Facts
On December 1, 2001, James Smith was driving his truck at a high rate of speed when he ran a stop sign at the corner of South Haugh Avenue and Memorial Boulevard in Picayune, Mississippi. As Smith proceeded through the intersection, his truck collided with a Mitsubishi Montero driven by Kimberly Bogan and then careened across Memorial Boulevard striking a Ford Bronco driven by Richard Barry. Barry’s vehicle was propelled from the roadway and came to rest upside down in a ditch adjacent to Memorial Boulevard. As a result of the accident, Bogan suffered minor injuries, while Barry suffered catastrophic injuries, including permanent paralysis which has rendered him virtually bedridden.
Lieutenant David Bean of the Picayune Police Department arrived within minutes of the accident, and witnesses informed him that Smith ran the stop sign. As Bean made his way over to check on Smith’s well being, Bean observed Smith place a twelve-pack of Bud Light beer underneath his vehicle. Bean questioned Smith about the accident and whether he needed medical attention. Smith stated that he did not require medical attention and that he could not remember the accident.
Bean testified that he could smell an intoxicating substance on Smith’s breath, Smith’s speech was slurred, and his eyes were bloodshot. Bean then asked Smith if he had been drinking. After refusing to answer, Smith was offered standard field sobriety tests. Smith cooperated with the horizontal gaze nystagmus test or “pen test,” but refused to cooperate with the “one-leg stand” or “walk and turn” tests. Smith also refused the portable Intoxilyzer breath test. After establishing probable cause, Bean arrested Smith for DUI and read Smith his Miranda rights. Smith acknowledged that he understood his rights and did not request legal or medical assistance at that time. Bean then placed Smith in his patrol car while Bean concluded his investigation of the accident scene. Smith was transported to the police station at approximately 9:50 p.m.
Bean testified that once at the station, he again informed Smith of his Miranda rights and explained Mississippi’s implied consent law. Bean offered Smith the Intoxilyzer 5000 breath test, once at approximately 9:58 p.m and again approximately one-half hour later. Smith refused to submit to either test. The jailer then began recording Smith’s personal information into the computer, taking fingerprints, and conducting other matters incident to the booking process. While Smith was being booked, Bean gave Smith the option of submitting to a blood test. Smith replied, “I’m not refusing, I need to talk to someone, an attorney or somebody.” Bean informed Smith that he would be allowed to make a phone call once the booking process was complete. Smith then refused the blood test. As a result of Smith’s refusal to submit to either a blood or breath test, Bean prepared and had issued a warrant for a sample of Smith’s blood. Smith was then transported to a local hospital where, at 1:00 a.m. on December 2, 2001, a blood sample was drawn and sent to the state crime lab for testing. Smith was then returned to the police station where the booking process was completed.
Emily Jochimsen, the Mississippi Crime Lab forensic toxicologist who conducted the ethyl alcohol analysis of Smith’s blood, testified that the test results indicated that Smith had a BAC of thirteen one-hundredths percent (.13%) at the time the blood sample was taken.
James M. Smith was convicted of aggravated driving under the influence of alcohol under Mississippi Code Annotated section 63-11-30(5) (Rev. 2004) and sentenced to twenty years in MDOC. On appeal, he argued the officer’s refusal to allow Smith to telephone his counsel prior to the completion of the booking process was a violation of Smith’s right to counsel and should result in the exclusion of his blood test results from evidence. MCOA affirmed.
Analysis
Bean testified that Smith did not clearly invoke his right to counsel and that it was department policy not to allow a DUI suspect to make a phone call until after booking.
When asked if he would submit to a breath or blood test Smith responded, “I’m not refusing, I need to talk to someone, an attorney or somebody.” His response was ambiguous at best. This Court does not dispute that, when a suspect invokes his right to counsel, all interrogation must cease. See MSC Grayson. However, an ambiguous mention of possibly speaking with one’s attorney is insufficient to trigger the right to counsel.See SCOTUS Davis v. United States, 512 U.S. 452 (1994) (holding that statement of “Maybe I should talk to a lawyer” was insufficient to trigger right to counsel).
Further, Mississippi’s implied consent law clearly articulates the procedure regarding a DUI suspect’s right to place a telephone call for legal or medical assistance, and the necessity of chemical testing to determine BAC. To this end, Mississippi’s implied consent law provides: “any person who operates a motor vehicle upon the public highways, public roads and streets of this state shall be deemed to have given his consent, subject to the provisions of this chapter, to a chemical test or test of his breath for the purpose of determining alcohol concentration.” Miss. Code Ann.§ 63-11- 5(1) (Rev. 2004). The implied consent law further provides, “any person arrested under the provisions of this chapter shall be informed that he has a right to telephone for the purpose of requesting legal or medical assistance immediately after being booked for a violation under this chapter.” Miss. Code Ann. § 63-11-5(4) (Rev. 2004).
The implied consent law defines “booked” as, “the administrative step taken after the arrested person is brought to the police station, which involves entry of the person’s name, the crime for which the arrest was made, and which may also include photographing, fingerprinting, and the like.” Miss. Code Ann. § 63-11-3(h) (Rev. 2004). Our legislature clearly intended to give a person accused of DUI the right to counsel after booking, not before. Were we to hold that Smith had a constitutional right to counsel prior to being booked, we would in effect require the presence of counsel, upon request, before anyone arrested upon probable cause of DUI could be chemically tested for the presence of alcohol, and thereby declare Mississippi Code Annotated section 63-11-5(4) unconstitutional. This we are not prepared to do.
Furthermore, under the Sixth Amendment to the United States Constitution, the right to counsel attaches only at a “critical stage” in the proceedings against the accused. See MSC Porter. A critical stage arises at any confrontation in which the results might affect the course of the later trial and in which the presence of counsel might avert prejudice at trial. The right to counsel attaches earlier under Mississippi law than it does under the Sixth Amendment. In Mississippi, the right to counsel attaches once the proceedings reach an “accusatory stage.” An “accusatory stage” occurs when a warrant is issued or, when the offender is compelled to appear and answer for the offense, as well as by indictment or affidavit.
Even if this Court were to concede that a right to counsel arose upon arrest, rather than after issuance of the warrant, there is a question as to whether the requesting and taking of a blood sample may fall under the ambit of “custodial interrogation” sufficient to necessitate the protections of the Fifth Amendment right against self incrimination or the Sixth Amendment and Mississippi Constitution article 3, section 26 rights to counsel.
“Custodial interrogation” is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” See MCOA Hampton. Obviously, Smith was in custody; however, the Mississippi Supreme Court has made clear that “there is no forced self-incrimination by obtaining a blood sample.” See MSC Williams v. State, 434 So.2d 1340 (Miss. 1983).
Furthermore, both the Mississippi Supreme Court and the United States Supreme Court have made clear that state- compelled breath and blood test are “physical and real” evidence, not testimonial evidence, and therefore, unprotected by the Fifth Amendment. See MSC Ricks v. State, 611 So. 2d 212 (Miss. 1992).
Since the officers request for and taking of a blood sample cannot be considered custodial interrogation under the law, we cannot conclude that a violation of Smith’s right to counsel occurred as a result of such tests being administered. Therefore, we conclude that Bean’s refusal to allow Smith to telephone an attorney prior to completion of the booking process and before the issuance of the warrant was neither a violation of Smith’s Sixth Amendment right to counsel nor a violation of his right to counsel under the laws of the State of Mississippi. While we have already disposed of this issue, we further find Smith’s argument, regarding exclusion of evidence on the basis of an alleged violation of his right to counsel, baseless and without merit.