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March 20, 2014

New York Court Of Appeals Considers Analyzes Whether Breath Tests Can Be Suppressed When The Arrestee Is Denied The Right To Counsel

By Michael H. Joseph

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Our Westchester DWI Attorneys keep up to date on the developments in the criminal law. The New York Court of Appeals is considering whether breath test results can be suppressed in a fatal DWI accident where an attorney contacts the police and the police pursue the all too common tactic of running interference to keep the suspect from speaking to their lawyer.

In this particular case, the suspect consented to take the breath test, but then her attorney called the police station and told the police that his client would not take the test. The police basically left the criminal defense attorney on hold, while they continued to question and test the suspect. The prosecutors tried to argue that the police didn’t violate the Sixth Amendment right to counsel because it hadn’t attached yet, since the suspect in the DWI hadn’t spoken to her DWI defense lawyer, however, the Court of Appeals Judges were not impressed with this argument since they clearly retorted that the only reasons that the right to counsel didn’t attach was that the police took affirmative steps to prevent it from attaching.

The trial court found a violation of the right to counsel and suppressed the test results. The Second Department Appellate Department of the New York Supreme Court upheld the suppression and ruled that the police are obligated to exercise reasonable efforts to inform a motorist that their attorney has stepped forward provided that such notification will not substantially interfere with the timely administration of the test.

While the Court of Appeals hasn’t ruled yet, the Judges did seem skeptical of the arguments by the prosecution that they had the right to disregard the attorney’s call and instructions because of either the defendants’ prior consent or the mandatory consent law. The mandatory consent law in New York basically states that every driver consents to take a chemical test when they operate a vehicle and there are penalties such as a mandatory license revocation to refusing to take a test. But it is a basic principle of law that a State license law cannot trump a constitutional amendment.

The prosecutors also asserted that there is time pressure to get this test done and they cannot interrupt the test to let a suspect speak with their criminal defense lawyer. The police cited the two hour rule, which means that the chemical test must be administered within two hours of the arrest. But this is a flimsy argument because there is a 20 minute observation period anyway where they cannot do the test. The reason for the 20 minute rule is to make sure that the suspect doesn’t burp or belch because that brings up gas from the stomach and alcohol fumes which can affect the validity of the test, which is supposed to test the lung alcohol. If additional alcohol is introduced, it can invalidate the test because the test is based on a ratio.

 
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