Do You Have the Right to an Attorney After a DUI Arrest?

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The short answer is that after the arrest, you have a right to a lawyer, but before the arrest you do not. So, if a Columbus police officer stops you to investigate whether you are driving drunk (DUI or OVI), you do not have a right to counsel. Your right to counsel only attaches after the police arrest you, and even then, only for critical stages of the prosecution.

Despite this, if you’re pulled over in Columbus for drunk driving (DUI or OVI) or for any other charge, you should always ask to speak with a lawyer and refuse to make any statements or consent to any tests, including field sobriety test, without first talking to an attorney.

Refusing an alcohol test until you after you talk to an attorney is usually the right decision even though there are often non-criminal penalties (Administrative License Suspension) for refusing it. Once you agree to an alcohol test, and the test is given, it can be an uphill fight to have the test results thrown out.

Getting to the answer to the question originally posed, both the U.S. Supreme Court and the Ohio Supreme Court have said that the Sixth Amendment right to counsel does not apply when an accused is asked to take an alcohol test. Why not? The rationale behind this surprising answer is that the Courts do not consider giving a blood, breath or urine sample a “critical stage” of the prosecution, even though the test result can be the strongest evidence against an accused.

Has the Ohio Legislature tried to correct this absurdity through legislation? Sort of. Ohio Revised Code section 2935.20 provides a statutory right to counsel after an arrest, even an arrest for a DUI. If an officer fails to follow the law, he can be fined and even jailed up to 30 days. In my experience this never happens, even when there is a clear statutory violation. What the Legislature failed to do is provide an exclusion remedy for an officer’s violation of the statute.

If you are charged with drunk driving (DUI or OVI) in Columbus or central Ohio, please call and speak with one of our experienced DUI attorneys. Or schedule a free in-person consultation. One of our lawyers will gladly meet with you free of charge to discuss how to best defend the case.