Your Right to an Attorney in a DUI Case: Constitutional vs. Statutory
Many people assume the Sixth Amendment right to counsel applies the moment police pull them over or ask them to submit to a breath test. It does not.
The right to counsel attaches only after you have been arrested. Before your arrest, there is no right to have an attorney present during a traffic stop. More importantly, both the United States Supreme Court and the Ohio Supreme Court have ruled that the Sixth Amendment right to counsel does not apply when you are asked to take a blood, breath, or urine test. Courts do not consider submitting a chemical sample a “critical stage” of the prosecution — meaning police are not required to provide you with an attorney before requesting the test.
Ohio’s Statutory Right to Counsel — ORC §2935.20
Even though the Sixth Amendment doesn’t protect you at this stage, Ohio law does. Under ORC §2935.20, once you have been arrested, you have a statutory right to contact an attorney, and the officer must give you a reasonable opportunity to do so before proceeding.
If an officer violates ORC §2935.20, you might expect the test result to be suppressed — but that is not what the law provides. Ohio courts have held that there is no exclusion remedy for a §2935.20 violation. Even if your statutory right to counsel was violated, the test result can still be used against you.
This is why, in most cases, the right answer is to refuse the alcohol test until after you have spoken with an attorney — even knowing that refusal carries its own consequences under Ohio’s Administrative License Suspension law.
Most people have heard of Miranda rights. Miranda applies to a person in police custody and being questioned. Prior to any interrogation (not including routine questions such as name, date of birth, Social Security Number), the person must be advised that: they have the right to remain silent; anything they say can be used against them; they have the right to speak with an attorney prior to any questioning; they have the right to have an attorney present during any questioning; and, if they cannot afford to hire an attorney the right to have one appointed.
If you are arrested for DUI or OVI in Columbus and request an attorney, then further questioning must stop until you have spoken with a lawyer. If you are not allowed to contact a lawyer and the officer continues to interrogate you, then the statements should be suppressed or excluded from use at trial.
But what if you are not interrogated but rather merely asked to consent to a blood or breath test without the opportunity to speak with a lawyer?
In a previous post, I pointed out there is no constitutional right to a lawyer when being asked to take an alcohol test in Columbus, Ohio, or any other state. Rather, there is a statutory right under Ohio Revised Code Section 2935.20 to contact a lawyer after an arrest.
While violations of a person’s constitutional rights generally result in the suppression or exclusion of evidence, violation of statutory rights generally do not. Courts typically say that if the Legislature wanted evidence from a statutory violation suppressed, then they should have provided for that remedy in the law.
This means that if you are not allowed to speak with a lawyer but agree to take an alcohol test anyway, it can be used against you – if the test is otherwise admissible. However, every case is different and the facts of a particular case may give rise to an argument that a constitutional violation did, in fact, occur, requiring suppression of test results.
As pointed out in prior blogs, there are many ways to suppress an alcohol test. Just because you tested over the limit in Columbus does not mean you cannot win the case.
If you are facing a DUI or OVI charge, call one of our firms’ DUI defense attorneys in Columbus at 614-547-5757 to discuss the facts of your case.