Attorney advising client arrested for DWI to refuse to submit to blood, breath or urine tests under A.R.S. § 28-691 (A).

FACTS

The inquiring attorney regularly represents clients who are arrested for driving while intoxicated. He has inquired whether he is ethically prohibited from advising such a client to refuse to submit to “a test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood,” as provided in A.R.S. 5 28-691 (A). The inquiring attorney's inquiry is prompted by the dissenting opinion of Judge Livermore in State v. Holland, _____ Ariz. , 711 P.2d 602 (App. 1985), aff'd, _____ Ariz. _____ 711 P.2d 592 (1985). Judge Livermore's dissent suggests applicable provisions of the Rules of Professional Conduct prohibit such advice.

QUESTION

May an attorney ethically advise a client arrested for driving while intoxicated to refuse to undergo blood, breath, or urine tests?

ETHICAL RULES INVOLVED

ER 1.2 (d), 2.1, 3.4 (a )

OPINION

This inquiry presents a difficult and complex question. Because the problem arises out of a statutory framework that has been the subject of repeated recent interpretations by the Arizona courts, we begin by review of the relevant statutes and recent judicial decisions. Arizona's implied consent law, A.R.S. § 28-691 (A), provides that anyone operating a motor vehicle within the state gives his consent “to a test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have be,n committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor." Since A.R.S. § 28-692(H) requires that blood or urine tests be administered by a physician, nurse, or other qualified person other than the arresting officer, restrictions not applicable to a breath test, the usual practice after arrest involves a so-called “breathalyzer" test.

A.R.S. § 28-691 (B) provides that, after arrest, a "violator" shall be requested to submit to an appropriate test. If the person refuses to submit to the test, he is warned that his license to drive "will be suspended or denied" if he continues such refusal. Id. Such refusal is thereafter reported to the Department ofTransportation, which is required to suspend the violator's license for a period of twelve months.

In Campbell v. Superior Court, 106 Ariz. 542, 479 P. 2d 685 (1971), the Supreme Court held that a driver arrested for driving while intoxicated may be required, under the implied consent theory, to undergo the tests mandated by A.R.S. § 28-691(A). The Court further held that a driver is not entitled to the assistance of counsel in deciding whether or not to submit to the breathalyzer test. 106 Ariz. at 550, 479 P.2d at 693.

The Supreme Court began by focusing on the language of A.R.S. § 28-691(D), which provided in relevant part that “(i) f a person under arrest refuses to submit to a chemical test . . . as provided in subsection A, none shall be given.” Justice Hays' opinion stated that “[t] his language does not give a person a 'right' to refuse to submit to the test only the physical power." 106 Ariz. at 549, 479 P.28 at 692. Citing a related California case with approval, the Supreme Court stated that the reason for  acquiescence in the refusal of the test by the driver, despite his “implied consent” to such testing, is the desire "to avoid the violence which would often attend forcible tests upon recalcitrant inebriates.” Id

Given its reading of the statute, the Supreme Court then concluded that there was no right to counsel before the defendant was asked to take the test. Analogizing the case to Schmerber v. State of California, 384 D.S. 757 (1966), the Supreme Court stated:

As previously noted, under Arizona's Implied Consent Law a person does not have a right to refuse to submit to a chemical test only the physical power; therefore, as in Schmerber, there is no issue of counsel's ability to assist respondent in respect of any rights he did possess. It is the opinion of this court that respondent was not entitled to the assistance of counsel in deciding whether or not to submit to the breathalyzer test.

106 Ariz. at 550, 479 P.28 at 693 (emphasis in orginal).

Subsequent judicial decisions, particularly McNutt v. Superior Court, 133 Ariz. 7, 648 P.2d 122 (1982), and State v. Holland, supra, have delineated the circumstances under which a driver is entitled to consult with counsel when arrested for drunk driving. Those decisions do not overrule Campbell; indeed, McNutt cites Campbell with approval, stating that

defendant has no right to delay by demanding to consult with counsel before being required to choose between a blood alcohol test or possible driver's license suspension as provided in A.R.S. § 28-691. Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971).

133 Ariz. at 10 n.2, 648 P.28 at 125 n.2.

The problem presented in this inquiry is brought into focus by the opinions of the Court of Appeals and the Supreme Court in State v. Holland, supra. There, the defendant was allowed by the police to telephone his attorney at a time before the request for the breathalyzer test was made. However, the police did not allow the call to be a private one; the officer who placed the call remained in earshot of the defendant. Under these circumstances, the majority of the Court of Appeals held that the  defendant's rights had been violated, and affirmed the trial court's dismissal with prejudice of the DUI charge against defendant.

In dissent, Judge Livermore cited Campbell for the proposition that the defendant had no right to consult with counsel at this stage of the proceedings. Citing former DR 7-102 (A) (7), former DR 7-102 (A) (3), and present ER's 1.2 (d) and 3.4 (a), Judge Livermore stated that “there is no way in which an attorney can legitimately assist his client” under these circumstances. Rather, he stated, the relevant DR's and ER's “seem to me to forbid a lawyer to counsel his client not to take the legally required breath test. To me such counsel is no different than telling a client not to respond to a subpoena duces tecum or not to testify because the case would go better if the opposing side did not have the evidence they were legally entitled to.”

In an opinion issued on December 9,1985, the Supreme Court unanimously affirmed the opinibn of the Court of Appeals. Justice Cameron's opinion for the Court did not directly address the point raised in dissent by Judge Livermore about the propriety of counsel's advice on the issue of submitting to a breathalyzer test. Rather, the Supreme Court held that “where, as in this case, a person is allowed to consult with counsel he has a right to do so in private.” Since the police allowed Holland to consult with counsel, the Supreme Court held that the defendant' s rights vere violated when the police refused to allow the consultation to be a private one.

