June 2011 Archives

Whenever someone is arrested, as a general rule, that person should speak with an attorney. When you are placed under arrest your 6th Amendment right to a lawyer is triggered and someone who is detained by police should exercise it. I want to address how important this rule is when someone is arrested for drinking and driving. When the police confront someone who is drinking and driving they are required to perform several different tests, including field sobriety tests and a breathalyser or B.A.C. (Blood Alcohol Content) test, which are in themselves invasive and trigger certain constitutional rights. Interestingly, if you ask to speak to a lawyer before you decide whether or not to take a breathalyzer and your request is denied, it is not your 6th Amendment right to counsel that is violated. Instead, if the officer does not give you the opportunity to consult with your attorney, your 14th Amendment right to due process is violated. The reason due process is violated results from the affect that a refusal or the result of a breathalyzer will have on your ability to drive. Because the ability to drive affects an individual's employment, livelihood, etc., people confronted with the decision to take a breathalyzer must be given the opportunity to consult with an attorney if requested. Further, if the police officer denies a request to speak with a lawyer or improperly advises and, as a result, there is a refusal, there is a presumption that the result of the breath test would be in the accused favor.