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DUI and the Right to Retain Counsel



Do motorists pulled over when suspected of driving under the influence of alcohol have the right to speak with counsel before deciding whether to submit to alcohol testing? We have all seen enough crime dramas on TV to have heard the Miranda rights being read: You have the right to remain silent; you have the right to counsel. Do these apply if you are stopped for DUI?

The answer as usual depends on your state. The U.S. Supreme Court has held that there is no right under the U.S. Constitution to talk with a lawyer before deciding whether to submit to testing. Although the police cannot interrogate you against your will without an attorney present, they are allowed to obtain "physical evidence" such as breath or blood alcohol tests.

But that does not answer the question in some states. Minnesota, for example, provides that its citizens have the right under the state constitution to consult with a lawyer before making the decision to voluntarily submit to testing. The lawyer must be contacted promptly (you cannot wait for four hours and sober up in the meantime), and telephone contact is sufficient. Oregon also allows motorists a "reasonable" opportunity to speak to an attorney before making the decision.

How you ask for a DUI lawyer

How you ask for an attorney is important. If you refuse testing and then demand a lawyer, you may not get one. The purpose in allowing counsel is to help you make the decision on testing. If you have already decided you will not agree to testing, some courts will hold that you do not need an attorney. So you should be careful to say, "I'd like to speak with an attorney before I agree to any tests." In states like Oregon, Minnesota, and Arizona, you should be allowed to speak with an attorney, at least over the phone, before any testing continues.

In any state, if the police refuse to allow you to speak with counsel, what should you do? At that point, refusing to take the test is generally not a good idea. If the police are right, you can automatically lose your license, along with other penalties, and in some states be forced to take the test anyway. If you are in a state that requires police to let you speak with an attorney, your attorney will be able to use this violation of your rights in the defense of your case.

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