201911.040

Why you should always ask to speak to your lawyer during a DUI investigation.

No one wants to be stopped by a police officer. If you’ve been drinking, you definitely don’t want to see those flashing lights in your rear view mirror. A DUI investigation can be frightening and overwhelming. Most people have no clue what to do. Fortunately, the answer is pretty simple: invoke your right to speak to an attorney!

Both the Sixth Amendment to the United States Constitution and Article 2, § 24, of the Arizona Constitution guarantee a person the right to assistance of counsel. Additionally, Arizona Rule of Criminal Procedure 6.1(a) provides that the right to be represented by an attorney includes the right to consult with an attorney, in private, “as soon as feasible after a person is taken into custody.” In Kunzler v. Miller, the Arizona Supreme Court emphasized that a person “always has a right to consult an attorney in a DUI case as long as this request does not interfere with an ongoing investigation.

Moreover, police “must assist in the vindication of a DUI suspect’s right to an attorney. In State v. Penney, the defendant was arrested for aggravated DUI and asked for an attorney after being read the implied consent form. He was placed in a room with a phone and phone book “so he could call anyone if he would like to get some advice” while the officer attempted to get a search warrant for a chemical test. The attorney pages in the phone book had been torn out, so the defendant could not contact an attorney. When he told the officer about the missing pages, the officer responded, “That’s not my F-ing problem.” The Court of Appeals found a violation of Penney’s right to an attorney and confirmed that “[w]hen a DUI suspect invokes his right to counsel, police must provide the suspect with reasonable means of contacting a lawyer.” 

The Nava Law Firm has handled multiple cases where law enforcement did not honor the right to speak with an attorney. In these instances, the cases were dismissed, because dismissal of a case with prejudice is the appropriate remedy when police conduct interferes with both the right to counsel and the ability to obtain exculpatory evidence. An experienced DUI attorney can arrange independent tests to challenge the validity of the State’s test. By not allowing a person the ability to speak with an attorney, it impossible to foresee what advice would have been given. Because the ability to prepare a defense is affected, the only appropriate remedy is dismissal.

In cases where the ability to obtain exculpatory evidence is not affected, the appropriate remedy is suppression of the evidence. So, if your right to counsel is violated, at the very least the results of your breath or blood test will be thrown out. Often times, this results in a dismissal as well, since the prosecution has no evidence of drinking and driving.

Because a violation of your right to an attorney may lead to a dismissal of the charges against you, it is imperative that you ask to speak to an attorney immediately upon being contacted by a police officer. Request and attorney early and often. The Nava Law Firm is available 24/7 to speak with you and advice you during your investigation. With years of experience in DUI cases, The Nava Law Firm can review your case and see if there is a violation of your right to an attorney. As always, we offer free consultations.

So, now you know!