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Dave Kennett
Dave Kennett, Lawyer
Category: Criminal Law
Satisfied Customers: 27689
Experience:  25 years experience practicing attorney
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Does the right to counsel imply the right to CHOICE of counsel

Customer Question

Does the right to counsel imply the right to CHOICE of counsel when a person is arrested? For example: A person is arrested on suspicion of DWI; at the station, the officer requested that the accused submit to a breath test. The accused requested to speak to his attorney and informed the officer of the attorney's phone number. The officer stated that the phone will not dial long distance, that there is no cell reception in the building, so the accused may not be allowed to use his own cell phone, and the officer offered a phone book to find an attorney. If I understand NY law, a person has an absolute right to confer with counsel before submitting to a breath test, but it seems unclear, as to whether choice of counsel is implied.
Submitted: 6 years ago.
Category: Criminal Law
Expert:  lwpat replied 6 years ago.
The person has the right to refuse to take the test and to speak with an attorney before answering any questions or agreeing to take the test. The right is one of refusal. they cannot force you to take the test or answer questions.
Customer: replied 6 years ago.
I understand that one may refuse the test in any case and I've also verified a right to counsel in general. I'm asking if implicit in that right is a right to CHOICE of counsel, ie not just any attorney in the phone book, but the specific attorney the accused wishes to speak with, so long, as that attorney is available within a reasonable period of time. The question, which was expressed in explicit detail in the original post is with regards XXXXX XXXXX OF "CHOICE". Did you even read it?
Expert:  Dave Kennett replied 6 years ago.

You have the right to hire any attorney you please if that is what you are asking. If the court is going to appoint counsel then you would not have a choice. I cannot tell from your question exactly what the circumstances were that you would have to ask the question since you would obviously have the right to hire whomever you please.


Dave Kennett

Customer: replied 6 years ago.
Does anyone actually read the entire question? A person accused of DWI clearly has a right to obtain legal advice before agreeing to take a breath test. If the accused is in hand cuffs, where the only way to a phone is through a request to the arresting officer, is the officer obligated to allow the accused to call his own attorney or may he disallow a long distance call and instead offer a phone book to look up a local attorney? Never mind the later steps toward prosecution; this is just a procedural question. Can an officer deny a request from an alleged DWI offender to call his or her own attorney before submitting to a breath test and if denied his or her CHOICE of counsel, is the accused justified in refusing to take the test?
Expert:  Dave Kennett replied 6 years ago.

The state laws regarding submitting to a BAC or other test are written under the theory of implied consent. If the test is not taken within a certain amount of time it is deemed to have been refused whether the defendant contacts his or her attorney or any other attorney. Under your theory it could take a day or two to contact a particular attorney making the test useless. Therefore everyone could avoid taking a test by simply not being able to contact his or her attorney. Since the vast majority of DUI arrests occur after normal business hours everyone could avoid the test and not be charged with a refusal.


When you sign up for a drivers license you are giving the state your consent to be tested if stopped and there is probable cause for a DUI arrest. You always have the right to refuse the test pursuant to the Fifth Amendment right against self incrimination but you can also be charged with the refusal pursuant to the implied consent laws. This has nothing to do with the right to counsel since the implied consent laws are not related to the right to remain silent etc.


So the officer cannot deny the request to contact the attorney of your choice but he can cite you for a test refusal if the test is not taken within a specific time period, usually 2 hours. I believe you have an issue if the officer denied the phone call since offering a phone book is not sufficient. I agree with you that the officer was wrong but whether a court will throw out the test refusal is anyone's guess. That would then be an issue for an appeal.


Had the officer permitted the phone call and you were unable to reach your attorney then I do not believe you would have a case but to deny you the right to make the call would appear to be a valid issue. I did read the entire question and I never saw any mention of being in handcuffs.



Dave Kennett, Lawyer
Category: Criminal Law
Satisfied Customers: 27689
Experience: 25 years experience practicing attorney
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