You Have The Right To A Lawyer - You Just Do Not Have The Right To A Meaningful Discussion!Jonathan Rands
The first step in rule interpretation is to read it for its plain meaning. If its susceptible to more than one meaning then the Court will look to what they think it means. That is a pretty obvious approach and it makes sense. As I read the rule it all seems pretty obvious. . .once in custody of police, or in other words once a person is arrested they are to be afforded the opportunity to speak with a lawyer if they want to.
The first step in rule interpretation is to read it for its plain meaning. If its susceptible to more than one meaning then the Court will look to what they think it means. That is a pretty obvious approach and it makes sense. As I read the rule it all seems pretty obvious. . .once in custody of police, or in other words once a person is arrested they are to be afforded the opportunity to speak with a lawyer if they want to. There are instances when a person "sort of" makes a request which is known as an equivocal request for counsel and if this happens everything should stop in order to clarify whether an attorney is wanted or being requested.
Also very clear is the language regarding telephone access or any other means necessary. That does not mean only the jail telephone, but it means ANY phone. In today’s day and age of electronic communication; often instant communication the arrested person should be allowed to use their own device to find and call an attorney. However, the rule has never indicated that the person SHALL be able to speak with an attorney of their choice, and thus if attorney of your choice not available then a on call public defender is most likely. Make no mistake-on call public defenders are well trained and qualified for these 2am calls. IN fact, it is preferable to speak with them and then get your attorney of choice involved. This is because the 2am attorney will likely become a witness that will be helpful they will be able to testify that your speech was NOT slurred as typically described by the police, nor was your train of thought "obviously affected by alcohol consumption" as the reports often do. The rules of professional conduct prohibit lawyers from being a witness in a client’s case. this is why not speaking to your attorney of choice is not always the best things to Your DUI Defense over all.
Given this background, consider this recent decision: The Supreme Court did some hair splitting in holding the following: "We hold that the rule-based right to counsel does not provide for a right to absolute privacy for conversations between attorney and client. The rule-based right to counsel in CrR 3.1 and CrRLJ 3.1, 1 by its own terms, provides only an opportunity to contact an attorney. Once contacted, privacy between the arrestee and attorney may be balanced against legitimate safety and practical concerns, and challenges alleging such violations are reviewed under the totality of the circumstances."
In this case the Court drew a line between privacy and circumstances. The right to access goes hand in hand with privacy, an attorney consult REQUIRES privacy in order to actually consult. The attorney-client relationship in terms of confidentiality is one of the most ancient and well respected privileges known to our culture. it is in the same discussion as confession, and doctor patient. If there is no privacy how is the privilege given any meaning? if you cannot have a frank and open discussion how can appropriate legal advice be given?
So the questions are whether there are any circumstances where the fear of property damage exits such that it trumps the right to access to counsel and privacy for that access? It is a meaningless right given the fact that property is more important to protect than citizen rights?
The facts of this case have driven the creation of this new rule regarding this rule based right. Because Mr. Federov was uncooperative, and the officer had fears of what he may do if left alone the Supreme Court requires a "balancing" between the right and now "other factors." The problem created by this decision is that the next person who asks for privacy and does not get it, despite being cooperative and no threat to property will now have to distinguish their case from Mr. Federov's-rather than just show a violation of "privacy." This is often harder than it looks.
As a result the new standard of advice is to not exercise your right to speak with an attorney but DO exercise the right to silence. DO Exercise this right from the moment of arrest. This right will not be used against you; at least not yet. More importantly, once invoked DO NOT start a conversation with the officer. Answer only simple basic questions: Do You understand? Or will you provide a breath sample. Of course answering these two questions is on the heels of being advised of your Miranda rights and Implied Consent Warnings-so if you do not understand these say so, or say "I do not understand." If you plan on providing a breath sample do so with little to no conversation.
These last two things are of course intertwined with the right to an attorney because Your unique arrest, history, primary language spoken, and other things all affect the best legal course of action and the short answers given above and perhaps are best left to different blog.
Generically speaking its always best to refuse roadside sobriety tests, answer no questions and give a breath sample. However, the law on these subjects is changing quickly and this advice may change-but again, it is another example of needing "meaningful" access to an attorney.