Today I appeared in King County District
Court to address an issue in a client's case wherein the client was denied the
right to speak to an attorney. The gist of the case involved a DUI
wherein my client was arrested and after being read his constitutional rights
and presented with a waiver of those rights he invoked his right to speak with
an attorney. The problem is, he was never afforded the right to speak to
an attorney prior to the administration of the breath test. In our case
today the court held the proper remedy was suppression of the evidence, i.e.,
inadmissibility of the breath test results.
Each
denial of counsel case can have different scenarios ranging from outright
denial to counsel to a reasonable effort made by law enforcement to put someone
in touch with counsel to a lack of reasonable effort to get in touch with
counsel. In our case, the trooper did make a reasonable effort to put my
client into touch with counsel, but her efforts were in vain as both public
defender agencies failed to respond to her inquiries. These calls to the
public defender’s office (attorney's on-call) went unanswered and put the
trooper in a predicament not normally found. That is, she then had to
wait 45 minutes until making up her mind to present the client with the
opportunity to blow or decline. Ultimately the court held the court also
had a responsibility to make counsel available as the public defender agencies
were contracted through the court and had an obligation to respond. Since
no one did, the proper remedy, due to no fault of the trooper or my client was
suppression of the "tainted" evidence, the breath test.
In other
scenarios, for example, when a trooper fails to provide the defendant with
requested counsel the court's have discretion to dismiss a case. See,
State v. Myhre, State v. Pierce, City of Spokane v. Kruger and CrRLJ 3.1
All of these address the right to counsel. Now, other times a
defendant may be the cause of the "denial of right to counsel" by
actions, such as being obstinate and not picking up the phone, fighting with
officers, etc. and very likely those cases will have no action taken by the
court (via dismissal or suppression).
All that
being said, it is always best to ask to speak to an attorney and not to waive
your right to remain silent. On a side note, when presented with a document
titled "constitutional rights" be aware the Washington State Patrol
has authored this form and has purposefully made the "waiver" portion
of the form ambiguous, so much that the word "waiver" is intentionally
left out, even though officers testify all the time "when I presented him
with waiver portion, he agreed" etc. This is because they want you
to inadvertently waive your right and the courts have held the language
utilized in the form is sufficient for a proper waiver. Here is the
form's "waiver":
I understand my constitutional rights. I have decided not to
exercise these rights at this time. Any statements made by me are made freely,
voluntarily, and without threats or promises of any kind.
See how
the word "waiver" is conspicuously absent, that is intentional!
The best
advice is to just always say as soon as you are arrested, I would like to speak
with my attorney!
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About the author:
Nathan Webb, is a seasoned Seattle DUI Lawyer. His practice of 10 years emphasizes DUI defense. He has been repeatedly recognized as one of Seattle's Best Attorneys! He was recognized as a Top Seattle DUI Attorneys by Seattle Met Magazine, Repeatedly named a Super Lawyer Rising Star in the area of DUI Defense by Washington Law and Politics Magazine, and is Rated Superb for DUI Defense (perfect 10.0 out of 10.0) by Avvo.com.
