

There can be no “doubt from the convention record that the

disputed language was added to Art. I[, section] 10 in an effort to nullify

the Fugitive Slave Act by giving persons accused as escaped slaves the

right to jury trial in Iowa.” Johnson, 257 N.W.2d at 54 (McCormick, J.,

concurring specially). Slave owners were required to go through a formal

proceeding to pursue a fleeing slave under the Fugitive Slave Act of 1850.

See Act of Sept. 18, 1850, ch. 60, § 4, 9 Stat. 462 (repealed 1864)

(requiring “satisfactory proof” to pursue a fugitive slave). 8 To the extent

that the framers intended to extend the rights provided under this

8The Fugitive Slave Act of 1850 required slave owners to provide “satisfactory

proof” before a slave could be “reclaimed” from another jurisdiction. See Act of

Sept. 18, 1850, ch. 60, § 4 (requiring satisfactory proof); id. § 6 (allowing slave owners

to “pursue and reclaim” fugitive slaves). Although the Act permitted commissioners to

determine whether a slave could be “reclaimed,” the commissioners were “authorized to

exercise the powers that any justice of the peace, or other magistrate of any of the

United States, may exercise in respect to offenders for any crime or offense against the

United States,” including the “power to . . . take acknowledgements of bail and

affidavits, and to take depositions of witnesses in civil causes.” Id. §§ 1–2, 4.

25

section, the additional breadth provided by the “cases” clause refers to a

right to a jury trial in a pending court case. See Grace, 12 Iowa at 213

(“We can not believe that [the change in section 10 of the Bill of Rights]

was intended to give the right of trial by jury to the occasional fugitive

slave found in our State, and to withhold it in cases of equal magnitude

and vital importance, from the half million of free white inhabitants of

the State.”). The framers consistently and exclusively focused on the

rights of persons who had already entered the court system. The

historical record for article I, section 10 shows that the framers intended

the right to counsel to apply only after pleadings have been filed in court

to commence a case or criminal proceeding.

C. Other Jurisdictions. We next examine decisions applying the

right to counsel under similar constitutional provisions of other

jurisdictions. First, we review federal precedent applying the Sixth

Amendment right to counsel. Second, we consider how other state

courts have applied the Sixth Amendment in implied-consent

proceedings. Third, we survey the jurisdictions that have analyzed the

right to counsel under state constitutional provisions. We conclude that

no jurisdiction has provided a full constitutional right to counsel for

implied-consent proceedings. We decline to follow the distinct minority

of courts that recognize a limited state constitutional right to counsel for

chemical breath tests before a formal criminal charge has been filed.

1. United States Supreme Court precedent regarding the right to

counsel. Federal jurisprudence developed to address the unrepresented

accused’s inability to effectively present a defense in the court system:

Even the intelligent and educated layman has small and

sometimes no skill in the science of law. If charged with

crime, he is incapable, generally, of determining for himself

whether the indictment is good or bad. He is unfamiliar with

26

the rules of evidence. Left without the aid of counsel he may

be put on trial without a proper charge, and convicted upon

incompetent evidence, or evidence irrelevant to the issue or

otherwise inadmissible. He lacks both the skill and

knowledge adequately to prepare his defense, even though

he have a perfect one. He requires the guiding hand of

counsel at every step in the proceedings against him.

Without it, though he be not guilty, he faces the danger of

conviction because he does not know how to establish his

innocence.

Powell v. Alabama, 287 U.S. 45, 64, 53 S. Ct. 55, 69, 77 L. Ed. 158, 170

(1932) (emphasis added).

The Supreme Court provided safeguards to ensure the right to

counsel is more than an empty right. Under the Sixth Amendment right

to counsel, a person is entitled to effective assistance. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,

693 (1984). The right to counsel includes the right to have counsel

appointed at government expense if the defendant is indigent. Gideon v.

Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 796–97, 9 L. Ed. 2d 799,

805 (1963). A defendant who is not indigent is entitled to “choose who

will represent him.” United States v. Gonzalez-Lopez, 548 U.S. 140, 144,

126 S. Ct. 2557, 2561, 165 L. Ed. 2d 409, 416 (2006). Moreover, the

right to counsel may not be abandoned without a knowing and intelligent

waiver of that right. Johnson v. Zerbst, 304 U.S. 458, 463–64, 58 S. Ct.

1019, 1022–23, 82 L. Ed. 1461, 1466 (1938).

The Supreme Court employs a two-part test to determine whether

the accused has a right to counsel. First, the right must have attached,

which means that “formal judicial proceedings have begun.” Rothgery v.

Gillespie County, 554 U.S. 191, 211, 128 S. Ct. 2578, 2591, 171

L. Ed. 2d 366, 382 (2008). Second, it must be a “critical stage” of the

prosecution. See id. (“If, indeed, the County had simply taken the cases

at face value, it would have avoided the mistake of merging the

27

attachment question (whether formal judicial proceedings have begun)

with the distinct ‘critical stage’ question (whether counsel must be

present at a postattachment proceeding unless the right to assistance is

validly waived).”).

In United States v. Wade, a defendant argued he had a right to

counsel during a postindictment lineup at a courtroom. 388 U.S. 218,

220, 87 S. Ct. 1926, 1928–29, 18 L. Ed. 2d 1149, 1153 (1967). During

the lineup, each person wore strips of tape like the ones worn by the

robber and were forced to say something like “put the money in the bag.”

Id. The Court explained that the Sixth Amendment right to counsel is

not limited to the trial:

[I]n addition to counsel’s presence at trial, the accused is

guaranteed that he need not stand alone against the State at

any stage of the prosecution, formal or informal, in court or

out, where counsel’s absence might derogate from the

accused’s right to a fair trial. The security of that right is as

much the aim of the right to counsel as it is of the other

guarantees of the Sixth Amendment—the right of the

accused to a speedy and public trial by an impartial jury, his

right to be informed of the nature and cause of the

accusation, and his right to be confronted with the witnesses

against him and to have compulsory process for obtaining

witnesses in his favor. The presence of counsel at such

critical confrontations, as at the trial itself, operates to

assure that the accused’s interests will be protected

consistently with our adversary theory of criminal

prosecution.

Id. at 226–27, 87 S. Ct. at 1932, 18 L. Ed. 2d at 1157 (footnotes omitted)

(emphasis added). The Court focused on “whether potential substantial

prejudice to defendant’s rights inheres in the particular confrontation

and the ability of counsel to help avoid that prejudice.” Id. at 227, 87

S. Ct. at 1932, 18 L. Ed. 2d at 1157.

The Wade Court found a right to counsel because there was “grave

potential for prejudice, intentional or not, in the pretrial lineup, which

28

may not be capable of reconstruction at trial, and [because] presence of

counsel itself can often avert prejudice and assure a meaningful

confrontation at trial.” Id. at 236, 87 S. Ct. at 1937, 18 L. Ed. 2d at

1162. “Thus both Wade and his counsel should have been notified of the

impending lineup, and counsel’s presence should have been a requisite

to conduct of the lineup, absent an ‘intelligent waiver.’ ” Id. at 237, 87

S. Ct. at 1937, 18 L. Ed. 2d at 1163.

But the Court agreed with the government that gathering scientific

evidence does not implicate the right to counsel:

[A] mere preparatory step in the gathering of the

prosecution’s evidence [is] not different—for Sixth

Amendment purposes—from various other preparatory

steps, such as systematized or scientific analyzing of the

accused’s fingerprints, blood sample, clothing, hair, and the

like. We think there are differences which preclude such

stages being characterized as critical stages at which the

accused has the right to the presence of his counsel.

Knowledge of the techniques of science and technology is

sufficiently available, and the variables in techniques few

enough, that the accused has the opportunity for a

meaningful confrontation of the Government’s case at trial

through the ordinary processes of cross-examination of the

Government’s expert witnesses and the presentation of 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 minimal risk that his counsel’s absence at such stages

might derogate from his right to a fair trial.

Id. at 227–28, 87 S. Ct. at 1932–33, 18 L. Ed. 2d at 1157–58. In our

view, the Datamaster breathalyzer test is an example of scientific

evidence gathering.

In Kirby v. Illinois, the Court refused to extend the right to counsel

to routine police investigations preceding indictment. 406 U.S. 682,

689–90, 92 S. Ct. 1877, 1882–83, 32 L. Ed. 2d 411, 417–18 (1972)

(plurality opinion). Thomas Kirby and Ralph Bean were arrested for

carrying traveler’s checks and a Social Security card bearing the name of

29

Willie Shard. Id. at 684, 92 S. Ct. at 1879–80, 32 L. Ed. 2d at 414–15.

The two men claimed they had “won them in a crap game.” Id. at 684,

92 S. Ct. at 1880, 32 L. Ed. 2d at 415. Police officers arrested them and

brought them to the police station. Id. When they reached the police

station, the officers learned that Willie Shard had reported a robbery the

day before. Id. at 684, 92 S. Ct. at 1879–80, 32 L. Ed. 2d at 415. Police

brought Shard to the station to observe Bean and Kirby. Id. at 684, 92

S. Ct. at 1880, 32 L. Ed. 2d at 415. Shard identified them as the

robbers. Id. at 684–85, 92 S. Ct. at 1880, 32 L. Ed. 2d at 415. Kirby

and Bean were indicted six weeks later. Id. at 685, 92 S. Ct. at 1880, 32

L. Ed. 2d at 415. After they were convicted, they appealed on the ground

that they had a right to counsel at the meeting with Shard at the police

station. Id. at 686–87, 92 S. Ct. at 1881, 32 L. Ed. 2d at 416.

The Court affirmed their convictions. Id. at 691, 92 S. Ct. at 1883,

32 L. Ed. 2d at 419. The Court refused to extend Wade and focused on

whether the right to counsel had attached:

The initiation of judicial criminal proceedings is far

from a mere formalism. It is the starting point of our whole

system of adversary criminal justice. For it is only then that

the government has committed itself to prosecute, and only

then that the adverse positions of government and defendant

have solidified. It is then that a defendant finds himself

faced with the prosecutorial forces of organized society, and

immersed in the intricacies of substantive and procedural

criminal law. It is this point, therefore, that marks the

commencement of the “criminal prosecutions” to which alone

the explicit guarantees of the Sixth Amendment are

applicable.

In this case we are asked to import into a routine

police investigation an absolute constitutional guarantee

historically and rationally applicable only after the onset of

formal prosecutorial proceedings. We decline to do so. Less

than a year after Wade and Gilbert were decided, the Court

explained the rule of those decisions as follows: “The

rationale of those cases was that an accused is entitled to

counsel at any ‘critical stage of the prosecution,’ and that a

post-indictment lineup is such a ‘critical stage.’ ” We decline

30

to depart from that rationale today by imposing a per se

exclusionary rule upon testimony concerning an

identification that took place long before the commencement

of any prosecution whatever.

Id. at 689–90, 92 S. Ct. at 1882–83, 32 L. Ed. 2d at 417–18 (emphasis

added) (footnote omitted) (citations omitted) (quoting Simmons v.

United States, 390 U.S. 377, 382–83, 88 S. Ct. 967, 970, 19 L. Ed. 2d

1247, 1252 (1968)).

