Free Consultation (520) 903-1422


DUI And Your Right To An Attorney

Posted by James A. Charnesky | Oct 23, 2013 | 0 Comments

Recently, we had a case with a right to counsel issue.  Police pulled our client over for an alleged lane violation.  Our client, after producing his license, registration, and insurance, invoked his right to remain silent.  The officer nonetheless persisted in asking our client questions and sought to have him perform field sobriety tests.  Our client informed the police officer that he would not perform the tests without first speaking to an attorney and asked to speak to one.  The officer refused to permit him to speak to an attorney at that time, and told him that he had to decide immediately whether to perform the tests.  Our client refused to do the tests without first speaking to an attorney. The officer then arrested our client for DUI.  Later, after transporting him to the police station for a blood draw, the officer permitted our client to speak to an attorney.

This case presented a unique issue for the court in that the police in this case ultimately granted our client's request for an attorney, but delayed his access to an attorney until after he had been arrested for DUI.  Because he was denied access to his attorney at the time he first asked, our client was forced to make decisions regarding his participation in the investigation without the advice of his attorney.  This ultimately affected the amount and type of evidence which the police gathered.

Pleadings were filed with the court alleging the police violated our client's right to an attorney.  The State responded.  In the State's response, the right to speak to an attorney at some point during a DUI investigation was not disputed. Indeed, numerous cases, both in Arizona and other jurisdictions have affirmed this right. The question presented therefore, was not whether our client had a right to speak to an attorney, but when did the police have to give him access to an attorney?

The Right To Speak To An Attorney
In Arizona DUI Investigations

Arizona Rules of Criminal Procedure, as well as numerous appellate cases, affirm the right of a DUI suspect to speak to an attorney as soon as feasible after taken into custody. Rule 6.1(a) of the Arizona Rules of Criminal Procedure states:

A defendant shall be entitled to be represented by counsel in any criminal proceeding, except in those petty violations such as traffic violations where there is no prospect of imprisonment or confinement after a judgment of guilty. The right to be represented shall include the right to consult in private with an attorney, or the attorney's agent, as soon as feasible after a defendant is taken into custody, at reasonable times thereafter, and sufficiently in advance of a proceeding to allow adequate preparation thereof.

Arizona courts have also addressed this issue and have held that the codification of this right in the Arizona Rules of Criminal Procedure merely recognizes a fundamental constitutional right. Kunzler v. Pima County Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987).

The Right To Speak To An Attorney
Prior To Submitting To A Breath or Blood Test 

In the DUI context, the most common scenario where the right to counsel is at issue is after a suspect has been arrested and law enforcement has demanded that the suspect submit to a breath or blood test.  Under Arizona law, police officers must arrest a DUI suspect prior to invoking the Arizona Implied Consent law, which provides that a DUI suspect must either submit to a breath or blood test, or face a one year license suspension.  Typically, it is the combination of police informing a suspect that he or she is under arrest, along with the police requesting consent to perform a breath or blood test, that provokes a suspect into requesting to speak to an attorney.  Arizona law is clear that the officer must, at this point, yield to this request and permit the suspect a reasonable opportunity to contact his or her attorney.

That being said, the right to speak to an attorney, like most rights in this country is not absolute.  Courts have held that the right to counsel yields when the exercise of that right unduly hinders an ongoing investigation.  In the DUI context, police and prosecutors have traditionally argued that the evanescent nature of alcohol (diminishing alcohol concentration) in some circumstances justifies police denying a suspect a right to an attorney. Kunzler; See also Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986).

The Right To Speak To An Attorney
Prior To Submitting To Field Sobriety Testing

So the question here is whether a DUI suspect has a right to speak to an attorney prior to performing field sobriety tests and if so, does the possible diminishing concentration of alcohol create an "exigent circumstance" permitting police to suspend the right to later in the investigation?  A review of Arizona case law regarding this issue makes clear that a DUI suspect has the right to an attorney, at all times.  In Kunzler the court held

the right to counsel is a fundamental right and is an extension of the doctrine that defendants have the right to gather independent exculpatory evidence.



