Many clients have asked me in the past if they were entitled to seek legal counsel when making the decision whether or not to take a breath or blood test - it would make sense that someone should have the proper legal advice when making such a big decision, but the law doesn't necessarily agree with that common sense.
In the context of a criminal prosecution, Michigan courts have long held that the defendant has no right to counsel before or during a police-administered chemical test inasmuch as the testing procedure is not considered a critical stage in the criminal proceedings.
The Holmberg case did recognize that the “more commendable” police practice would be to allow an individual a phone call to counsel before administering the chemical test.
Significantly, in the civil context of the implied consent law, the court of appeals has ruled that, when the police arbitrarily deny an individual an opportunity to telephone his or her counsel before taking a breath test, the individual’s resulting refusal to take a Breathalyzer test was reasonable and the individual’s license should therefore not be suspended under the implied consent law.
Ultimately, the issue is whether the driver’s refusal was reasonable based on the totality of circumstances existing at the time of the refusal. The argument to be made is that the client's refusal to submit to a chemical test was reasonable where the client was confused about the chemical test rights and the refusal was prompted by a coercive and arbitrary police policy or decision not to allow a telephone call to counsel to alleviate the confusion.
Do I have the right to a lawyer during a DUI arrest? Can I call my attorney if arrested for drunk driving?
In Michigan, the courts afford virtually no right to counsel during the investigative and evidence-gathering stages of a criminal proceeding. These moments would take place on the side of the road, and back at the police station when giving a chemical test sample. As a general rule, the Sixth Amendment right to counsel attaches only when the accused has been formally charged at arraignment or indictment.
A notable exception arises in the case of custodial interrogations where the accused is afforded a right to counsel to protect his or her Fifth Amendment privilege against self-incrimination. After the commencement of formal charges, the right to counsel is afforded at “critical” stages of the criminal proceedings. This means in the rare circumstance where the police stick you in an interrogation room as part of your DUI arrest, you'd have the right to an attorney.
In general, the right to counsel in a Michigan DUI case is very limited. No right to counsel exists during pre-arrest roadside questioning of a suspected drunk driver. Similarly, there is no right to counsel during a routine booking procedure, even if it is recorded on video, or during physical sobriety tests following the booking. More significantly, under Michigan state law, an arrested drunk driver has no right to counsel during a breath test examination.
Michigan courts do recognize, however, that for implied consent purposes an accused drunk driver should on request be allowed a reasonable opportunity to at least telephone an attorney before deciding whether to submit to a breath test. If the police deny this opportunity, and the defendant therefore refuses to submit to a breath test, his or her refusal will generally be viewed as reasonable and thus should not trigger a driver’s license suspension under the implied consent law.
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