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STATE v. BRISTOR11/30/1984
The opinion of the court was delivered by
This case is before the court on a Petition for Review of the decision of the Court of Appeals found at 9 Kan. App. 2d 404, 682 P.2d 122 (1984). The State appealed the trial court's pretrial order suppressing the results of the blood alcohol test (BAT) given to Randy Bristor (defendant-appellee) shortly after he was arrested for driving under the influence of alcohol. K.S.A. 1983 Supp. 8-1567. The trial court suppressed the test results on the ground the defendant was denied his constitutional right to consult with counsel prior to deciding whether to submit to the test. The Court of Appeals affirmed, holding that under the Sixth Amendment the defendant must be permitted a reasonable opportunity to contact counsel before deciding whether to submit to the test. We granted review.
The facts are undisputed and are set out in detail in the Court of Appeals opinion. 9 Kan. App. 2d at 404-05. We will briefly summarize them here. On the evening of July 30, 1982, defendant Bristor was stopped and arrested for DUI by a highway patrol trooper. Bristor was informed of his Miranda rights while at the scene of the arrest. He was then transported to the Dodge City Law Enforcement Center. Upon Bristor's arrival, the officer requested that he take a breath test pursuant to K.S.A. 8-1001. Bristor asked to be allowed to telephone his attorney before deciding whether to take the test. The officer refused, and Bristor consented to the BAT. After providing the breath sample, he was allowed to call his lawyer.
Bristor filed a pretrial motion to suppress the test results. After conducting a hearing, the trial court ordered the results of the BAT be suppressed on the ground that the defendant's consent to the test was obtained in violation of his constitutional right to counsel.
In affirming the trial court, the Court of Appeals held the defendant's Sixth Amendment right to counsel had attached because, under Kansas law, an arrest marks the initiation of the
criminal prosecution, and, also, the decision of whether to submit to a BAT is a "critical stage" of the prosecution. The Court of Appeals went on to qualify this right by holding the defendant must be afforded only a "reasonable" opportunity to contact an attorney if it can be done with "reasonable" expedition.
In his dissent, Judge John Rees reasoned that an arrest, in and of itself, does not mark the initiation of the criminal prosecution. He said that under both Kansas and federal caselaw, the prosecution of a DUI case does not begin until the complaint is filed. He concluded that no complaint had been filed against Bristor when the BAT was taken, and, accordingly, the Sixth Amendment right to counsel had not yet attached.
The single issue presented in this case is whether an individual arrested for driving under the influence has a Sixth Amendment right to counsel prior to submitting to the chemical blood test required by the Kansas implied consent law.
This court was recently confronted with a similar situation in Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984). In Standish, the defendant was arrested for DUI, given his Miranda warning, and then asked to submit to a BAT. The defendant said he wanted to speak with his attorney before taking the test. The police officers allowed the defendant to attempt to call his attorney, but he was unable to reach him. The defendant continued to refuse the test until he could speak with his attorney. When he later agreed to submit, the police officers declared that it was too late.
In a subsequent administrative hearing, it was determined the defendant's r
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