Forte v. State

CLINTON, Judge,

dissenting.

That the “implied consent” statutes were originally drafted with Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), firmly in mind has been demonstrated. See Note, Driving While Intoxi *140 cated and the Right to Counsel: The Case against Implied Consent, 58 Tex.L.Rev. 935 (1980). Believing that that decision had rendered forced extraction of blood or breath for chemical testing of dubious federal constitutional validity, the legislatures of the various states appended an “implied consent” upon the privilege to drive, but in deference to Rochin, supra, made that consent revocable, subject, however, to certain sanctions such as suspension of the driving privilege, designed to encourage consent in fact. Implied consent statutes became anachronistic following the subsequent decision in Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966), in which the Supreme Court ruled that forced extraction of blood for chemical testing with probable cause would offend neither Fourth nor Fifth Amendment principles. Clearly our Legislature now recognizes it is not Rochin-hoxmd, for it has since provided that, if an accident has occurred in which someone has died or is likely to, extraction of a specimen of blood or breath is mandatory. See Acts 1983, 68th Leg., p. 1577, ch. 303, § 4, eff. Jan. 1,1984. Likewise a dead person cannot withdraw his “implied consent,” for pragmatic as well as legal reasons. Id. Nevertheless, under Article 670N-5, V.A.C.S., any other D.W.I. suspect who is willing to suffer the consequences may refuse to give a specimen.

The majority today joins those jurisdictions which characterize this bit of statutory grace as a “power,” but not a “legal right.” See, e.g., State v. Jones, 457 A.2d 1116 (Me.1983). Because his option to refuse is subject to sanctions, reasons the majority, the suspect has no “legal choice” to make, and thus has no call to consult with an attorney before making the practical decision whether to submit to testing. * But the fact that the Legislature chose to impose sanctions in an effort to make “actual” out of “implied” consent, rather than simply to require the taking of specimens across the board, as would have been constitutionally permissible, does not make its pronouncement that, upon the suspect’s refusal to give a specimen, “none shall be taken,” any less authoritative. Is his option thus to negate the implied consent not legally enforceable? Surely we would hold, in light of this mandatory language, taken together with the clear dictates of Article 38.23, V.A.C.C.P., that any specimen forcibly taken in spite of an accused’s express refusal would be inadmissible against him in a criminal trial. See State v. Hitchens, 294 N.W.2d 686 (Iowa 1980); Pena v. State, 684 P.2d 864 (Alaska 1984). Whether characterized as a “right” or merely a “power,” it would seem to me the accused has been given a critical choice. As in Copelin v. State, 659 P.2d 1206, at 1213 (Alaska 1983), albeit in context whether a statutory right to counsel should extend:

“[T]he law has deliberately given the arrested person a choice between two very different alternatives and potential sanctions. The arrested driver must weigh and evaluate a number of different factors. He may only be vaguely aware of some of these and need not be informed of all of them by the police. [Footnote omitted.]

The decision as to whether to comply with an arresting officer’s request to take a sobriety test is not a simple one. Clearly, an attorney’s advice at this stage would not only be ethical and lawful, but helpful. The choice which an individual driver must make is a meaningful and binding one that will affect him in subsequent proceedings. * * * Given the conclusive nature of the evidence which the accused is asked to provide, this decisive point may be the only occasion when this statutory right is of any use.”

So long as the Legislature affords the option to refuse to submit a blood or breath specimen, I would hold that Article I, § 10 of the Texas Constitution also affords a right to counsel for the suspect confronted *141 with that choice. Because the majority does not so hold, I respectfully dissent.

TEAGUE, J., joins.

If this is so, one must wonder why the majority rejects the State's contention that, the choice to refuse being illegal, it would be unethical for counsel to advise that option. It would seem to follow.