Does a denial of advice of counsel before stating whether or not to submit to a test and before deciding which test to take, is denial of any constitutional right?
California, United States of America
The following excerpt is from Fallis v. Department of Motor Vehicles, 264 Cal.App.2d 373, 70 Cal.Rptr. 595 (Cal. App. 1968):
Neither the denial of the opportunity for advice of counsel before stating whether one will submit to a test and before deciding which test to take, nor the denial of the opportunity to have counsel present while the test is administered, is the denial of any constitutional right. Schmerber v. State of California, 384 U.S. 757, 766, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908.
One aspect of the record requires comment. One of the arresting officers had advised licensee of his rights under the Fifth and Sixth Amendments as defined in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
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It was only thereafter that the licensee was asked if he would take the test. The problem inherent in such a sequence is pointed out in People v. Ellis, 65 Cal.2d 529, 539, 55 Cal.Rptr. 385, 390, 421 P.2d 393, 398, where the court said:
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