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Privacy Not Permitted: Attorney Consultations and Refusing a Breathalyzer Test

Most people are at least somewhat familiar with their constitutionally protected right to an attorney. Law and Order, CSI, and other television programs often employ the common Miranda Rights language in their dialogue:

  • You have the right to remain silent.
  • Anything you say can and will be used against you in a court of law. 
  • You have the right to speak to an attorney, and to have an attorney present during questioning.
  • If you cannot afford an attorney, one will be provided for you.
  • What do those words really mean?

    hammerA recent case interpreting A Similar Missouri Law outlining the right to speak to an attorney after an individual was suspected of driving while intoxicated (DWI) revealed that this safeguard may not protect citizens to the extent previously thought.

    In March of 2018, the Western District Court of Appeals held in Roesing v. Director of Revenue that an individual has no right to a private consultation with an attorney to discuss the merits of a chemical test, more commonly known as a breathalyzer.

    Practical Application

    Jeremy Roesing was arrested and taken into custody on suspicion of DWI. After being read his informed consent rights, he refused to submit to a breathalyzer and requested to speak to an attorney. He was permitted to do so by phone, but was not permitted to consult with his attorney “privately.” The arresting officer stood within several feet of Jeremy during the conversation, and could hear Jeremy the entire time. After speaking to his attorney, Jeremy again refused to submit to a breathalyzer, and his driving privileges were later revoked for one year.

    Missouri Law states that any person who operates a vehicle upon the public highways in the state of Missouri shall be deemed to have given consent to a chemical test for the purpose of determining the alcohol or drug content of the person’s blood. In laymen’s terms, if you drive a car, truck, or another motor vehicle in the state of Missouri, the government has the right to make you submit to a breathalyzer.

    However, the law also states an individual has a period of twenty (20) minutes in which to attempt to contact an attorney after the officer requests a chemical test. After twenty (20) minutes have gone by, and if the person continues to refuse to submit to the breathalyzer, such refusal is grounds for the revocation of one’s license.

    Why this is important

    Mediator | Call & GentryThe Roesing decision makes it clear that although you are permitted to contact an attorney, you have no right to privately contact an attorney. Although one judge argued the defendant under such circumstances has no way of knowing if he or she is contacting an attorney for advice on their Statutory Rights related to a breathalyzer test, or their Constitutional Right to counsel (Miranda) for potential criminal charges, the majority disagreed.

    The Court held the two rights are not intertwined, and that that the plain language of the statute makes no reference to privacy, and only permits an individual a short time to attempt to contact an attorney.

    The decision will likely be appealed to the Supreme Court of Missouri, but for now, the Roesing decision is the law in the state of Missouri. While driving under the influence is never a good decision, and we at Call & Gentry Law Group sincerely hope you call a friend, hail a taxi, or download the Uber app, you deserve an exceptional legal defense team to make sure your rights are protected. We are here to help. If you feel the government has infringed upon your rights, give us a call and set up a consultation to discuss your options.

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