Arizona's Due Process Clause guarantees DUI suspects a fair chance to obtain independent evidence of sobriety essential to his or her defense at the only time it is available. The court held that because of this, a person is always entitled to the assistance of counsel, including the right to private consultation with an attorney, whether in custody or not.  Id.

This was reiterated by the Arizona Supreme Court in State v. Juarez, 161 Ariz. 76, 775 P.2d 1140 (1989)




Similarly, in State v. Rosengren, 199 Ariz. 112, 116-117, 14 P.3d 303, 307- 308 (Ariz.App. Div. 2, 2000) the court emphasized that a DUI suspect's ability to contact an attorney early in an investigation is critical to a DUI suspect's ability to gather evidence relevant to intoxication, and that such evidence may include not only chemical or other scientific evidence, such as a blood or breath test, but also other forms of potentially exculpatory evidence.
Given that a suspect always has a right to consult with an attorney, the critical analysis is whether the exercise of that right will hinder an ongoing investigation such that the right to an attorney must give way to the investigation by the police.  The Arizona courts have provided guidance on this point.  In Martinez v. Superior Court, 181 Ariz. 467, 468, 891 P.2d 934, 935 (Ariz. App. Div. 1,1994) the court held that once a suspect has asked to speak to an attorney the police cannot interfere with reasonable efforts to communicate with an attorney.  The Martinez decision is particularly instructive in that the defendant in the Martinez case, similar to the fact pattern being addressed here, asked to speak to an attorney prior to deciding whether to perform field sobriety tests. The key issue in the Martinez case was to what extent the police needed to go to when a suspect has invoked his or her right to speak to an attorney.  In Martinez, the police permitted access to an attorney's answering service, and not the attorney directly.  The police failed to provide the call back number for the cell phone they had provided the suspect so the attorney was forced to relate advice second hand through the service.  The court deemed this insufficient.
Despite all of this case law, some prosecutors still persist in arguing that the evanescent nature of alcohol mandates that the right to counsel give way.  Arizona courts have rejected the proposition that the evanescent nature of alcohol is a per se circumstance that would justify dispensing with the right to counsel.  The position the Arizona courts have taken is consistent with Missouri v. McNeely, a case recently decided by United States Supreme Court regarding the reach of the Fourth Amendment in DUI cases.  Specifically, the case addressed whether police, if they lack consent, need to get a warrant to search a suspect's body for evidence of alcohol intoxication.  On first glance, it seems it has little to do with a suspect's right to an attorney but a closer examination of the case shows otherwise.
While the McNeely case does not address the right to counsel, it does address whether the evanescent nature of alcohol justifies dispensing with a constitutional right.  In legal terms, this is called an "exigent circumstance."  In McNeely, the United States Supreme Court held that the evanescent nature of alcohol does not qualify as a circumstance which per se justifies dispensing with the Fourth Amendment warrant requirement. The McNeely court held that because police can quickly obtain a warrant by telephone, they must attempt to get a warrant.  In so holding, the Supreme Court held that the evanescent nature of alcohol was not a per se exigent circumstance that justifies the suspension of a constitutional right.
The implications of this case in regards to the right to counsel are clear.  If the evanescent nature of alcohol is not a per se exigent circumstance which dispenses with the warrant requirement, then neither can it be an exigent circumstance which per se dispenses with a defendant's right to counsel.  When a suspect invokes his right to counsel, the police must allow that person a reasonable opportunity to speak to an attorney.  Contrary to the arguments of some prosecutors, the evanescent nature of alcohol does not per se justify the suspension of a DUI suspect's right to speak to an attorney, regardless at what point in the investigation the suspect invokes this right.

About the Author

James A. Charnesky

James Charnesky is a Tucson DUI Defense Lawyer. His practice has always been committed to criminal defense. He has NEVER prosecuted, and has ALWAYS fought for the rights of the accused.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Focused On Your Case

We understand that a DUI charge is like a dark cloud looming above you. We work together to make sure that you not only get a great resolution to your case, but that you also know that you are well taken care of every step of the way.