In United States v. Ash, the Court considered whether a

postindictment photographic lineup shown to four witnesses was a

critical stage in the prosecution. 413 U.S. 300, 300–01, 93 S. Ct. 2568,

2569, 37 L. Ed. 2d 619, 621 (1973). The Court explained that the

critical-stage analysis “call[s] for examination of the event in order to

determine whether the accused required aid in coping with legal

problems or assistance in meeting his adversary.” Id. at 313, 93 S. Ct. at

2575, 37 L. Ed. 2d at 628. Ash was not present during the photographic

display and had no right to be present, so “no possibility ar[ose] that the

accused might [have been] misled by his lack of familiarity with the law

or overpowered by his professional adversary.” Id. at 317, 93 S. Ct. at

2577, 37 L. Ed. 2d at 631. The Court held there was no “right to counsel

at photographic displays conducted by the Government for the purpose

of allowing a witness to attempt an identification of the offender.” Id. at

321, 93 S. Ct. at 2579, 37 L. Ed. 2d at 633.

In United States v. Gouveia, the Supreme Court held a prison

inmate does not have a right to a court-appointed attorney while in an

administrative detention before an official indictment is filed. 467 U.S.

180, 192–93, 104 S. Ct. 2292, 2300, 81 L. Ed. 2d 146, 157 (1984).

Prison officials suspected Adolpho Reynoso and William Gouveia had

murdered a fellow inmate. Id. at 182–83, 104 S. Ct. at 2294, 81

31

L. Ed. 2d at 150. Reynoso and Gouveia were placed in an administrative

detention unit for approximately nineteen months without appointed

counsel. Id. at 182–83, 104 S. Ct. at 2294–95, 81 L. Ed. 2d at 150–51.

During their time in administrative detention “prison officials held

disciplinary hearings” and determined that the respondents had

participated in the murder. Id. While in administrative detention, “their

participation in various prison programs was curtailed, [but] they were

still allowed regular visitation rights, exercise periods, access to legal

materials, and unmonitored phone calls.” Id. at 183, 104 S. Ct. at 2295,

81 L. Ed. 2d at 151. A similar procedure was used before Robert Mills

and Richard Pierce were indicted for a separate inmate murder. Id. at

184, 104 S. Ct. at 2295, 81 L. Ed. 2d at 151.

The Court held there was no right to a court-appointed attorney

because the government had not initiated adversarial judicial

proceedings. Id. at 192, 104 S. Ct. at 2300, 81 L. Ed. 2d at 157. The

court said, “[O]ur cases have long recognized that the right to counsel

attaches only at or after the initiation of adversary judicial proceedings

against the defendant.” Id. at 187, 104 S. Ct. at 2297, 81 L. Ed. 2d at

153. The Court explained that the attachment timing was justified by

the plain language of the Sixth Amendment and fulfilled the purpose for

the amendment, and it distinguished the cases in which attachment

occurred prior to trial:

[G]iven the plain language of the Amendment and its

purpose of protecting the unaided layman at critical

confrontations with his adversary, our conclusion that the

right to counsel attaches at the initiation of adversary

judicial criminal proceedings “is far from a mere formalism.”

It is only at that time “that the government has committed

itself to prosecute, and only then that the adverse positions

of government and defendant have solidified. It is then that

a defendant finds himself faced with the prosecutorial forces

32

of organized society, and immersed in the intricacies of

substantive and procedural criminal law.”

Id. at 188–89, 104 S. Ct. at 2297–98, 81 L. Ed. 2d at 154–55 (citation

omitted) (quoting Kirby, 406 U.S. at 689, 92 S. Ct. at 1882, 32 L. Ed. 2d

at 418).

In Rothgery, the Court gave further guidance on when a

prosecution commences. 554 U.S. at 213, 128 S. Ct. at 2592, 171

L. Ed. 2d at 383. Walter Rothgery was arrested based on an erroneous

record that he had been convicted of a felony. Id. at 195, 128 S. Ct. at

2581, 171 L. Ed. 2d at 372. Rothgery was brought before a magistrate

because the officers did not have an arrest warrant. Id. at 195, 128

S. Ct. at 2581, 171 L. Ed. 2d at 373. The arresting officer submitted an

affidavit that claimed that Rothgery was charged with a felony. Id. at

196, 128 S. Ct. at 2582, 171 L. Ed. 2d at 373. The magistrate

determined there was probable cause for the arrest and set a $5000

bond. Id. Rothgery posted the bond, which stated that “Rothgery stands

charged by complaint.” Id. Rothgery did not have money for a lawyer,

and his requests for one were denied. Id. Six months later, a lawyer was

appointed for Rothgery, who assembled the relevant paperwork and

relayed the information to the district attorney, who dismissed the

indictment. Id. at 196–97, 128 S. Ct. at 2581, 171 L. Ed. 2d at 373.

The Court reiterated the right to counsel “does not attach until a

prosecution is commenced.” Id. at 198, 128 S. Ct. at 2582, 171

L. Ed. 2d at 374 (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111

S. Ct. 2204, 2207, 115 L. Ed. 2d 158, 166 (1991)). A prosecution

commences at “the initiation of adversary judicial criminal proceedings—

whether by way of formal charge, preliminary hearing, indictment,

information, or arraignment.” Id. (quoting Gouveia, 467 U.S. at 188, 104

33

S. Ct. at 2297, 81 L. Ed. 2d at 154). The Court held the prosecution had

commenced against Rothgery when he was brought before the judicial

magistrate because

an accusation filed with a judicial officer is sufficiently

formal, and the government’s commitment to prosecute it

sufficiently concrete, when the accusation prompts

arraignment and restrictions on the accused’s liberty to

facilitate the prosecution. From that point on, the defendant

is “faced with the prosecutorial forces of organized society,

and immersed in the intricacies of substantive and

procedural criminal law” that define his capacity and control

his actual ability to defend himself against a formal

accusation that he is a criminal. By that point, it is too late

to wonder whether he is “accused” within the meaning of the

Sixth Amendment, and it makes no practical sense to deny

it.

Id. at 207, 128 S. Ct. at 2589, 171 L. Ed. 2d at 380 (citations omitted)

(quoting Kirby, 406 U.S. at 689, 92 S. Ct. at 1882, 32 L. Ed. 2d at 418).

It is irrelevant whether a public prosecutor is aware or involved in the

initiated proceedings. Id. at 194–95, 128 S. Ct. at 2581, 171 L. Ed. 2d at

372. In sum, the court concluded

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.

Id. at 213, 128 S. Ct. at 2592, 171 L. Ed. 2d at 383.

The Supreme Court has never held that the Sixth Amendment

provides a right to counsel before submitting to chemical testing. 9 The

9In Missouri v. McNeely, the United States Supreme Court held “that in drunk-

driving investigations, the natural dissipation of alcohol in the bloodstream does not

constitute an exigency in every case sufficient to justify conducting a blood test without

a warrant” under the Fourth Amendment. 567 U.S. ___, ___, 133 S. Ct. 1552, 1568,

185 L. Ed. 2d 696, 715 (2013). The Court said that “a compelled physical intrusion

beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as

evidence in a criminal investigation . . . implicate[d] an individual’s ‘most personal and

deep-rooted expectations of privacy.’ ” Id. at ___, 133 S. Ct. at 1558, 185 L. Ed. 2d at

34

Court was presented with the question in 1985 but dismissed the appeal

for want of a federal question over two dissenting justices. Nyflot v.

Minnesota Comm’r of Pub. Safety, 474 U.S. 1027, 1027, 106 S. Ct. 586,

586, 88 L. Ed. 2d 567, 567 (1985) (mem.). In Roberts v. State, the

United States Court of Appeals for the First Circuit concluded that a

driver did not have the right to counsel during an implied-consent

proceeding

because the police were still waiting for the outcome of their

investigation—either from the results of the blood/alcohol

test or from the fact of defendant’s refusal to submit to the

test—before deciding whether or not to bring charges against

the defendant. The government had not yet crossed the

constitutional divide between investigator and accuser. As a

threshold matter, the right to counsel had not yet attached

when [the defendant’s] request for counsel was denied . . . .

48 F.3d 1287, 1291 (1st Cir. 1995). Senn cites no federal authorities to

the contrary.

2. State cases applying the federal constitutional right to counsel.

We next turn to state cases applying the federal right to counsel. We

begin with our own state. In Walker, we held the “Sixth Amendment

right to counsel had not yet attached at the time [the detainee] was asked

to perform the breath test.” 804 N.W.2d at 293. We held in Vietor there

was no violation of the arrestee’s Sixth Amendment right to counsel when

evidence of his uncounseled test refusal was admitted at trial. 261

_________________________

704 (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 1616, 84 L. Ed. 2d

662, 668 (1985)); see also Birchfield, 579 U.S. at ___, ___ S. Ct. at ___, ___ L. Ed. 2d at

___ (“The impact of breath tests on privacy is slight . . . . Blood tests are significantly

more intrusive, and their reasonableness must be judged in light of the availability of

the less invasive alternative of a breath test.”). Senn has not raised any Fourth

Amendment challenge and submitted to a breath test, not a blood draw. Therefore,

McNeely is inapposite.

35

N.W.2d at 830. In other cases, we explained why the right does not

attach before formal criminal charges are filed.

In State v. Johnson, the police filed a complaint against Kevin

Johnson for abandonment of a dependent person after his wife reported

their child missing. 318 N.W.2d 417, 420, 427 (Iowa 1982). At 3:55

p.m., police officers arrested Johnson, Mirandized him, and asked him

questions about the child. Id. at 427. Johnson’s attorney called and

interrupted the interview to speak with him. Id. at 428. At 4:30 p.m.,

Johnson’s attorney came to the jail and spoke with the police and the

defendant. Id. A few hours later, his wife told the police that the child

was dead and buried in a wooded area. Id. When the police were unable

to find the child’s body, they interrogated Johnson, who made

statements about the burial. Id. Johnson appealed, alleging in part that

he was denied his Sixth Amendment right to counsel during the second

interview. Id.

We concluded that Johnson was denied his right to counsel in the

second interview:

An accusatory instrument in the form of a complaint had

been filed requesting that a warrant issue for defendant’s

arrest and that defendant be dealt with according to law.

The county attorney’s involvement in filing the complaint

and procuring the warrant focused the prosecutorial forces

on defendant. Given the significant level of prosecutorial

involvement at this stage of the case, defendant's arrest can

hardly be characterized as purely investigatory in nature.

The forces of the State had solidified in a position adverse to

defendant, at least with respect to the abandonment charge

growing out of the incident.

Id. at 434–35 (citations omitted).

Unlike the prosecutorial forces at play in Johnson, the implied-

consent procedure was investigatory here. The State was not yet

36

committed to prosecuting Senn. The county attorney was not involved,

and no charging papers were filed with the court for another eleven days.

The Kansas Supreme Court refused to find a right to counsel

during chemical testing because it was not a critical stage in the

prosecution. State v. Bristor, 691 P.2d 1, 5 (Kan. 1984). The Bristor

court recognized that a driver faces serious consequences from a

chemical breath test and that “the advice of counsel can be useful

because a driver may be dazed as a result of the alcohol, an accident, or

both.” Id. But the court concluded that “[n]ot every evidence-gathering

procedure is a critical stage.” Id.

The Maine Supreme Court reached a similar conclusion based on

the autonomous nature of choosing whether or not to take a test:

There is little counsel could do in making a test decision (or,

even, during the administration of the test) for the

defendant. The test is, in fact, a “mere preparatory step”; the

officers, short of using improper test administration

procedures or tampering with the specimen, can do nothing

to impair the defendant’s subsequent fair trial. If the officers

do engage in such improper conduct, the defendant can

effectively confront that aspect of the Government’s case at

trial.

State v. Jones, 457 A.2d 1116, 1118 n.5 (Me. 1983).

The New Mexico Court of Appeals held no right to counsel had

attached when the driver submitted to a breath test:

We are not unmindful of the issues defendants raise

regarding the practical effect of failing a [breath alcohol test],

being issued a citation and having the narrative portion of a

charging instrument filled out by the arresting police officer.

