Mogard v. City of Laramie9/24/2001
roceeding. Woodruff, 951 P.2d at 609-11. Likewise, the New Jersey Supreme Court has held that there is no state or federal constitutional right to counsel before the decision whether to submit to chemical testing. State v. Leavitt, 107 N.J. 534, 527 A.2d 403, 405 (1987).
[ ] The implied consent decision is not a critical stage of the criminal prosecution under Sixth Amendment analysis, and there are no independent state grounds that require a different result. Id. at 407. The same determination was made in State v. Allen, 485 A.2d 953, 955-56 (Me. 1984); Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736, 740 (1986); and Dunn v. Petit, 120 R.I. 486, 388 A.2d 809, 810-13 (1978). In Missouri, a DWUI arrestee's right to counsel at the chemical testing decision stage is statutory and not constitutional. Brown v. Director of Revenue, 34 S.W.3d 166, 171 (Mo.App. 2000). In Idaho, the implied consent scenario is considered to be civil, rather than criminal, in nature, so the right to counsel has not been recognized under either the Sixth Amendment or the Idaho Constitution. Matter of Triplett, 119 Idaho 193, 804 P.2d 922, 923-24 (1990).
[ ] As outlined in the Wyoming cases previously cited, this Court has followed the lead of the United States Supreme Court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), in finding that the right to counsel under the Sixth Amendment does not accrue until "adversarial criminal proceedings" have been initiated. The states that find there is no federal or state constitutional right to counsel at the time of the chemical testing decision generally follow the same reasoning in finding that the decision is not a critical stage in the criminal proceeding, and in finding that adversarial criminal proceedings do not begin until the formal charge has been filed. See, e.g., State v. Hoch, 500 So.2d 597, 598-99 (Fla.App. 1986); Allen, 485 A.2d at 955-56; State v. Delisle, 137 N.H. 549, 630 A.2d 767, 767-68 (1993); Leavitt, 527 A.2d at 405; Dunn, 388 A.2d at 810-13; and McCambridge v. State, 778 S.W.2d 70, 71-77 (Tex.Crim.App. 1989), cert. denied, 495 U.S. 910 (1990).
[ ] There are three reasons why the chemical testing stage is not a critical stage in criminal proceedings. 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. Charpentier, 736 P.2d at 725; Delisle, 630 A.2d at 768; McCambridge, 778 S.W.2d at 74. 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 [the accused's] rights under the sixth amendment.'" Delisle, 630 A.2d at 768 (quoting State v. Petkus, 110 N.H. 394, 397, 269 A.2d 123, 125 (1970), cert. denied, 402 U.S. 932 (1971)). 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. Hoch, 500 So.2d at 600-01; State v. Reitter, 227 Wis.2d 213, 595 N.W.2d 646, 659 (1999).
CONCLUSION
[ ] We find persuasive those cases that have declined to find in their state constitution an "enlarged" right to counsel that would extend to the time at which a DWUI arrestee is deciding whether to submit to chemical testing of his blood alcohol or controlled substance content. As in New Mexico, we have no basis in Wyoming for interpreting our state's constitutional provision as providing more protection than the Sixth Amendment. Wyoming has no constitutional history or pre-constitutional statutory law that suggests
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