In so ruling, the Supreme Court reaffirmed the ruling in Campbell that a person is not entitled to consult with counsel prior to deciding whether or not to take a reathalyzer test. The Court cited with approval language from both Campbell and McNutt to that effect. However, the Court distinguished those cases, since in Holland the defendant was afforded the opportunity to consult with counsel. The issue was therefore not the ability to consult, but whether a consultation, once allowed, must be private. On that score, the Court affirmed the majority opinion below.

We have reviewed the relevant statutes and case law at length because we think it important at the outset to emphasize what this Committee can and cannot do. We can advise lawyers as to the ethical consequences of proposed conduct: we cannot decide questions of law. State Bar of Arizona, Committee on Rules of Professional Conduct, Statement of Jurisdictional Policies, Paragraphs 3, 6. We therefore reject the inquiring attorney's invitation to consider whether Campbell retains its full vitality in the light of the recent enactment of A.R.S. 5 28-692(B), which makes it a crime (in some cases, a felony) to operate a motor vehicle while there is .10 percent or more by weight of alcohol in a persons blood. Similarly, we cannot oplne as to what circumstances, if any, give rise to a defendants ability to consult with counsel before the request for a test under A.R.S. § 28-691 is made. See generally McNutt v. Superior Court, supra; State v. Holland, supra.

For the purpose: of this opinion, we assume arguendo that a defendant has for some reason been allowed to contact counsel at a time before he has either submitted, or refused to submit, to a test under A.R.S. § 28-691. The sole question addressed by this opinion is whether counsel may ethically advise his client, under those circumstances, to refuse to submit to the test.

The starting point::is ER 1.2(d), which provides:

           A lawyer shall not counsel a cltint to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

There can be little doubt that ER 1.2(d) allows a lawyer. under the circumstances presented by this inquiry, to discuss with his client the 'legal consequences' of a refusal to submit to a breathalyzer test. Specifically, the lawyer may tell the client that such refusal will almost surely result in the loss of a license for a year. Additionally, the rule plainly allows the lawyer to discuss with his client the “legal consequences" of submitting to the test. Such consequences may include the providing of evidence to the police which will be instrumental in convicting the client of a crime.

But, while ER 1.2(d) provides sanction for “discusstion" of “legal consequences," it is less clear on the issue of explicit advice. It ls one thing to tell a client that proposed conduct may violate the antitrust laws, for example. It is quite another to advise the client affirmatively to undertake such conduct. ER 1.2(d), recognizing the distinction, explicitly forbids a lawyer to "counsel a client to engage...in conduct that the lawyer knows is criminal or fraudulent.” Neither “criminal” nor "fraudulent" is explicitly defined in either the Rule or the accompanying Comment.

If ER 1.2 (d) were the only relevant Rules provision, we might be hard pressed to conclude that it forbade advice to the client to refuse to submit to the test. Such conduct may be proscribed by law, but we know of no provision that makes it "criminal." Similarly, we do not believe that failure to submit to the test fits within the commonly accepted understanding of the word “fraudulent."

However, another Code provision, ER 3.4(a), is also highly relevant. That provision states that a lawyer shall not:

unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.

There can be little doubt that the results of a breathalyzer test are evidence highly relevant to a possible prosecution for drunk driving. See Gaunt v. Motor Vehicle Division, 136 Ariz. 424, 666 P.2d 524 (App. 1983). Nor can there be any doubt that what the inquiring attorney proposes to do is to “counsel" his client to “obstruct another party's access to that evidence.”

Therefore, the critical question under ER 3.4 (a) is whether a driver who refused to submit to a breathalyzer test is “unlawfully" obstructing the other party's access to evidence. Under the clear language of the Campbell decision, we

^{1. Cf. ER 2.1 ("In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.")}

are constrained to hold that the Supreme Court has already so ruled. If the driver has no right to refuse to submit to the test, then his refusal to do so is plainly unlawful. Phrased differently, it seems to us that Campbell holds, as a matter of law, that the driver is required to take the test. If this is the case, his failure to take it is plainly "unlawful.”

The inquiring attorney argues strenuously that the statutory scheme does not make refusal to take the test unlawful, but rather provides the arrested driver with an option, and merely provides a civil penalty for those who choose the option to refuse to submit. Whatever merit that argument might have in the abstract, we are not writing on a clean slate. Campbell expressly rejects the idea of an “option," directly holding that while the driver has the power to refuse to submit, he has no right to do so.

Nor does the fact that the only penalty which is imposed for refusal to submit is a civil one change the fact that the course of conduct which the inquiring attorney proposes to counsel is “unlawful.” A client who refuses to comply with discovery orders or a subpoena duces tecum in a civil matter may, as a matter of law, only face civil penalties for his disobedience. Yet, such disobedience is plainly unlawful, and should not be counieled by an attorney. We can perceive no meaningful distinction here, in light of the Supreme Court's decision in Campbell.

In short, we hold that, given the language of the decision of the Supreme Court in Campbell, an attorney may not, consistent with the Rules of Professional Conduct, advise his client to refuse to submit to a blood alcohol test upon being arrested for driving while intoxicated. Cf. Davis v. Goodson, 635 S.W.2d 226 (Ark. 1982) (counsel may not advise his client to refuse to submit to a court-ordered breathalyzer test). He may, however, "discuss the legal consequences of any proposed course of conduct with a client," pursuant to ER 1.2(d), and may therefore discuss with the client the consequences of a refusal to take the test, without actually counselling refusal.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.

© State Bar of Arizona 1986