While it may be true that this combination of occurrences

leads to State prosecution in a high percentage of cases, it

does not of itself amount to the kind of prosecutorial

commitment which the United States Supreme Court has

recognized as implicating the sixth amendment.

State v. Sandoval, 683 P.2d 516, 519 (N.M. Ct. App. 1984).

37

Senn has cited no decisions extending the Sixth Amendment right

to counsel to a driver’s decision to submit to a chemical breath test

before formal criminal charges are filed. The authorities are unanimous

that such a right has not yet attached under the Sixth Amendment.

3. Jurisdictions with no state constitutional right to counsel during

implied-consent proceedings. The vast majority of courts deciding the

issue conclude there is no state constitutional right to counsel at the

time the motorist must decide whether to submit to chemical testing.10

10See, e.g., Rackoff v. State, 637 S.E.2d 706, 708–09 (Ga. 2006) (“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.”); State v. Severino, 537 P.2d

1187, 1189 (Haw. 1975) (“[A] motorist is not entitled to consult with counsel before

deciding to submit to the chemical test prescribed by the implied consent statute.”);

Commonwealth v. Brazelton, 537 N.E.2d 142, 143 (Mass. 1989) (“The moment at which

a person must decide to take or to refuse to take a breathalyzer test is not a critical

stage in the criminal process.”); State v. Armfield, 693 P.2d 1226, 1228 (Mont. 1984)

(“Neither the United States nor Montana constitutions guarantee a defendant the

opportunity to seek an attorney’s advice before deciding whether to submit or not to

submit to a blood alcohol test.”), abrogated on other grounds by State v. Reavley, 79

P.3d 270, 279 (Mont. 2003); Wiseman v. Sullivan, 211 N.W.2d 906, 910 (Neb. 1973) (“[A]

driver who has been arrested for operating a motor vehicle upon a public street or

highway while under the influence of intoxicating liquor is not entitled under either the

federal or state Constitutions or the implied consent statute to consult with a lawyer

previous to giving a sample of blood, breath, or urine under the implied consent act, or

to have a lawyer present during the giving of the sample.”); State v. Leavitt, 527 A.2d

403, 407 (N.J. 1987) (holding “[n]o provision of the New Jersey Constitution or statutes

furnishes” the guarantee to assistance of counsel when “a motorist [is] requested to

furnish a breath or blood sample”); State v. Howren, 323 S.E.2d 335, 336–37 (N.C.

1984) (holding the right to counsel had not attached under either the United States or

North Carolina Constitution, reasoning that “[t]he fact that as a matter of grace the

legislature has given defendant the right to refuse to submit to chemical analysis, and

suffer the consequences for refusing, does not convert this step in the investigation into

a critical stage in the prosecution”); Commonwealth v. McCoy, 975 A.2d 586, 591 (Pa.

2009) (“Submission to a chemical test upon being stopped for suspected DUI is an

evidence-gathering circumstance, prior to the filing of any formal adversarial judicial

proceedings, and as such does not constitute a critical stage for purposes of the right to

counsel.”); Dunn v. Petit, 388 A.2d 809, 812 (R.I. 1978) (“[W]e reject petitioners’

argument that there is a [state or federal] constitutional right to counsel at the moment

of decision concerning submission to a breathalyzer test . . . .”); State v. Frasier, 914

S.W.2d 467, 471 (Tenn. 1996) (“[W]e hold that a person arrested without a warrant on a

reasonable suspicion of DUI does not have a due process right under the Tennessee

Constitution to consult with an attorney before making the decision.”); Mogard v. City of

Laramie, 32 P.3d 313, 325 (Wyo. 2001) (affirming a “bright-line” rule that right to

38

Most states follow the federal right-to-counsel attachment standard

under their state constitutional provision. 11 The Pennsylvania Supreme

Court surveyed precedent nationwide 12 when it expressly declined to find

a broader right to counsel under the Pennsylvania Constitution: 13

_________________________

counsel “under the Sixth Amendment and Wyo[ming] Constitution art. I, § 10 is only

required once charges are filed” and does not “extend to the time at which [an] arrestee

is deciding whether to submit to chemical testing”); cf. Law v. City of Danville, 187

S.E.2d 197, 198 (Va. 1972) (“[D]enial of the right to consult with counsel before an

accused decides whether to take a blood test does not violate the Sixth Amendment . . .

[n]or . . . impair an accused’s right . . . guaranteed by . . . the State Constitution.”).

11See, e.g., People v. Anderson, 842 P.2d 621, 622 & n.4 (Colo. 1992) (en banc)

(citing the federal standard and noting “[w]e have adopted the same test for determining

whether the right to counsel attaches under article II, section 16 of the Colorado

Constitution”); Rackoff, 637 S.E.2d at 708–09 (applying federal attachment standard);

State v. Luton, 927 P.2d 844, 849 (Haw. 1996) (applying the federal attachment

standard to claim under the Hawaii Constitution); Commonwealth v. Jones, 526 N.E.2d

1288, 1292 (Mass. 1988) (noting the right to counsel under the Massachusetts

Constitution “attaches only at or after the time that adversary judicial proceedings have

been initiated against him” (quoting Kirby, 406 U.S. at 688, 92 S. Ct. at 1881, 32 L. Ed.

2d at 417)); People v. Cheatham, 551 N.W.2d 355, 359 n.8 (Mich. 1996) (noting the right

to counsel under the Michigan Constitution “attaches only at or after the initiation of

adversary judicial proceedings by way of formal charge, preliminary hearing,

indictment, information, or arraignment” (quoting People v. Wright, 490 N.W.2d 351,

365 (Mich. 1992) (Riley, J., dissenting))); State v. Delisle, 630 A.2d 767, 767 (N.H. 1993)

(“A defendant’s right to assistance of counsel attaches ‘by virtue of the commencement

of formal criminal proceedings.’ ” (quoting State v. Bruneau, 552 A.2d 585, 587–88 (N.H.

1988))); McCoy, 975 A.2d at 590 (noting the right to counsel under the Pennsylvania

Constitution is “coterminous with the Sixth Amendment right for purposes of

determining when the right attaches”); State v. Stephenson, 878 S.W.2d 530, 547 (Tenn.

1994) (holding the state constitutional right to counsel was inapplicable because “[n]o

adversary judicial proceedings had been initiated against the defendant at the time of

the alleged ‘invocation’ of his right to counsel”), abrogated on other grounds by State v.

Saylor, 117 S.W.3d 239, 245–46 (Tenn. 2003); State v. Parizo, 655 A.2d 716, 717 (Vt.

1994) (holding that the state constitutional right to counsel does not attach until there

is a “criminal prosecution” as contemplated in Kirby); State v. Earls, 805 P.2d 211, 215

& n.5 (Wash. 1991) (en banc) (“The right to counsel under [the state constitution] also

attaches only after the initiation of formal judicial proceedings.”); State ex rel. Bess v.

Legursky, 465 S.E.2d 892, 898 (W. Va. 1995) (holding the right to counsel does not

attach until a “critical stage in the adversary proceedings”) (quoting State ex rel. Daniel

v. Legursky, 465 S.E.2d 416, 423 (W. Va. 1995))); Mogard, 32 P.3d at 322 (“A request

for counsel made prior to the commencement of adversarial criminal proceedings does

not invoke the right to counsel . . . under [the state constitution.]”).

12Twelveof the thirteen state court decisions cited by the Pennsylvania Supreme

Court remain good law. See Anderson, 842 P.2d at 622 n.4; Smith v. State, 699 So. 2d

39

From our analysis of the opinions issued by our sister

states, we conclude that the majority position of adhering to

the federal rule on the attachment of the right to counsel is

the most sensible. The plain language of Article I, § 9 limits

the right to those situations where an “accused” is the

subject of a “criminal prosecution”. The terms “accused”

and “all criminal prosecutions” are not mere verbiage with

which we may summarily dispense. Rather, they are

necessary terms which define the scope of this right. Were

we to hold the attachment of the right to counsel is

independent of the creation of an “accused” and the

initiation of a “criminal prosecution,” and is instead triggered

by some earlier interaction between the police and the

defendant, we would divorce this right from its constitutional

basis. Such a holding would create a rootless, ethereal

“constitutional” right which would have no foundation in the

constitution of this commonwealth.

Commonwealth v. Arroyo, 723 A.2d 162, 169 (Pa. 1999) (emphasis

added). We agree.

Our sister courts give several reasons why the right to counsel

does not attach during an implied-consent proceeding. The Wyoming

Supreme Court characterized its three main reasons why an implied-

consent proceeding is not a critical stage of a criminal prosecution:

First, the function of the Sixth Amendment right to

counsel is to preserve the defendant’s right to a fair trial,

once adversarial criminal proceedings have been commenced

by the filing of a formal charge. Second, the chemical testing

decision is “ ‘not essentially “a lawyer’s decision” but, on the

contrary, can be made by a defendant in the absence of the

assistance of counsel without any substantial prejudice to

_________________________

629, 638 (Fla. 1997); Luton, 927 P.2d at 849–50; Jones, 526 N.E.2d at 1292; Cheatham,

551 N.W.2d at 359 n.8; State v. Warren, 499 S.E.2d 431, 439–40 (N.C. 1998);

Stephenson, 878 S.W.2d at 547–48; Poullard v. State, 833 S.W.2d 270, 271–72 (Tex.

App. 1992); Parizo, 655 A.2d at 717; Earls, 805 P.2d at 215 & n.5; Bess, 465 S.E.2d at

898; Prime v. State, 767 P.2d 149, 152–53 (Wyo. 1989). As we explain below, Minnesota

departed from the Sixth Amendment analysis in Friedman v. Commissioner of Public

Safety, 473 N.W.2d 828, 836–37 (Minn. 1991). Florida has recognized a broader right

to counsel under its state constitution. See Smith, 699 So. 2d at 638 (noting that the

Florida right to counsel will attach “as soon as feasible after custodial restraint”).

13The right-to-counsel provision in Pennsylvania’s constitution, entitled “Rights

of accused in criminal prosecutions,” states, “In all criminal prosecutions the accused

hath a right to be heard by himself and his counsel . . . .” Pa. Const. art. I, § 9.

40

[the accused’s] rights under the sixth amendment.’ ” And

third, the “right” to refuse the test is not a right at all, but is,

at most, a statutory privilege or an “option” which may be

strictly regulated by the state.

Mogard v. City of Laramie, 32 P.3d 313, 324 (Wyo. 2001) (alteration in

original) (footnote omitted) (citations omitted) (quoting State v. Delisle,

630 A.2d 767, 768 (N.H. 1993)); see also Commonwealth v. Brazelton,

537 N.E.2d 142, 143 (Mass. 1989) (“The moment at which a person must

decide to take or to refuse to take a breathalyzer test is not a critical

stage in the criminal process.”); State v. Greene, 512 A.2d 429, 432 (N.H.

1986) (holding the right to take a breath test is not a critical stage

because advice is not necessary “to protect a defendant’s right to a fair

trial”); State v. Howren, 323 S.E.2d 335, 336–37 (N.C. 1984) (holding an

implied-consent proceeding is not a critical stage of the prosecution);

Commonwealth v. McCoy, 975 A.2d 586, 590 (Pa. 2009) (holding no right

to counsel under the state constitution because the implied-consent

proceeding “was not a ‘critical stage’ under [Pennsylvania]

jurisprudence”); McCambridge v. State, 778 S.W.2d 70, 72 (Tex. Crim.

App. 1989) (en banc) (holding the chemical breath test procedure “is not

a ‘critical stage’ of the criminal process which necessitates either the

prior consultation [with] or presence of counsel under the right-to-

counsel provision of Article I, § 10 of the Texas Constitution” (quoting

Forte v. State, 759 S.W.2d 128, 139 (Tex. Crim. App. 1988) (en banc))).

