The Right to Speak to an Attorney before the Breathalyzer

Breathalyzer test

The Right to Speak to an Attorney before the Breathalyzer

You have a limited right to call your attorney before you are administered a breathalyzer test in New York State.  But you must make it clear to the police officer that you want to speak with an attorney, know the attorneys phone number and speak with him or her.

Notably, a motorist does not have a constitutional right to refuse to consent to a chemical breath test. Moreover, the statutory right to refuse a test may be waived without an attorney’s assistance. Further, Vehicle and Traffic Law §1194 does not address whether a motorist has a right to consult with a lawyer prior to determining whether to consent to chemical testing. Nevertheless, if a motorist is arrested for driving while intoxicated, the Court of Appeals in People v. Gursey, 22 N.Y.2d 224 has recognized a limited right to counsel associated with the criminal proceeding.

Possessing a limited right to counsel means that where a defendant is arrested for driving while under the influence of alcohol and asks to contact an attorney before responding to a request to take a chemical test, the police may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand. If such a request is made, and it is feasible for the police to allow a defendant to attempt to reach counsel without unduly delaying administration of the chemical test, a defendant should be afforded such an opportunity. The request to speak with an attorney must be specific; generalized requests for an attorney are insufficient to invoke the limited or qualified right. Furthermore, the right to consult with an attorney is not absolute. If the lawyer is not physically present and cannot be reached promptly by telephone or otherwise, the defendant may be required to elect between taking the test and submitting to revocation of his license, without the aid of counsel. Where there has been a violation of the limited right to counsel recognized in Gursey, any resulting evidence may be suppressed at the subsequent criminal trial.

So try and call your attorney before taking the test!  Its always a good idea to get a second opinion, remember the police officer as nice as he seems is not on your side.

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