Archive for February 21st, 2005

DUI and the Disappearing Right to Counsel

Monday, February 21st, 2005

Most of us are vaguely aware that when we are arrested and taken into custody we must be advised of certain constitutional rights, including the right to counsel. This is based upon the Fifth and Sixth Amendments to the United States Constitution; the Supreme Court has specifically applied this 5th Amendment right to misdemeanor traffic offenses in Berkemer v. McCarty.

In a DUI case, the citizen is arrested, handcuffed and thrown into the cruiser to be taken to the police station where he will be asked to submit to breath or blood testing. Some states view this as a "critical stage" where the individual should have the right to call an attorney for advice well before he decides which test to take, if any. Consider a February 16, 2005, news story from Montana:

HELENA — Police and prosecutors railed against a bill Wednesday that would allow someone arrested for drunken driving to call an attorney before taking a blood-alcohol test, calling it another loophole for offenders that would hinder investigations.

Opponents called the measure by Rep. Rick Maedje, R-Fortine, vague and inappropriate given the Legislature's work to toughen drunken driving laws this session…. Maedje said his bill wasn't so much about drunken driving, but an attempt at protecting constitutional rights."Constitutional protection is not a loophole," he told the House Judiciary Committee. "Miranda (rights) should start immediately after someone is asked to incriminate themselves."

The bill would allow those arrested for DUI to contact an attorney "as soon as possible under the circumstances" and prohibits law enforcement from seizing their driver's license until that time. Their license could be taken if they refuse to take the test after that time, or if they don't contact an attorney. No one spoke in support of the bill….

A bill to recognize our right to speak with an attorney. And no one spoke in support of it.

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