The Massachusetts Supreme Court focused on the inherent

practical problems in concluding there is no right to counsel before

submitting to a breathalyzer test:

The recognition of a right to consult an attorney before

deciding to take a breathalyzer test presents formidable

practical problems. In the present case, the defendant

wanted to call his private attorney. If an attorney is not

available, a delay may ensue and the test results may then

41

be stale and inaccurate. The same result follows for one who

has no attorney or has no money to retain an attorney.

Brazelton, 537 N.E.2d at 143. The practical problem confronted in

Brazelton is reflected in the record before us. Senn made numerous

phone calls and had trouble getting an attorney on the phone, and he

was unable to get an attorney to meet with him at the police station. If

we hold the right to counsel attaches during an implied-consent

proceeding, we will also need to determine whether that right, like the

federal constitutional right to counsel, includes the right to an attorney

at state expense if the motorist is indigent.

The Georgia Supreme Court rejected a defendant’s right to counsel

before deciding whether to take a chemical breath test because it would

be unlikely that an attorney would be able to meaningfully assist the

driver before the test:

After all, the officer who administers the test must advise the

driver of his implied consent rights pursuant to [the Georgia

implied consent statute]. 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.

Rackoff v. State, 637 S.E.2d 706, 708–09 (Ga. 2006).

The Texas Supreme Court previously recognized a broader right to

counsel under its state constitution but returned to the federal

standard. 14 See McCambridge, 778 S.W.2d at 75–76. The McCambridge

court explained it believed the “initiation of adversary criminal

proceeding” language in Kirby was a departure from the analysis in

Wade. Id. at 75. The court determined a case-by-case rule was

unworkable:

14Theright-to-counsel provision in Texas, entitled “Rights of accused in criminal

prosecutions,” states, “In all criminal prosecutions the accused shall have . . . the right

of being heard by himself or counsel, or both . . . .” Tex. Const. art. I, § 10.

42

Since making that determination, however, we have

concluded that the classification of a period in the criminal

process as “critical” on a case by case basis is ambiguous,

vague, and thus unworkable. Consistency is the objective of

any legal standard. If consistency can be achieved it benefits

both law enforcement and the public. Consequently,

although we do not depart from our conclusion that the

reasoning in Kirby cannot be logically reconciled with the

converse reasoning in Wade and Gilbert, we are nonetheless

persuaded that by adopting a bright line rule establishing

when the critical stage in the criminal process occurs the

public will ultimately benefit.

Id. at 75–76.

These authorities are persuasive. We too want to avoid creating an

unworkable rule for determining when the right to counsel attaches. If

we expand the right to counsel to include implied-consent chemical

breath tests before any criminal case is filed, what is the limiting

principle? Why stop there? Why not expand the right further to include

noncustodial questioning by police or police requests for consent

searches before any charges are filed? The text of our constitution

provides a clear starting point for the attachment of the right to

counsel—the court filing that commences the criminal proceeding or

other case putting liberty at risk. We are unwilling to erase that bright

line.

Only four jurisdictions—Florida, Oregon, Minnesota, and

New York—have recognized a broader right to counsel under their state

constitutions. 15 Even so, Florida does not recognize a right to counsel

15Maryland has a limited right to counsel during implied-consent proceedings

based on its state constitutional right to due process. Sites v. State, 481 A.2d 192, 200

(Md. 1984). Subsequent cases have called Sites into doubt. See Motor Vehicle Admin. v.

Deering, 92 A.3d 495, 507 (Md. 2014) (“Given the scarce support for th[e] analysis of the

due process clause of the federal Constitution, the Sites Court’s rationale rests on a

precarious footing. Of course, because the Sites decision was also based on Article 24,

it is conceivable that this Court could hold that the State constitution confers such a

right, even if the federal Constitution does not.”). The independent constitutional right

to counsel in Maryland is based on their due process provision. Id. Senn did not argue

43

before submitting to a chemical breath test. A Florida appellate court

rejected a defendant’s argument that he had the right to counsel before

submitting to a breathalyzer test in State v. Burns, 661 So. 2d 842, 847

(Fla. Dist. Ct. App. 1995). The court recognized that the right to counsel

under the Florida Constitution attaches “at the earliest of the following

points: when he or she is formally charged with a crime via the filing of

an indictment or information, or as soon as feasible after custodial

restraint, or at first appearance.” 16 Id. (quoting Traylor v. State, 596

So. 2d 957, 970 (Fla. 1992)). This definition of the beginning of a

prosecution is broader than the federal right because it encompasses

“custodial restraint,” which includes persons who are booked but not

charged. 17 See Traylor, 596 So. 2d at 970 & n.38. The state, as in this

case, argued that it is not feasible to supply counsel in impaired-driving

cases. Burns, 661 So. 2d at 847. The court agreed the state’s

constitutional standard posed a serious practical problem:

Whether the right to counsel was provided “as soon as

feasible” is a nebulous gray area, the determination of which

is completely dependent on how much importance is given

the State’s dilemma. Even stationing a public defender at

the testing center would not solve the problem because there

has been no judicial determination of a defendant’s right to a

public defender at this stage of the proceedings. Certainly if

“feasible” means possible, then the right to counsel attached

immediately at the center.

_________________________

the Iowa due process clause in his motion to suppress. Accordingly, Sites does not

support his argument.

16The Florida Constitution provides for the right to counsel in a provision

entitled “Rights of accused and of victims”: “In all criminal prosecutions[,] the accused

shall . . . have the right . . . to be heard in person, by counsel or both . . . .” Fla. Const.

art. I, § 16(a).

17WhenFlorida expanded its rule, the court noted that there was a rule of

criminal procedure that provided counsel to arrestees who were booked but not formally

charged. Traylor, 596 So. 2d at 970 n.38; see also Fla. R. Crim. P. 3.111(a).

44

Id. But the court resolved the appeal by determining the testing was not

at a critical stage in the prosecution because the test results could be

challenged at trial. Id. at 848. The court emphasized that breathalyzer

tests are essentially an evidence-gathering process, and the defendant is

equally capable of representing himself as any defense counsel. Id. If

the case goes to trial, defense counsel still has the opportunity to “attack

the field tests and the breathalyzer tests through discovery, cross

examination, and defense experts.” Id.

These Florida cases illustrate that for Senn to prevail, we must find

both that the right to counsel under the Iowa Constitution attaches

before the beginning of a formal prosecution and that a primarily

evidence-gathering activity can be a critical stage to the prosecution. We

conclude Senn’s argument fails on both fronts.

Senn relies primarily on the Minnesota Supreme Court’s decision

in Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 829, 836–

37 (Minn. 1991). 18 Joy Friedman was arrested in Minneapolis when she

failed a preliminary breath test. Id. at 829. The police officer took her to

the police station to take an intoxilyzer test. Id. The machine was in

use, so they waited twenty-five minutes at the station. Id. During this

time, Friedman asked what her rights were and whether she could

consult an attorney. Id. The officer did not allow her to contact an

attorney. Id. A different officer took Friedman into a videotaping room

and read her the implied-consent advisory three times. Id. The implied-

consent advisory stated she had a right to consult an attorney after

18The Minnesota right-to-counsel provision, entitled “Rights of accused in

criminal prosecutions,” states, “In all criminal prosecutions[,] . . . [t]he accused shall

enjoy the right . . . to have compulsory process for obtaining witnesses in his favor and

to have the assistance of counsel in his defense.” Minn. Const. art. I, § 6.

45

testing. Id. Friedman said she did not understand the advisory and that

she had been tested in the squad car. Id. The police considered

Friedman’s response a refusal to be tested, which resulted in a one-year

revocation of her drivers’ license. Id.

The Minnesota Supreme Court noted, “As is often the case, the

driver at this critical stage looked to the police for guidance. An attorney,

not a police officer, is the appropriate source of legal advice.” Id. at 833.

The Court concluded a defendant is guaranteed a “limited right to

counsel within a reasonable time before submitting to testing.” Id. at

837. The court explained the right to counsel as follows:

[A]ny person who is required to decide whether he will

submit to a chemical test . . . shall have the right to consult

with a lawyer of his own choosing before making that

decision, provided that such a consultation does not

unreasonably delay the administration of the test. The

person must be informed of this right, and the police officers

must assist in its vindication. The right to counsel will be

considered vindicated if the person is provided with a

telephone prior to testing and given a reasonable time to

contact and talk with counsel. If counsel cannot be

contacted within a reasonable time, the person may be

required to make a decision regarding testing in the absence

of counsel.

Id. at 835 (quoting Prideaux v. Dep’t of Pub. Safety, 247 N.W.2d 385, 394

(Minn. 1976)).

Later Minnesota opinions have recognized the limited nature of the

right to counsel in an implied-consent proceeding:

We need only consider the right to counsel at issue here, the

right to counsel for a test decision, which is more limited in

nature than the right to counsel at a plea hearing or at trial.

In Friedman we recognized that “the evanescent nature of the

evidence in DWI cases requires that the accused be given a

limited amount of time in which to contact counsel.” The

right is deemed forfeited if counsel is not contacted within a

reasonable period of time, even if by no fault of the accused.

There is no analogous durational limitation or forfeiture

46

consequence associated with the right to counsel at a plea

hearing or at trial.

State v. Schmidt, 712 N.W.2d 530, 538 (Minn. 2006) (footnote omitted)

(citations omitted) (quoting Friedman, 473 N.W.2d at 835). Significantly,

Minnesota courts permit the police or jailer to monitor the detainee’s

phone calls with counsel. Comm’r of Pub. Safety v. Campbell, 494

N.W.2d 268, 270 (Minn. 1992). Evidence of the driver’s telephonic

statements with counsel may be suppressed during the criminal trial. Id.

at 269–70 (“[T]he arrestee’s rights will be sufficiently protected by the

subsequent exclusion of any overheard statements or any fruits of those

statements.”). This does not help Senn. Senn was tried on the minutes

of testimony. He made inculpatory statements during his phone call, but

none of those admissions were included in the minutes.

The right to counsel articulated in Friedman and its progeny is no

broader than the limited statutory right to counsel under Iowa Code

section 804.20. If this proceeding had occurred in Minnesota, Senn

would have no remedy. Senn was provided with a phone, offered a

phone book, and given ample time to reach an attorney. In fact, Senn

did reach his attorney and was allowed to consult with the attorney for

almost a half hour. None of Senn’s statements made to his lawyer on the

phone call were used in the criminal case. Under the Minnesota

precedent, Senn would have no remedy for Officer Cuppy’s presence in

the room during the phone call.

Senn likely would fare better under Oregon’s broader state

constitutional right to counsel: 19

19The right to counsel in the Oregon Constitution is entitled “Rights of Accused

in Criminal Prosecution”: “In all criminal prosecutions, the accused shall have the right

. . . to be heard by himself and counsel . . . .” Or. Const. art. I, § 11.

47

We hold that, under the right to counsel clause in

Article I, section 11 [of the Oregon Constitution], an arrested

driver has the right upon request to a reasonable

opportunity to obtain legal advice before deciding whether to

submit to a breath test. Because evidence of an arrested

driver’s blood alcohol dissipates over time, the state is not

required to wait for a long period of time before

administering the test.

State v. Spencer, 750 P.2d 147, 155–56 (Or. 1988) (en banc) (footnote

omitted). This right encompasses the ability to “consult with counsel in

private,” including over the phone. State v. Durbin, 63 P.3d 576, 579 (Or.

2003). The Oregon court said that “the purpose of the lawyer-client

privilege cannot be fulfilled unless the communications between a client

and a lawyer are confidential.” Id.

