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STATE v. ROBERTS6/1/1992
Alan Roberts appeals from a conviction of operating under the influence (OUI) entered in the District Court (Waterville, MacNichol, J.) and affirmed by the Superior Court (Kennebec County, Kravchuk, J.). Roberts contends that his refusal to submit
Roberts was arrested on January 25, 1991, after Officer Main of the Waterville P.D. observed him driving erratically, smelled alcohol on his breath and noticed other indicia of intoxication. When he failed to produce a valid drivers' license, Roberts was charged with operating under the influence and operating after suspension (OAS). Officer Main read him the statutory "implied consent" form despite Roberts' protestations and Roberts refused to submit to chemical testing to measure his
At the hearing, the District Court denied Roberts' motions to suppress his refusal to submit to a chemical test and found him guilty on the OUI and OAS counts. Roberts was sentenced to a 48 hour jail term and a 90 day license suspension on the OUI charge. The Superior Court denied his appeal of the OUI conviction.
We review the District Court proceedings directly. State v. Arnheiter, 598 A.2d 1183, 1184 (Me. 1991). We will disturb the decision of the District Court only if we find errors of law or clearly erroneous findings of fact. Interstate Indus. Uniform Rental Service, Inc. v. Couri Pontiac, Inc., 355 A.2d 913, 917 (Me. 1976); M.R.Civ.P. 52(a).
I.
The United States Supreme Court has held that a state may compel a suspect to submit to a chemical test without violating the federal Constitution. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Court reasoned that allowing the suspect to choose whether to submit to testing was "a matter of grace" bestowed by the state legislature and, thus, not subject to constitutional protections. Id. at 565, 103 S.Ct. at 923. It held that failure to warn a suspect of all the consequences of refusal did not run afoul of the Due Process Clause. Id. at 566, 103 S.Ct. at 924. We have noted that the right to a warning of the consequences of refusing a chemical test is not one of constitutional dimensions. State v. Plante, 417 A.2d 991, 994 (Me. 1980).
By statute, officers are instructed to give a specific set of warnings in order to render refusal to submit to testing admissible in court. 29 M.R.S.A. § 1312 (pamph. 1991). The implied consent form
29 M.R.S.A. § 1312(8) provides that if the requisite warning is given, evidence of refusal to submit to testing is admissible to show intoxication. Pursuant to 29 M.R.S.A. § 1312-B(2) the court was required to consider Roberts' refusal to undergo chemical testing as an aggravating factor. Section 1312-B(2)(B)(4) further specifies that because of that refusal, the court could not suspend the imposition of a minimum fine of $300, a minimum jail term of 48 hours and a 90 day license suspension. The court properly complied with these statutory mandates.
II.
Roberts argues that he had a right to consult counsel before deciding whether to take the chemical test. We have held that there is no right to consult an attorney before deciding whether to submit to chemical testing. State v. Jones, 457 A.2d 1116 (Me. 1983). The analysis of when a Sixth Amendment right to counsel applies is based on the stage of the prosecution. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). That a more severe penalty may accrue does not render the decision a "critical stage." The reasoning in Jones remains undisturbed;
Although the test may seem critical because its results are so
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