I watched the Webcast of the oral argument in the Court of Appeals concerning the right to counsel before you agree to take or refuse a breath test. For almost the last 30 years it has been understood that if you request counsel, you can call a lawyer or be given a phone book to help find one. The caveat is that it could not interfere with having the test performed within two hours so the State could have the benefit of the statutory presumptions regarding the breath test results. This was thrown into question when the Court of Appeals in the Njafi case threw it out there, that although they were not deciding the issue, you might not be able to raise the denial of counsel in the Administrative Hearing, although you could in court. This means that if you want to call your lawyer and they don’t let you, the results of the test or the refusal are inadmissible in court, but the issue cannot be raised at the Administrative Hearing. Now the lawyer’s advice concerns both the Administrative side of the case (loss of license, interlock, suspension), and the Court side (the admission of the test results or the refusal). It is hard to intellectualize how you parse this. One size should fit all.
The practice was that it was incumbent upon the driver to ask to call. The police were and still are not required to ask if you want a lawyer or tell you that you can call one if you want. The Court went off on a tangent about having to appoint lawyers or having to advise drivers that they can call a lawyer. To his credit, he attorney arguing the driver’s side of the case tried to keep them from running astray. He explained that it is a simple matter of due process. If you want to talk to a lawyer about the unintelligible Advice of Rights form and determine what is in your best interest (for your job, for court, etc…), no one should impede that opportunity. If you cannot reach your lawyer or any lawyer, then you have to decide. This appears to be too much for the Court, and it sounded like they are going to rule 7-0 that you make the license decision on your own, and the State will have to suffer the in-court results from the denial of counsel. It just sounds and feels unfair. If after consulting with a lawyer, you decide not to take the test, the State gets to tell the judge or jury you refused and they can hold that against you. If the lawyer tells you to take the test, they get the results in evidence. The State wins either way in court. If you refuse, you get a longer suspension or the interlock, and the MVA “wins.” If you take the test and blow a .08-.14, then you “win” and get a restricted driver’s license (depending on priors). The public’s safety is not enhanced by a lawyer’s input into the breath test decision. Denying people the right to talk to a lawyer before making any important decision is just fundamentally unfair.