But the Oregon right to counsel is not absolute because that state

will not provide a lawyer at the state’s expense for indigent persons

during chemical testing, and the right may be forfeited. State v. Smalls,

120 P.3d 506, 508, 510–11 (Or. Ct. App. 2005); see Spencer, 750 P.2d at

155 (“In view of the exigencies attendant to the breath test process and

the extraordinary expense [appointing counsel to indigents] would entail,

we doubt that the Supreme Court would take the dictates of Gideon v.

Wainwright . . . and its progeny that far.”). The right to counsel in

Oregon is limited to those who can afford lawyers.

New York has extended its state constitutional right to counsel to

persons who are taken into custody, whether “as an ‘accused,’ a

‘suspect,’ or a ‘witness.’ ” People v. Hobson, 348 N.E.2d 894, 897 (N.Y.

1976). The detainee is generally entitled to speak privately with counsel

by phone. People v. O’Neil, 986 N.Y.S.2d 302, 312 (Dist. Ct. 2014). Senn

does not cite or rely on New York precedent, presumably because of the

textual differences in that state’s constitution, which combines multiple

rights—including due process, self-incrimination, and the right to

48

counsel—into one provision. 20 Indeed, New York’s highest court has

stated,

The Right to Counsel Clause in the State Constitution is

more restrictive than that guaranteed by the Sixth

20New York’s right-to-counsel provision, entitled “Grand Jury; Waiver of

Indictment; Right to Counsel; Informing Accused; Double Jeopardy; Self-Incrimination;

Waiver of Immunity by Public Officers; Due Process of Law,” states,

No person shall be held to answer for a capital or otherwise

infamous crime (except in cases of impeachment, and in cases of militia

when in actual service, and the land, air and naval forces in time of war,

or which this state may keep with the consent of congress in time of

peace, and in cases of petit larceny under the regulation of the

legislature), unless on indictment of a grand jury, except that a person

held for the action of a grand jury upon a charge for such an offense,

other than one punishable by death or life imprisonment, with the

consent of the district attorney, may waive indictment by a grand jury

and consent to be prosecuted on an information filed by the district

attorney; such waiver shall be evidenced by written instrument signed by

the defendant in open court in the presence of his or her counsel. In any

trial in any court whatever the party accused shall be allowed to appear

and defend in person and with counsel as in civil actions and shall be

informed of the nature and cause of the accusation and be confronted with

the witnesses against him or her. No person shall be subject to be twice

put in jeopardy for the same offense; nor shall he or she be compelled in

any criminal case to be a witness against himself or herself, providing,

that any public officer who, upon being called before a grand jury to

testify concerning the conduct of his or her present office or of any public

office held by him or her within five years prior to such grand jury call to

testify, or the performance of his or her official duties in any such

present or prior offices, refuses to sign a waiver of immunity against

subsequent criminal prosecution, or to answer any relevant question

concerning such matters before such grand jury, shall by virtue of such

refusal, be disqualified from holding any other public office or public

employment for a period of five years from the date of such refusal to

sign a waiver of immunity against subsequent prosecution, or to answer

any relevant question concerning such matters before such grand jury,

and shall be removed from his or her present office by the appropriate

authority or shall forfeit his or her present office at the suit of the

attorney-general.

The power of grand juries to inquire into the wilful misconduct in

office of public officers, and to find indictments or to direct the filing of

informations in connection with such inquiries, shall never be suspended

or impaired by law. No person shall be deprived of life, liberty or

property without due process of law.

N.Y. Const. art. I, § 6 (emphasis added).

49

Amendment to the United States Constitution. Nevertheless,

by resting the right upon this State’s constitutional

provisions guaranteeing the privilege against self-

incrimination, the right to assistance of counsel and due

process of law we have provided protection to accuseds far

more expansive than the Federal counterpart.

People v. Bing, 558 N.E.2d 1011, 1014–15 (N.Y. 1990) (footnote omitted)

(citations omitted). By contrast, the Iowa Constitution has separate

provisions for due process and the right to counsel. Compare N.Y. Const.

art. I, § 6 (including provisions regarding grand jury, waiver of

indictment, right to counsel, informing accused, double jeopardy, self-

incrimination, waiver of immunity by public officers, and due process of

law), with Iowa Const. art. I, § 9 (providing right of trial by jury and due

process of law); id. art. I, § 10 (providing rights of persons accused).

Senn relies solely on the right-to-counsel provision in article I,

section 10 of the Iowa Constitution. He does not rely on the due process

clause, the privilege against self-incrimination, or the right to be free of

unreasonable searches and seizures. This case does not involve a police

interrogation, blood draw, plea bargaining, or a lineup. New York’s

provision combining disparate rights is a poor interpretive analogue here.

Moreover, the combined New York provision more broadly refers

repeatedly to “a person” in place of the narrower term used for a subset

of persons who have been formally charged, “the party accused.”

Compare N.Y. Const. art. I, § 6 (referring several times to a “person” and

once to “the party accused”), with Iowa Const. art. I, § 10 (referring only

to “the accused”). For those reasons, the New York cases are inapposite.

Regardless, New York provides only a limited right to counsel for

motorists arrested for suspicion of drunk driving. People v. Smith, 965

N.E.2d 928, 931 (N.Y. 2012). “[T]here is no absolute right to refuse to

take the test until an attorney is actually consulted, nor can a defendant

50

use a request for legal consultation to significantly postpone testing.” Id.

If the defendant is unable to contact an attorney, the defendant “can be

required to make a decision without the benefit of counsel’s advice.” Id.

at 931–32. 21

Senn would be entitled to reversal under the caselaw of only two

other states—Oregon and New York. We are not persuaded to follow

those outliers.

D. Practical Problems. We also consider the practical problems

that would arise by recognizing a broader independent state

constitutional right to counsel during implied-consent chemical testing.

Senn claims that “an individual is entitled to, at a minimum, a private

consultation with counsel at the time at which the State invokes implied

consent” under the Iowa Constitution.

First, any Iowa constitutionally based right to counsel should

apply equally to rich and poor alike. See Iowa Code § 63.6 (requiring

judges to take an oath to “support the Constitution of the United States

and the Constitution of the State of Iowa, and . . . administer justice

according to the law, equally to the rich and the poor”). Iowa has

recognized the right to appointed counsel for indigents at government

expense in felony cases since 1850. See Hall v. Washington County,

2 Greene 473, 478–79 (Iowa 1850). We recently extended that right to

21New York’s remedy for a failure to provide private access to counsel depends

on whether the arrestee takes the test or refuses. If the defendant takes the test, the

court will generally suppress all statements and the test results. See People v. Moffitt,

19 N.Y.S.3d 713, 719–20 (Crim. Ct. 2015) (suppressing test results, statements made to

lawyer, and portion of video depicting conversation); People v. Washington, 964 N.Y.S.2d

176, 186 (App. Div. 2013) (suppressing test results). But if the arrestee refuses to take

the test, the court will suppress the statements made to his or her lawyer but not the

refusal itself. O’Neil, 986 N.Y.S.2d at 312 & n.3 (suppressing statements made to

counsel but noting the violation of the defendant’s right to counsel was “not a basis for

suppression of the refusal” to take the test).

51

indigents facing misdemeanor charges with potential incarceration.

Young, 863 N.W.2d at 281; see also Luis v. United States, 578 U.S. ___,

___, 136 S. Ct. 1083, 1089, ___ L. Ed. 2d ___, ___ (2016) (plurality

opinion) (“[W]e have understood the right [to counsel] to require that the

Government provide counsel for an indigent defendant accused of all but

the least serious crimes . . . .”). A first offense OWI carries a potential jail

sentence. Thus, if we hold an individual is constitutionally entitled to a

private consultation with legal counsel at the time the State invokes

implied consent, the State would need to ensure that public defenders or

court-appointed lawyers are available twenty-four hours a day to field

calls from detained motorists, typically late at night. See Smalls, 120

P.3d at 511.

In addition, we would need to provide continuous court and public

defender access to process applications for court-appointed counsel. See

Iowa Code § 815.10 (providing for “[a]ppointment of counsel by court”).

The State cannot wait until the next morning to effectively test for

evidence of blood alcohol content because the amount drops over time.

See Vietor, 261 N.W.2d at 831 (holding the right to counsel “must be

balanced against the practical consideration that a chemical test is to be

administered within two hours of the time of arrest or not at all”). It

simply is infeasible to assure indigent motorists statewide that lawyers

will be available at government expense at any time of the day or night to

advise them whether to submit to the breath test.

Second, if Senn was entitled to a private consultation with counsel

over the phone, the police or jailers would have to determine who is on

the other end of the line for each phone call made. Iowa Code section

804.20 applies to all detainees, not just motorists suspected of impaired

52

driving. It is easy to imagine detainees taking advantage of private phone

calls to inform confederates to flee or get rid of evidence.

IV. Conclusion.

For these reasons, we conclude the right to counsel under article I,

section 10 of the Iowa Constitution does not attach until formal charges

have been filed by the state in court. Accordingly, the arresting officer in

this case did not violate Senn’s constitutional right to counsel by

remaining in the room during Senn’s phone call with a lawyer. Senn’s

constitutional challenge to Iowa Code section 804.20 fails. We therefore

affirm his conviction.

DISTRICT COURT JUDGMENT AFFIRMED.

Mansfield and Zager, JJ., join this opinion. Cady, C.J., files a

special concurrence. Wiggins, J., files a dissenting opinion in which

Hecht and Appel, JJ., join. Appel, J., files a separate dissenting opinion

in which Wiggins and Hecht, JJ., join.

53

#15–0624, State v. Senn

CADY, Chief Justice (concurring specially).

I concur in the result, but not because the right to counsel under

the Iowa Constitution did not attach at the time the State initiated the

implied-consent process. Even assuming the right to counsel did attach

under the Iowa Constitution, I conclude Senn was not deprived of the

right and that he has not shown the counsel he received was ineffective.

Senn claims that the decision to refuse or submit to a chemical

test following an arrest for the crime of operating while intoxicated was a

critical stage in the proceedings that supports the right to counsel. He

claims the decision is a critical stage because legal counsel is needed to

advise the arrestee of all of the consequences of the implied-consent

process and its full impact. Nevertheless, Senn was in fact provided an

opportunity to consult with an attorney before making the decision. He

also took advantage of the opportunity by talking to an attorney on the

telephone for twenty-eight minutes before making a decision.

Senn claims the conversation he had with the attorney did not

satisfy the constitutional right to counsel. However, no evidence was

introduced to explain how the conversation was inadequate in light of its

purpose. Senn instead assumes the conversation was inadequate

because a law enforcement officer could overhear his side of the

conversation. This assumption is not warranted.

Senn essentially claims the constitutional right to counsel once

implied consent is invoked should be greater than the statutory right to a

phone conversation with an attorney in the presence of a law

enforcement officer or a private in-person consultation. See Iowa Code

§ 804.20 (2013). Yet this claim was not supported by evidence that the

advice Senn needed at that moment could only be provided through a

54

private phone conversation. It may be understandable that some

attorneys want to personally assess the condition of a person arrested for

operating while intoxicated before giving advice on whether or not to

submit to the request for a chemical test. See State v. Walker, 804

N.W.2d 284, 287–88 (Iowa 2011) (detailing how an attorney’s advice was

impeded by a physical barrier between the attorney and his client and by

video surveillance). However, this in-person assessment does not

establish a minimum constitutional standard of counsel. Without

evidence that effective counsel could not be provided by the type of phone

call permitted in this case, I cannot conclude that the constitutional right

to counsel would require any more legal assistance than Senn was

provided in this case. Furthermore, Senn offered no evidence that the

police officer’s ability to hear his side of the phone call rendered the

assistance ineffective.

