STATE v. WELCH, 136 Vt. 442 (1978)

STATE v. WELCH, 136 Vt. 442 (1978)
394 A.2d 1115

State of Vermont v. Gene Welch

No. 169-77Supreme Court of Vermont.
Opinion Filed September 11, 1978Mandate Stayed for 30 days from October 2, 1978; October 5, 1978Motion for Stay of Mandate Denied October 31, 1978

1. Constitutional Law — Self-Incrimination — Refusal To Take Alcohol Content Test

Admission of refusal to consent to breath test for blood alcohol content upon arrest for suspected driving under the influence was not in violation of privilege against self-incrimination. 23 V.S.A. § 1205(a).

2. Appeal and Error — Plain Error — Situations Not Constituting

Where person charged with driving while intoxicated did not present to trial court the claim that failure of police to advise him of alleged right to counsel to assist in decision whether to take breath test denied right to counsel at critical stage of the proceedings and made refusal inadmissible at trial, the claim could not be considered on appeal, and supreme court could find no glaring error so grave that it struck at heart of constitutional rights andPage 443
allowed consideration of the claim under the “plain error” rule. 23 V.S.A. § 1205; V.R.Cr.P. 52(b).

3. Appeal and Error — Plain Error — Tests

Supreme court will not consider questions not raised below, and plain error rule allowing consideration applies only in those rare and extraordinary circumstances where a glaring error at trial was so grave as to strike at heart of appellant’s constitutional rights.

4. Constitutional Law — Right to Counsel — Taking of Blood, Fingerprints, Hair Samples, etc.

That police may not, without reason, deny access between defendant arrested for driving under the influence and his lawyer when a lawyer is requested and readily available does not make a request to submit to a breath test a critical stage of the proceedings at which a right to counsel, and thus a right to be advised of that right, attaches.

5. Motor Vehicles — Alcoholic Tests — Refusal To Take Test

Right to refuse to take test for blood alcohol content upon detention for suspected driving while intoxicated is solely a creature of statute; there is no constitutional right to refuse. 23 V.S.A. § 1202.

Driving under the influence conviction was appealed. District Court, Unit No. 5, Washington Circuit, Connarn, J., presiding.Affirmed.

Gregory W. McNaughton, Washington County State’s Attorney, Montpelier, for Plaintiff.

James L. Morse, Defender General, Charles S. Martin, Appellate Defender, and William A. Nelson (On the Brief), Montpelier, for Defendant.

Present: Barney, C.J., Daley, Larrow, Billings and Hill, JJ.

Billings, J.

This is an appeal from a judgment of the district court after a trial by jury, convicting the defendant of operating a vehicle on a highway while under the influence of intoxicating liquor.23 V.S.A. § 1201(a)(2). The issues on appeal revolve around the processing of the defendant at the police station after he was detained.

Defendant first claims that his responses refusing to consent to a breath test were compelled testimonial communications, which the trial court erroneously admitted into evidence in violation of his privilege against self-incrimination.Page 444
U.S. Const. amends. V, XIV; Vt. Const. ch. I, art. 10. We have disposed of this claim in our recent decision, State v.Brean, 136 Vt. 147, 385 A.2d 1085 (1978), where we stated:

We hold that the admission of refusal evidence, as expressly authorized by 23 V.S.A. § 1205(a), does not violate defendant’s privilege against self-incrimination. . . .

Id. at 152, 385 A.2d at 1088.

Defendant next claims that the failure of the police to advise him of an alleged right to counsel to assist him in deciding whether to take a breath test denied him a right to counsel at a critical stage of the criminal proceeding in violation of his federal constitutional rights. U.S. Const. amends. VI, XIV. Because of this alleged violation, defendant asserts that evidence of his refusal was inadmissible at trial.

On this claim of error, defendant faces an initial insurmountable obstacle. We have perused the record with care, and we find that this point was not presented to the court below. It is the established rule in this jurisdiction not to consider questions that have not been raised below. State v.Hood, 123 Vt. 273, 277, 187 A.2d 499, 502 (1963); V.R.Cr.P. 51. At oral argument, however, defendant has urged us to consider the claimed error under the so-called “plain error” rule.State v. Morrill, 127 Vt. 506, 253 A.2d 142 (1969); V.R.Cr.P. 52(b). We decline to do so.

The plain error rule should be invoked only in the most exceptional circumstances. Reporter’s Notes, V.R.Cr.P. 52(b), at 170. Fairness and judicial economy mandate that any questioned ruling be brought to the attention of the court below in a manner to give notice of the difficulty and an opportunity for correction. If the rule were otherwise, counsel might at times be tempted to remain silent about some fault on the part of the trial court, and so, without giving it a chance to correct the situation, arm themselves with ground for reversal if the verdict should go against them. See State v.Hood, supra, 123 Vt. at 277-78, 187 A.2d at 502.Page 445

For us to reach defendant’s right to counsel claim, we must find that this is one of those rare and extraordinary cases where a glaring error occurred during trial that was so grave and serious that it strikes at the very heart of defendant’s constitutional rights. State v. Morrill, supra, 127 Vt. at 511, 253 A.2d at 145. Citing State v. Welch, 135 Vt. 316,376 A.2d 351 (1977), defendant argues that a request to submit to a breath test is a critical stage of the criminal proceeding at which a right to counsel arises, and so also a right to be advised of the right to counsel. See 135 Vt. at 318-22, 376 A.2d at 353-55. Welch, however, held only that police officials may not, without reason, deny access between defendant and his lawyer, when a lawyer is requested and is readily available. 135 Vt. at 322, 376 A.2d at 355. In the opinion we noted the “immense difference” between a failure to advise a defendant of his right to counsel and a refusal to allow him ready access to counsel after he has requested same. 135 Vt. at 319, 376 A.2d at 353. The decision cannot be read as holding that a request to submit to a breath test is a critical stage in the federal constitutional sense. Moreover, we note that the right to refuse to take the test is solely a creature of statute; there is no constitutional right to refuse. State v. Brean, supra, 136 Vt. at 152, 385 A.2d at 1088. In summary, we find no error so glaring and grave that it strikes at the very heart of defendant’s constitutional rights. Nor have we any reasonable basis for a fear that injustice has been done. See State v.Hood, supra, 123 Vt. at 278, 187 A.2d at 502. Thus, we decline to reach defendant’s right to counsel claim.

Finally, defendant asks that the cause be remanded for a determination of whether he made a timely request to consult with counsel; he seeks to invoke the prior Welch decision,135 Vt. 316, 376 A.2d 351. Again we note that this point was not raised below. Moreover, State v. Welch was decided June 7, 1977, after the proceedings here at issue took place. We decline to give Welch retroactive effect. Cf. Adams v.Illinois, 405 U.S. 278 (1972) (right to counsel at preliminary hearing not given retroactive effect). In any event,23 V.S.A. § 1202(b), as amended in 1977, mandates that a person who is requested by a law enforcement officer to submit to a chemical test shall have the right to consult an attorney prior to decidingPage 446
whether or not to submit to the chemical test. The person must decide whether to take the test within a reasonable time but no later than thirty minutes from the time of the initial attempt to contact the attorney.

Affirmed.