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Mogard v. City of Laramie9/24/2001
develop a "long tradition of independent analysis."
[ ] One other case deserves special mention. In Shongutsie, 827 P.2d at 366-67, we held that, in conflict of interest cases involving one attorney's representation of multiple defendants, we would not follow the minimal federal standard under the Sixth Amendment of requiring an appellant to show prejudice by such multiple representation if he had failed to object in the trial court. Instead, we chose to enlarge the right to effective assistance of counsel under Wyo. Const. art. 1, § 10 by holding that prejudice would be presumed in all instances of such multiple representation. Shongutsie, 827 P.2d at 366-67. This result was based not so much on any discernment that the right to counsel is different in Wyoming as on the perception that the federal rule was difficult to implement. We preferred the ease of application of a presumptive rule, and the public policies it promoted.
THE RIGHT TO COUNSEL IN OTHER STATES
[ ] In urging this Court to find a limited right to be represented by counsel before making the decision to submit to chemical testing, the appellant cites several cases from other states that have found such a right to exist. Yerrington v. Anchorage, 675 P.2d 649, 650 (Alaska App. 1983) (citing Copelin v. State, 659 P.2d 1206 (Alaska 1983), cert. denied, 469 U.S. 1017 (1984)) (a statute and a court rule both require a reasonable opportunity to consult with counsel before chemical testing, the right being defined as a "limited statutory right"); State v. Juarez, 161 Ariz. 76, 775 P.2d 1140, 1144-45 (1989) (a criminal rule requires counsel "as soon as feasible after a defendant is taken into custody," but it also violates the Sixth Amendment and the state constitution not to allow access to counsel before the breath test); Sites v. State, 300 Md. 702, 481 A.2d 192, 196-98 (1984) (taking a chemical sobriety test is not a critical stage requiring a Sixth Amendment right to counsel, but due process under the Fourteenth Amendment and the state constitution requires a reasonable opportunity to communicate with counsel before making the decision); Friedman v. Commissioner of Public Safety, 473 N.W.2d 828, 837 (Minn. 1991) (the chemical testing decision is a critical stage in the criminal proceeding, so there exists a state constitutional right to counsel); State v. Sadek, 552 N.W.2d 71, 73 (N.D. 1996) (right to counsel not derived from federal or state constitution, but from state statute); State v. Spencer, 305 Or. 59, 750 P.2d 147, 154-56 (1988) (a person taken into formal custody is confronted with the full legal power of the state, regardless of whether a formal charge has been filed, and at that time, the person is "ensnared in a 'criminal prosecution'" and has the right to counsel); City of Bellevue v. Ohlson, 60 Wash.App. 485, 803 P.2d 1346, 1349 (1991) (a criminal rule requires an arrestee to be provided reasonable access to an attorney prior to submitting to chemical testing); see also Busch v. Commissioner of Public Safety, 614 N.W.2d 256, 258 (Minn.App. 2000).
[ ] Other states have reached a contrary result. Based on its own precedent of finding no distinction between the Sixth Amendment and the parallel provision of the New Mexico Constitution, the New Mexico Supreme Court has held that there is no basis for interpreting that state's constitutional provision more broadly than the Sixth Amendment. State v. Woodruff, 124 N.M. 388, 951 P.2d 605, 609-11 (1997). The court also found that there is no separate due process violation under the Fourteenth Amendment because, in this situation, the right to counsel and the right to due process protect the same value, that being the right to fundamental fairness in the p
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