We normally do not address constitutional claims in a case that

can be resolved on other grounds. See State v. Hellstern, 856 N.W.2d

355, 360 (Iowa 2014) (“We . . . decide the statutory issue first in order to

avoid unnecessary adjudication of constitutional claims.”). This case

falls within that rule. Senn was not denied any constitutional right to

counsel because the facts of the case do not reveal that he failed to

receive advice from counsel to assist in deciding to take a chemical test.

For that reason, I concur only in the result in this case.

55

#15–0624, State v. Senn

WIGGINS, Justice (dissenting).

There is no majority opinion in our resolution of this case today,

and therefore there remains no decision from this court holding the right

to counsel under article I, section 10 of the Iowa Constitution attaches

only upon the filing of a criminal complaint. 22 Because the plurality and

concurring opinions combine to affirm John Arthur Senn Jr.’s conviction,

however, I dissent. I would hold Senn’s right to counsel under article I,

section 10 of the Iowa Constitution was violated when the State arrested

him on suspicion of operating while intoxicated, invoked the statutory

implied-consent procedure, asked him to submit to blood-alcohol testing,

and denied him the opportunity to confidentially consult with his

attorney.

Justice Waterman’s plurality opinion disregards the clear import of

the phrase “in cases involving the life, or liberty of an individual” in

article I, section 10 to conclude the right to counsel under the Iowa

Constitution applies only once formal criminal charges have been filed by

the State. Simply put, that is not what the language in article I, section

10 says; therefore, that is not how we should interpret it. Furthermore,

although the plurality opinion purports to find historical support for its

crabbed interpretation of article I, section 10 in the debates of our

constitutional convention, its factually inaccurate recounting of the

relevant historical context renders equally inaccurate its assessment of

22In a plurality opinion joined by Justices Mansfield and Zager, Justice

Waterman concludes the right to counsel under article I, section 10 of the Iowa

Constitution attaches upon the filing of a criminal complaint. In his special

concurrence, Chief Justice Cady leaves open the question of when the right to counsel

attaches under the Iowa Constitution.

56

the framers’ intentions concerning the scope of the right to counsel

under the Iowa Constitution.

Iowa Code section 804.20 grants arrested persons the right to call

and consult with an attorney and a family member. It provides,

Any peace officer or other person having custody of any

person arrested or restrained of the person’s liberty for any

reason whatever, shall permit that person, without

unnecessary delay after arrival at the place of detention, to

call, consult, and see a member of the person’s family or an

attorney of the person’s choice, or both. Such person shall

be permitted to make a reasonable number of telephone calls

as may be required to secure an attorney. If a call is made,

it shall be made in the presence of the person having

custody of the one arrested or restrained. If such person is

intoxicated, or a person under eighteen years of age, the call

may be made by the person having custody. An attorney

shall be permitted to see and consult confidentially with

such person alone and in private at the jail or other place of

custody without unreasonable delay.

Iowa Code § 804.20 (2013). This case requires us to determine whether

the limitations on the statutory right to counsel set forth in this provision

conflict with the requirements of article I, section 10 of the Iowa

Constitution as applied to a person arrested for operating while under

the influence (OWI) who must decide whether to submit to a chemical

test upon request by a police officer invoking the implied-consent

procedure set forth in the Iowa Code. See id. §§ 321J.6, .8, .9.

A criminal defendant is assured the right to effective assistance of

counsel by the constitutional guarantees of the right to counsel

contained in the Sixth Amendment to the United States Constitution and

article I, section 10 of the Iowa Constitution as well as the constitutional

guarantees of due process of law assuring the right to a fair trial

contained in the Fourteenth Amendment to the United States

Constitution and article I, section 9 of the Iowa Constitution. State v.

Williams, 207 N.W.2d 98, 104 (Iowa 1973). The Sixth Amendment

57

provides, “In all criminal prosecutions, the accused shall enjoy the right

. . . to have the Assistance of Counsel for his defence.” U.S. Const.

amend. VI. In contrast, article I, section 10 provides, “In all criminal

prosecutions, and in cases involving the life, or liberty of an individual

the accused shall have a right . . . to have the assistance of counsel.”

Iowa Const. art. I, § 10.

We have previously determined the Sixth Amendment right to

counsel does not attach when a police officer invoking the implied

consent procedure asks an OWI arrestee to submit to a chemical test.

See State v. Walker, 804 N.W.2d 284, 293 (Iowa 2011). Accordingly, we

held that denying an OWI arrestee the opportunity to consult with an

attorney in the implied-consent context does not violate the Sixth

Amendment to the United States Constitution. State v. Vietor, 261

N.W.2d 828, 830 (Iowa 1978).

However, we have never considered whether the right to counsel

guaranteed by article I, section 10 of the Iowa Constitution affords an

OWI arrestee the right to consult privately with an attorney when an

officer invokes the implied-consent procedure and asks him or her to

consent to a chemical test. State v. Hellstern, 856 N.W.2d 355, 357–58,

365 (Iowa 2014). But see Gottschalk v. Sueppel, 258 Iowa 1173, 1179,

140 N.W.2d 866, 869–70 (1966) (assuming without deciding the right to

counsel assured by the Iowa Constitution did not apply to an

administrative proceeding resulting in license revocation). Thus, this

case requires us to decide a narrow question concerning the scope of the

right to counsel assured by article I, section 10. Namely, we must

determine whether article I, section 10 guaranteed Senn the right to

counsel after he was arrested and Officer Cuppy invoked the implied-

consent procedure. More precisely, we must determine whether Senn

58

faced either “criminal proceedings” against him or a “case involving the

life, or liberty of an individual” when he was asked to consent to a

chemical test following his arrest. 23 Iowa Const. art. I, § 10.

23As we have previously acknowledged, the constitutional guarantees of due

process of law afforded by the Fourteenth Amendment to the United States Constitution

and article I, section 9 of the Iowa Constitution may require the appointment of counsel

for indigent persons in contexts other than criminal prosecutions. See State ex rel.

Hamilton v. Snodgrass, 325 N.W.2d 740, 742 (Iowa 1982); McNabb v. Osmundson, 315

N.W.2d 9, 14 (Iowa 1982); see also Turner v. Rogers, 564 U.S. 431, 444–45, 131 S. Ct.

2507, 2517–18, 180 L. Ed. 2d 452, 463–64 (2011); Walters v. Nat’l Ass’n of Radiation

Survivors, 473 U.S. 305, 332, 105 S. Ct. 3180, 3195, 87 L. Ed. 2d 220, 240 (1985);

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31–32, 101 S. Ct. 2153, 2161–62, 68

L. Ed. 2d 640, 652 (1981). For example, to determine whether an indigent person has a

federal due process right to counsel when the Sixth Amendment right to counsel does

not apply, a court must apply a modified version of the balancing test set forth in

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976).

Lassiter, 452 U.S. at 26–27, 101 S. Ct. at 2159, 68 L. Ed. 2d at 649; Snodgrass, 325

N.W.2d at 742.

Senn raised only his right to counsel under article I, section 10 of the Iowa

Constitution before the district court. Thus, we do not consider whether his right to

due process of law under the federal and state constitutions entitled him to effective

assistance of counsel under the facts of this case. See Meier v. Senecaut, 641 N.W.2d

532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will decide them on

appeal.”). We previously concluded a defendant who was not permitted the opportunity

to speak with his attorney by phone before he consented to a chemical test was not

deprived of due process of law without suggesting we considered the claim under both

the United States Constitution and the Iowa Constitution. Gottschalk, 258 Iowa at

1176, 1181–82, 140 N.W.2d at 868, 870–71.

The United States Supreme Court also recognized a limited right to counsel in

the context of custodial interrogations implicating the Fifth Amendment privilege

against compelled self-incrimination in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.

1602, 16 L. Ed. 2d 694 (1966). McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S. Ct.

2204, 2208, 115 L. Ed. 2d 158, 167 (1991). However, the Miranda right to counsel

under the Fifth Amendment to the United States Constitution does not extend to an

OWI arrestee’s choice to refuse chemical testing when an officer invokes implied-

consent procedures because “a police inquiry of whether the suspect will take a blood-

alcohol test is not an interrogation within the meaning of Miranda.” South Dakota v.

Neville, 459 U.S. 553, 564 n.15, 103 S. Ct. 916, 923 n.15, 74 L. Ed. 2d 748, 759 n.15

(1983).

Although the Iowa Constitution does not contain an express provision equivalent

to the Fifth Amendment guarantee against compelled self-incrimination, a right against

compelled self-incrimination is implicit in the article I, section 9 guarantee of due

process of law. State v. Iowa Dist. Ct., 801 N.W.2d 513, 518 n.2 (Iowa 2011). Before the

district court, Senn did not argue an officer asking him to consent to a chemical test

59

Notwithstanding the state constitutional focus of this inquiry, a

brief review of the scope of the federal right to counsel guaranteed by the

Sixth Amendment to the United States Constitution is instructive. Like

the right to counsel guaranteed by article I, section 10, the right to

counsel guaranteed by the Sixth Amendment applies to “all criminal

prosecutions.” State v. Young, 863 N.W.2d 249, 257 (Iowa 2015).

The Supreme Court has pegged the attachment of the Sixth

Amendment right to counsel on “the initiation of adversary judicial

criminal proceedings—whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.” Rothgery v. Gillespie

County, 554 U.S. 191, 198, 128 S. Ct. 2578, 2583, 171 L. Ed. 2d 366,

374 (2008) (quoting United States v. Gouveia, 467 U.S. 180, 188, 104

S. Ct. 2292, 2297, 81 L. Ed. 2d 146, 154 (1984)). Nonetheless, though

the Sixth Amendment by its terms refers to “criminal prosecutions,” its

protections need not be triggered by a prosecutor filing an indictment.

See id. at 198–202, 128 S. Ct. at 2583–86, 171 L. Ed. 2d at 374–77.

Rather, the Sixth Amendment right to counsel attaches once “ ‘the

government has committed itself to prosecute,’ ‘the adverse positions of

government and defendant have solidified,’ and the accused ‘finds

himself faced with the prosecutorial forces of organized society, and

immersed in the intricacies of substantive and procedural criminal law.’ ”

Id. at 198, 128 S. Ct. at 2583, 171 L. Ed. 2d at 374 (quoting Kirby v.

Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 1882, 32 L. Ed. 2d 411, 418

_________________________

constituted the functional equivalent of custodial interrogation to which a prophylactic

right to counsel broader than that afforded by Miranda and its progeny might apply

under the Iowa Constitution. Accordingly, we need not consider whether an officer

asking an arrestee to consent to chemical testing upon reading an implied-consent

advisory constitutes an inherently coercive circumstance in which the due process

guarantee of article I, section 9 affords the arrestee the assistance of counsel.

60

(1972) (plurality opinion)). Thus, an individual may qualify as an

accused for Sixth Amendment purposes before any prosecutorial

involvement in a criminal proceeding against him whatsoever. See id. at

208, 128 S. Ct. at 2589, 171 L. Ed. 2d at 380. In other words, the Sixth

Amendment right to counsel attaches once the wheels of our “system of

adversary criminal justice” begin to turn. Kirby, 406 U.S. at 689, 92 S.

