A suspect charged with driving under the influence of alcohol cannot keep the results of a blood-alcohol test out of court because he did not have an opportunity to consult with an attorney before taking the test, a state appeals court in Brooklyn has ruled.
Whether to suppress evidence of a blood-alcohol test because the suspect was deprived of his right to counsel depends on whether the attorney “entered” the case before the test was given, the Appellate Division’s Second Department ruled on Jan. 11.
An attorney enters a criminal matter and triggers the right to counsel when either a suspect asks to speak with an attorney or the attorney or his or her professional associate notifies police that the suspect is represented by counsel, Judge Randall Eng noted on behalf of the four-judge panel.
“Because the record does not establish that counsel ‘entered’ the case before the test was given, the [trial court] erred in finding that the blood-alcohol test was given in violation of the defendant’s limited right… to consult with counsel,” he wrote. “Notification given to the police by a third party, such as a member of the defendant’s family, is not sufficient to establish counsel’s entry into the case.”
The appeal arose from a prosecution that began on August 26, 2013, when the defendant allegedly got into a fight with a friend at late-night party in North Massapequa. The friend drove away and the defendant got into a car and chased him, before allegedly ramming his car into the back of his friend’s car.
The police arrived, arrested the defendant and took him to the hospital. At 2:35 a.m. the suspect consented to a blood-alcohol test. Three minutes later, the police learned the name and telephone number of an attorney for the suspect, but the record did not establish how they obtained the information. (A police officer testified he did not remember how he learned it.)
At 2:49 a.m., police administered the test. At 3:30 a.m., the suspect was advised of his rights and made a statement to police that implicated him in several crimes arising from the incident.
At trial, the defendant asked the court to suppress both the result of the blood-alcohol test and his statement. The trial court sided with the defendant, holding that police violated his right to consult with an attorney about whether to take the test.
The Appellate Division, disagreed, noting that by law, any person who operates a motor vehicle in New York “shall be deemed to have given consent” to a test of his or her breath, blood or urine to determine the driver’s blood alcohol level. Drivers who refuse the test face automatic revocation of their license to drive and admissibility at trial of evidence that the driver refused to take the test, provided that the police have warned the driver in advance of the consequences of his or her refusal.
When deciding whether to refuse to take the test, a defendant may wish to consult with counsel, said the court, adding that by law police have no duty to warn a defendant of this limited right before asking the defendant to submit to the test.
Still, “when an attorney has actually entered the case, a defendant who had not asked to speak with an attorney must be made aware of the attorney’s entry into the case so that he or she may decide whether to consult with counsel before making a refusal decision,” Eng wrote.
Criminal defendants in New York have an indelible right to counsel, which the state’s highest court has held to mean that a defendant in custody in connection with a matter for which he is represented by counsel may not be questioned by police in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney.