DUI
and the Disappearing Right to Counsel
Information
courtesy of Lawrence Taylor - DUIblog
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
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