Ct. at 1882, 32 L. Ed. 2d at 417. Moreover, the government’s

commitment to prosecute an individual may be sufficiently concrete to

trigger the Sixth Amendment right to counsel once “the machinery of

prosecution” has been “turned on by the local police” rather than a

prosecutor. See Rothgery, 554 U.S. at 208, 128 S. Ct. at 2589, 171

L. Ed. 2d at 380. At that point, a prosecution against the accused has

“commenced.” See id. at 198, 128 S. Ct. at 2583, 171 L. Ed. 2d at 374

(quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207,

115 L. Ed. 2d 158, 166 (1991)).

Once the Sixth Amendment right to counsel has attached, it

extends to “all critical stages of the criminal process.” Iowa v. Tovar, 541

U.S. 77, 80–81, 124 S. Ct. 1379, 1383, 158 L. Ed. 2d 209, 215 (2004).

Upon attachment, “the accused is guaranteed that he need not stand

alone against the State at any stage of the prosecution, formal or

informal, in court or out, where counsel’s absence might derogate from

the accused’s right to a fair trial.” United States v. Wade, 388 U.S. 218,

226, 87 S. Ct. 1926, 1932, 18 L. Ed. 2d 1149, 1157 (1967). Recognized

critical stages of the criminal process at which an accused is entitled to

assistance of counsel include, among others, arraignments,

postindictment interrogations, postindictment lineups, and the entry of

guilty pleas. Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1405,

182 L. Ed. 2d 379, 387 (2012).

61

In contrast to its Sixth Amendment counterpart, the right to

counsel guaranteed by article I, section 10 of the Iowa Constitution

applies not only in “all criminal prosecutions,” but also “in cases

involving the life, or liberty of an individual.” Young, 863 N.W.2d at 257–

58 (quoting Iowa Const. art. I, § 10). As the plurality acknowledges, to

determine the scope of the right to counsel guaranteed by article I,

section 10, we must consider how this distinction arose.

Before Iowa became a state, the provision in its territorial

constitution guaranteeing the assistance of counsel to an accused

provided,

In all criminal prosecutions, the accused shall have a

right to a speedy trial by an impartial jury, to be informed of

the accusation against him, to be confronted with the

witnesses against him, to have compulsory process for his

own witnesses, and to have the assistance of counsel.

Iowa Const. art. II, § 10 (1846). Following a state constitutional

convention in 1857, Iowans voted to expand article I, section 10. Thus,

the Iowa Constitution adopted in 1857 provided,

In all criminal prosecutions, and in cases involving the

life, or liberty of an individual the accused shall have a right

to a speedy and public trial by an impartial jury; to be

informed of the accusation against him, to have a copy of the

same when demanded; to be confronted with the witnesses

against him; to have compulsory process for his witnesses;

and, to have the assistance of counsel.

Iowa Const. art. I, § 10 (1857). The language in article I, section 10

today remains identical to that contained in the Iowa Constitution of

1857.

The framers of our state constitution vigorously debated the scope

of the right to counsel to be afforded by article I, section 10 during the

constitutional convention at which our state constitution was adopted.

The most spirited exchange during that debate was devoted to the

62

question of whether the rights guaranteed by article I, section 10 should

apply “in all cases involving the life, or liberty of an individual.” See 2

The Debates of the Constitutional Convention of the State of Iowa 735–41

(W. Blair Lord rep., 1857) [hereinafter The Debates], www.state

libraryofiowa.org/services/collections/law-library/iaconst. However, the

implications of that exchange for the proper interpretation of the scope of

the right to counsel afforded by article I, section 10 come into focus only

when we consider the historical context in which it occurred.

In 1793, Congress passed an act addressing “fugitives from justice,

and persons escaping from the service of their masters.” Act of Feb. 12,

1793, ch. VII, 1 Stat. 302 (codified in part as amended at 18 U.S.C.

§§ 3182–83 (2012), repealed in part 1864). Though the Extradition and

Fugitive Slave Clauses 24 of the United States Constitution endorsed

interstate rendition, the 1793 Act represented the first time Congress

had asserted its authority to legislate it. Christopher N. Lasch, Rendition

Resistance, 92 N.C. L. Rev. 149, 171 (2013) [hereinafter Lasch]. Its

purpose was to facilitate the extradition of fugitives from justice, i.e.,

24The Extradition Clause of the United States Constitution provides,

A person charged in any State with Treason, Felony, or other

Crime, who shall flee from Justice, and be found in another State, shall

on Demand of the executive Authority of the State from which he fled, be

delivered up, to be removed to the State having Jurisdiction of the Crime.

U.S. Const. art. IV, § 2, cl. 2

The Fugitive Slave Clause of the United States Constitution provides,

No Person held to Service or Labour in one State, under the Laws

thereof, escaping into another, shall, in Consequence of any Law or

Regulation therein, be discharged from such Service or Labour, but shall

be delivered up on Claim of the Party to whom such Service or Labour

may be due.

U.S. Const. art. IV, § 2, cl. 3, superseded by U.S. Const. amend. XIII.

63

individuals alleged to have committed crimes, and fugitive slaves, i.e.,

individuals claimed as slaves who had fled to northern states. See Allen

Johnson, The Constitutionality of the Fugitive Slave Acts, 31 Yale L.J.

161, 164 (1921) [hereinafter Johnson]. Prior to the passage of the 1793

Act, the growing division over slavery had fueled the perceived need for

federal legislation addressing the rendition of fugitives from justice,

which historically had been accomplished through comity. Lasch, 92

N.C. L. Rev. at 173. Accordingly, with respect to fugitives from justice,

the 1793 Act provided that upon demand and presentation of an

indictment or affidavit charging a person with committing any crime, the

executive of the state or territory to which the person had allegedly fled

should arrest and deliver the person to the appointed agent of the state

or territory from which he or she had allegedly fled. § 1, 1 Stat. at 302.

It further empowered the appointed agent to transport the alleged

criminal to the state or territory from which he or she had allegedly fled

and made interference with such transport a crime punishable by a fine

or imprisonment. § 2, 1 Stat. at 302.

With respect to fugitive slaves, the 1793 Act authorized any person

to whom labor or service was due, his agent, or his attorney to seize or

arrest an individual, take the individual before any federal judge or local

magistrate, and offer proof by oral testimony or affidavit that the

individual owed service or labor under the law of a state or territory from

which he or she fled. § 3, 1 Stat. at 302–05. It further obligated a judge

or magistrate, upon receiving proof to his satisfaction that an individual

was a fugitive slave, to issue a certificate constituting a sufficient warrant

for his or her removal to the state or territory from which he or she fled.

Id. The Act imposed civil penalties on individuals who obstructed or

hindered the seizure or arrest of fugitive slaves and individuals who

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rescued, harbored, or concealed fugitive slaves. See § 4, 1 Stat. at 305.

Additionally, it created a right of private action for slave owners against

persons who committed such acts. See id.

The rendition proceedings provided for individuals claimed as

fugitive slaves under the 1793 Act were summary proceedings. During

these proceedings, criminal procedural protections did not apply. The

lack of due process afforded during the rendition proceedings under the

Act created many opportunities for unscrupulous bounty-hunters to

kidnap “the occasional free black who was likely to fetch a good price in

the south.” Robert R. Dykstra, Bright Radical Star: Black Freedom and

White Supremacy on the Hawkeye Frontier 89 (1993) [hereinafter

Dykstra]. To commence the summary rendition process, an individual

claiming to be a slave owner or his agent needed only a southern-judge-

signed affidavit. See Lee Kovarsky, Habeas Verité, 47 Tulsa L. Rev. 13,

16 (2011). The Act created no penalties for false claims. Jeffrey M.

Schmitt, Immigration Enforcement Reform: Learning from the History of

Fugitive Slave Rendition, 103 Geo. L.J. Online 1, 2 (2013) [hereinafter

Schmitt].

The 1793 Act was construed to give “substantial independent

responsibility to state judicial systems for adjudicating issues arising in

connection with the rendition of escaped slaves.” James A. Gardner,

State Courts As Agents of Federalism: Power and Interpretation in State

Constitutional Law, 44 Wm. & Mary L. Rev. 1725, 1787 (2003)

[hereinafter Gardner]. Occasionally, state courts in northern states that

were unfriendly to the institution of slavery “exercised their

independence in ways that impeded efforts of slave owners to recover

escaped slaves.” Id.

65

Nevertheless, the weak evidentiary standards sufficient to achieve

lawful rendition under the 1793 Act gave rise to the kidnapping of free

northern blacks through the antebellum period. Paul Finkelman, Sorting

Out Prigg v. Pennsylvania, 24 Rutgers L.J. 605, 622–23 (1993)

[hereinafter Finkelman]. State governments in many northern states,

including Iowa, adopted “personal liberty laws” intended to protect free

blacks from kidnapping. Dykstra, at 89; Finkelman, 24 Rutgers L.J. at

623; Schmitt, 103 Geo. L.J. Online at 3.

Following the passage of the 1793 Act, rendition controversies

involving fugitive slaves and fugitives from justice continued to arise in

the context of the broader dispute over slavery. See Lasch, 92 N.C.

L. Rev. at 163. With respect to fugitives from justice, southern states

refused to extradite individuals accused of kidnapping free blacks to the

north, and northern states refused to extradite those accused of aiding

and abetting fugitive slaves to the south. Id. at 180.

The northern states’ ill-fated legislative efforts met their demise in

1842, when the United States Supreme Court considered the

constitutionality of the 1793 Act and the constitutionality of a state

statute effectively forbidding the seizure and recovery of fugitive slaves in

Prigg v. Pennsylvania, 41 U.S. 539, 10 L. Ed. 1060 (1842). In Prigg, the

Court concluded the Fugitive Slave Clause granted Congress exclusive

power to legislate on the subject of fugitive slaves. 41 U.S. at 541–42,

617–18, 10 L. Ed. at 1061, 1090. Thus, the Court held unconstitutional

“any state law or state regulation, which interrupts, limits, delays or

postpones the right of the owner to the immediate possession of the

slave, and the immediate command of his service and labor.” Id. at 540,

612, 10 L. Ed. at 1061, 1088. In contrast, the Court upheld the

provisions of the 1793 Act setting forth procedures for the rendition of

66

fugitive slaves to be constitutional, save for the provision compelling local

magistrates to issue certificates authorizing the removal of fugitive slaves

while acting in their official state judicial capacities. Id. at 582, 622, 10

L. Ed. at 1077, 1091. The Court invalidated the provision compelling

local magistrates to act on the theory that Congress may not convey

authority to exercise the federal judicial power to persons not holding

federal government commissions. Id.

Prigg effectively invalidated all state legislation giving procedural

protections to individuals claimed as fugitive slaves under the 1793 Act.

Schmitt, 103 Geo. L.J. Online at 3. Paradoxically, Prigg virtually nullified

the portion of the 1793 Act authorizing the removal of fugitive slaves

from northern states. See id. at 4. Though Prigg rendered northern

states unable to legislate procedural protections for individuals claimed

as fugitive slaves at the state and local level, it also forbid Congress from

compelling state cooperation in rendition proceedings under the Act. As

a result, in the aftermath of Prigg, some northern states passed more

robust “personal liberty laws” intended to end all state cooperation in the

rendition of individuals claimed as fugitive slaves by barring state judges

and law enforcement officers from any involvement therein. Lasch, 92

N.C. L. Rev. at 178; Schmitt, 103 Geo. L.J. Online at 3. In other

northern states, state judges simply declined to hear rendition

proceedings involving alleged fugitive slaves. Finkelman, 24 Rutgers L.J.

at 664. The unintended consequence of Prigg was that without

assistance from local state judges and local law enforcement, recovery of

fugitive slaves became far more difficult. See id.; Schmitt, 103 Geo. L.J.

Online at 4.

Congress responded to this state of affairs by passing an Act as

part of the Compromise of 1850 to amend and supplement the 1793 Act.

67

Act of Sept. 18, 1850, ch. 60, 9 Stat. 462 (repealed 1864). In passing the

1850 Act, Congress sought to empower the federal government to enforce

the fugitive slave law despite northern resistance. Schmitt, 103 Geo. L.J.

Online at 4. The 1850 Act did not repeal any portion of the 1793 Act.

Johnson, 31 Yale L.J. at 169–72. Instead, it created the vast federal

infrastructure necessary to meet the demand for fugitive slave rendition

proceedings by authorizing federal judges to appoint commissioners with

authority to preside over those proceedings and issue certificates

permitting the removal of individuals claimed as slaves. See §§ 1–4, 9

Stat. at 462. In addition, it made a marshal’s refusal to receive or

execute an arrest warrant for an alleged fugitive slave a crime punishable

by a fine of one thousand dollars and subjected marshals to civil liability

for the value of the labor of fugitive slaves who escaped from their

custody. See § 5, 9 Stat. at 462–63. It further authorized commissioners

to appoint persons to assist in the execution of arrest warrants and gave

persons so authorized the power to summon bystanders to their aid. Id.

Besides creating the federal machinery necessary to implement

fugitive slave rendition, the 1850 Act explicitly authorized slave owners

and their agents to reclaim fugitive slaves by procuring arrest warrants

or seizing and arresting them directly “without process.” § 6, 9 Stat. at

463. Following arrest, an alleged fugitive slave was to be brought before

a commissioner or judge whose duty was to “hear and determine the case

. . . in a summary manner.” Id. Upon receipt of “satisfactory proof,” the

commissioner or judge was to issue a certificate that would be

“conclusive of the right” of the person in whose favor it was granted to

remove the fugitive slave to the state or territory from whence he came

and “prevent all molestation of such person . . . by any process issued by

any court, judge, magistrate, or other person.” § 6, 9 Stat, at 463–64. A

68

deposition transcript or affidavit duly authenticated by any court in the

state or territory from which a fugitive slave allegedly escaped in which

the claimant affirmed the identity of the alleged fugitive slave and

affirmed that individual in fact owed him service or labor constituted

“satisfactory proof” under the Act. § 6, 9 Stat. at 463. The 1850 Act

expressly forbid the admission of testimony by alleged fugitive slaves into

evidence in their own rendition proceedings. Id. It also provided that

each commissioner charged with hearing rendition proceedings was to be

paid a fee of ten dollars for each proceeding in which he granted a

certificate authorizing the removal of a fugitive slave and five dollars for

each proceeding in which he did not. § 8, 9 Stat. at 464. Finally, unlike

the 1793 Act, the 1850 Act subjected any person who obstructed or

hindered the arrest of a fugitive slave, aided or abetted the escape of a

fugitive slave, or harbored or concealed a fugitive slave to civil and

criminal liability, making such acts a crime punishable by a fine of one

thousand dollars and six months’ imprisonment and making persons

who committed such acts liable to slave owners in civil debt proceedings.

§ 7, 9 Stat. at 464.

Following the passage of the 1850 Act, the fugitive slave law clearly

had much sharper teeth. H. Robert Baker, The Fugitive Slave Clause and

the Antebellum Constitution, 30 Law & Hist. Rev. 1133, 1163 (2012)

[hereinafter Baker]. Indeed, it appeared to have been “drawn with

diabolical ingenuity.” Johnson, 31 Yale L.J. at 171. As one legal

commentator noted, “The features which made this act so odious to men

and women who abhorred human slavery strike one in the face.” Id. The

provisions in the Act severely curtailing the process available to

individuals alleged to be fugitive slaves were particularly problematic:

69

Even if an alleged fugitive slave claimed mistaken identity,

he was forbidden to testify, and relegated to a summary

juryless proceeding in which the magistrate would pocket

ten dollars if he found for the slave catcher but only five

dollars if he found for the black man.

Akhil Reed Amar, The Supreme Court, 1999 Term—Foreward: The

Document and the Doctrine, 114 Harv. L. Rev. 26, 70 (2000) [hereinafter

Amar].

During heavily attended public meetings in northern states, the

amended fugitive slave law was broadly condemned as immoral and

unconstitutional. Baker, 30 Law & Hist. Rev. at 1165. Because it

sharply curtailed the ability of northern states to provide “basic fair-trial

rights, including an unbiased decision-maker” to alleged fugitive slaves,

its passage also “heightened abolitionists’ sensitivity to fair procedure.”

Elizabeth B. Wydra, The Fourteenth Amendment’s Due Process Clause

and Caperton: Placing the Federalism Debate in Historical Context, 60

Syracuse L. Rev. 239, 242 (2010). Although the amended fugitive slave

law did not forbid individuals claimed as fugitive slaves from being

represented by counsel during their summary rendition proceedings, it

did not guarantee counsel for alleged slaves. Paul Finkelman, Legal

Ethics and Fugitive Slaves: The Anthony Burns Case, Judge Loring, and

Abolitionist Attorneys, 17 Cardozo L. Rev. 1793, 1804 (1996). Therefore,

even though the summary proceedings provided for under the amended

law were technically civil proceedings, several northern states provided

appointed counsel to individuals claimed as fugitive slaves facing the

prospect of rendition. Amar, 114 Harv. L. Rev. at 68 n.133; Robert A.

Mikos, Indemnification As an Alternative to Nullification, 76 Mont. L. Rev.

57, 58–59, 59 n.9 (2015). Additionally, “states continued to pass

personal liberty laws and, in some areas, state officials even actively

70

interfered with federal enforcement.” Schmitt, 103 Geo. L.J. Online at

4. 25

It was against the backdrop of this history that the framers of the

Iowa Constitution debated the content of the guarantees to be afforded

Iowans under article I, section 10 and the circumstances in which those

guarantees ought to apply.

On the thirteenth day of the convention, the framers accepted a

proposed amendment to the draft constitution adding the “cases”

language to article I, section 10. 1 The Debates, at 201. Thereafter, as it

appeared in the draft constitution the framers considered during the

convention, the text of article I, section 10 provided,

In all criminal prosecutions, and in all cases involving

the life or liberty of an individual, the accused shall have the

right to a speedy and public trial by an impartial jury, to be

informed of the accusation against him, and have a copy of

the same when demanded; to be confronted with the

witnesses against him, to have compulsory process for his

own witnesses, and to have the assistance of counsel.

See id. 26 More than two weeks later, on the thirty-first day of the

convention, Mr. Amos Harris of Appanoose County moved to strike the

“cases” language from article I, section 10. 2 The Debates, at 736.

Specifically, Mr. Harris proposed striking the phrase “and in all cases

involving the life or liberty of an individual” from article I, section 10,

25When a case involving interference with enforcement of the Act finally reached

the Supreme Court in 1859, the Court summarily upheld the Act as constitutional in its

entirety. Ableman v. Booth, 62 U.S. 506, 507, 526, 16 L. Ed. 169, 170, 177 (1858).

26We acknowledge the text appearing in article I, section 10 of the 1857 Iowa

Constitution differed from that approved during the constitutional convention in two

respects. Compare 2 The Debates, at 741, with Iowa Const. art. I, § 10 (1857). First, it

did not contain the word “all” before the word “cases.” Second, it included a comma

after the word “life.” The transcript of The Debates contains no explanation for these

differences, as the vote rejecting the proposal to eliminate the phrase “and in all cases

involving the life or liberty of an individual” from article I, section 10 was the last

occasion on which the framers discussed article I, section 10 on the convention floor.

71

sparking a fiery debate among the framers as to the meaning and effect

of that phrase. Id. at 736–41.

In support of his proposal to remove the “cases” language from

article I, section 10, Mr. Harris stated his belief that its import would be

“to give any person that may be arrested, who may be taken up in any

shape or way in this state, the right of jury trial immediately, and in this

state.” Id. at 736. He then explained why providing persons who had

“taken up” within the state the right to a jury trial within it would conflict

with the United States Constitution. Id. With respect to fugitives from

justice who committed a crime in another state and fled to Iowa, he

argued the United States Constitution required such persons to be tried

where the offense was committed. Id. With respect to individuals

claimed as fugitive slaves who fled to Iowa, he asserted such persons

could not have a jury trial within the State because state law “would

prevent any person from proving their right to the labor of any person

who might be a slave” as they would be unable to establish a property

right in another person. Id. 27 Accordingly, Mr. Harris opined that

providing fugitive slaves the right to a jury trial in Iowa “would be

equivalent to saying at once, that any slave in the territory of this state

shall have the right to assert his freedom, and cannot be remanded back

into slavery.” Id.

The first person to speak in favor of retaining the “cases” language

was Mr. John Clark of Alamakee County. Id. at 737. Mr. Clark argued

the United States Constitution already secured “to any individual who

27The Supreme Court of the Territory of Iowa, in its first reported case, had

“refused to treat a human being as property to enforce a contract for slavery and held

our laws must extend equal protection to persons of all races and conditions” in a

habeas corpus action brought by a fugitive slave. See Varnum v. Brien, 763 N.W.2d

862, 877 (Iowa 2009) (discussing In re Ralph, 1 Morris 1, 9 (Iowa 1839)).

72

may be arrested under the laws of this State or under the jurisdiction of

this State” all the rights that would be secured to him by the “cases”

language in article I, section 10. In his view, the federal constitutional

provision stating no person shall be deprived of life, liberty, or property

without due process of law already guaranteed that factual

determinations implicating the liberty of alleged fugitive slaves would be

made in common law courts. See id. But he asserted the “cases”

language would have “no reference” to alleged fugitives from justice

“being arrested in preparation for trial,” arguing it would merely assure

such an individual would not “be deprived of liberty . . . upon the trial

which is to settle for all coming time the questions as to his right to

liberty.” Id. He asked, “Are not persons arrested every day for the

purpose of examination, to ascertain whether there is proper cause for

retaining them until they shall be put on final trial?” Id.

Mr. Clark acknowledged the intent of the “cases” language was to

prevent alleged fugitive slaves from having their fate summarily

determined in another state without process. During his passionate

speech on the convention floor, he argued the “cases” language would

secure trial rights essential to state sovereignty:

Gentlemen will say perhaps that there is no danger of my

being claimed as a fugitive slave. I do not know whether

there is not. I apprehend that people as white as I am have

been claimed as fugitive slaves. And if I am found within the

jurisdiction of this State, it is a principle of sovereignty, that

if I am arraigned upon a charge that I do not own myself,

that I am not a free man, I have the right to a trial here

where I am found; and the laws of the State should

guarantee to me that right. We cannot be independent, we

cannot be sovereign, without that right. We cannot protect

our citizens without it. I do not care whether the case is

probable or not.

73

Id. at 737–38. He also sought to illustrate the practical effect of

providing only minimal procedural protections to individuals claimed as

fugitive slaves under the amended fugitive slave law:

Suppose that a man in Missouri comes over here and

claims a horse, which he finds in my possession. He cannot

dispossess me of that horse and take it to Missouri without

giving me the benefit of a jury trial to ascertain whether that

horse is mine or his. But if he wishes to put in a false claim

to that horse, which he would be unwilling to submit to a

jury of this State, where I have the means of proving that the

property is mine, all he has to do is to go back to Missouri

and make out a case describing me as a fugitive slave. Then

he can take me, deprive me of my right of being heard by a

jury, and thus secure me and my horse too!

Id. at 738. Unsurprisingly, he believed there were “serious doubts” as to

the constitutionality of the fugitive slave law. Id. But he acknowledged

that if the law were constitutional, “the higher law, the law of the United

States,” would prevail over article I, section 10. Id.

Next, Mr. James Wilson of Henry County spoke in favor of

retaining the “cases” language in article I, section 10, arguing its

appl

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