Right to Counsel before DUI Breath Test

Arizona Court of Appeals considers reasonableness in accommodating suspect’s request for counsel before breathalyzer test.

If you are arrested for a DUI, you have a right to request an attorney’s assistance right away.  But how much time are you given to find an attorney before you are given a Breathalyzer?

In a recent Arizona Court of Appeals case, the defendant was convicted of aggravated DUI, for driving while impaired with a license that was suspended or revoked.

The Defendant appealed the convictions with several challenges.  The central argument was that the trial court had erred in denying his motion to suppress the results of a breathalyzer test due to being deprived of his right to counsel.

The defendant’s appeal also included a challenge that the trial court had erred in its instructions to the jury.

 Case Facts 

The case arose when a police officer stopped the defendant after seeing him utilize a private parking lot to avoid a traffic signal.

The officer noticed that the defendant appeared to be drunk and saw an open container of alcohol beneath his seat.

The defendant admitted he was drinking.

A field sobriety test was conducted, and the officer reported that the defendant exhibited impairment ques on the roadside test.

The officer read his Miranda warning, and arrested the suspect.

While in custody at that station, before the breath test, the suspect invoked his right to legal counsel.

His breathalyzer tests showed he had a Blood Alcohol Content (BAC) of .153 and .152.

At trial, a jury found him guilty of Aggravated DUI, and he was sentenced to presumptive, concurrent terms of 4.5 years in prison.

Denial of Right to Counsel Challenge     

On appeal, the defendant argued that the police officer deprived him of assistance from an attorney, by not allowing enough time for an attorney to return his call.  Therefore, his motion to suppress the breathalyzer results should have been granted. 

From the police stop the defendant to the point the DUI breath test was taken was central to the case:

5:00 a.m. – Police stopped suspect;

5:45 a.m. – Suspect arrested and taken into custody.

6: 31 a.m. – While at the station suspect requests to speak with an attorney, and police give him a phone book. The officer gave the suspect 10 minutes to reach an attorney.

 6:52 a.m.  The suspect called a law firm twice and left messages.  He waited for an attorney to call him back at the station.  Officer waits until 6:52 a.m. for an attorney to return his calls.

 6:56 a.m.  Officer proceeds and conducts the 1st breathalyzer test.

 7:02 a.m.  Officer conducts the 2nd breathalyzer test.                       

The officer testified that he conducted the two blood alcohol content tests before the defendant reached an attorney because under A.R.S. Section 28-1381(A)(2), there are only two hours before the statutory window to collect the BAC evidence before it expires.

The Court noted that when breath tests are conducted more than two hours after driving, the state would need to hire an expert to use “retroactive extrapolation”  to figure out the blood alcohol content.   (Retrograde extrapolation is a method where certain assumptions are made to calculate back to what the BAC would have been during the two-hour window.)

The court explained that in spite of this brief window, the defendant is entitled to get help from counsel when in custody before taking the breathalyzer. However, that right must yield when exercising would determine an ongoing investigation citing Arizona v. Kunzler, particularly in the case of a DUI.

The court noted that the defendant does not have the right to hinder or delay an investigation by demanding to speak with counsel.  Further, if the suspect cannot reach the attorney, the state may proceed with the investigative procedures.

There is no deprivation of the right to an attorney unless the police actively prevent the defendant from talking to an attorney of his choice. The court found that in this case, the defendant’s right to counsel was respected because the officer had delayed the tests as long as possible.

The Appeals court noted that courts have found deprivation of counsel either because police clearly prevented the suspect from speaking to one, or somehow obstructed their access to an attorney, citing multiple cases including State v. Juarez (1989); and McNutt v. Arizona (1982).

The court determined that the defendant’s right to counsel was honored. And that the officer reasonably waited as long as possible until the two-hour window had nearly expired waiting for an attorney to return the suspect’s calls.

Jury Instruction Challenges

The defendant also argued that the trial court erred in jury instructions.    

The defendant challenged the jury instructions given on the refusal to submit to a sobriety test, because there was no evidence to support he had refused.

The instruction given was that when a person drives a vehicle in Arizona, there is an implied consent for testing of bodily substances to determine alcohol or drug concentration. If someone fails to complete this test or won’t agree, it is considered a refusal.

The appellate court acknowledged since there was no evidence of refusal then there was no evidence to support the instruction.

The Court cited State v. Bolton 1995 noting that a party is entitled to an instruction on any theory that is reasonably supported by the evidence.

Further the court cited State v. Smith 1976, in holding that it is improper to give the jury an instruction which is not supported by evidence.

The Court noted that since the defendant consented to the breath tests, and there was no evidence to support a refusal then the the trial court erred in providing it to the jury.

Once it is determined if the trial court erred in jury instructions given, they must decide if that instruction was harmless.

If the State can prove beyond a reasonable doubt that an error didn’t affect the verdict, then the error is considered harmless, citing Arizona v. Nottingham.

The Court held that since the jury was not given any information about consequences for test refusal, and it was undisputed that the defendant did not refuse, a reasonable jury would have disregarded the instruction.

Further the court concluded that even if the instruction had been omitted, the jury would have reached the same verdict, based on the strength of the evidence.

The defendant also argued that the trial court erred in its instructions to the jury about the maintenance records requirement for the breath test machine.

The defendant contended that instruction created a presumption of evidence which burdened the defense to prove that the machine was not working properly.

The Appeals Court held that the jury was properly instructed to the fact that the defendant was not required to produce any evidence.

The Court added that even if an instruction is found to be an “evidentiary presumption”, it does not have an impact on whether or not the results of the breath test were accurate.  And it does not relieve the state of its burden to prove beyond a reasonable doubt that the breath tests results were in violation of Arizona’s Aggravated DUI laws.

The Appeals Court noted that the instruction did not require the jury to reach any conclusions.

Further, the Court concluded that the instruction did not shift the burden of proof to the defendant, which is held by the state citing Arizona v. Norton.

The Court also noted that the jury was not presented with any reason to believe the breath machine was not working properly.

The Appeals Court also concluded that the defendant failed to show that his case was harmed by the instruction.

The Appeals Court affirmed the conviction and the sentence.

Impact of Ruling on Arizona Drivers  

 The Appeals Court recognized the Defendant’s right to Legal Counsel during detention.

At the same time, however, the Court held that the defendant was not deprived of this right since the officer acted reasonably to accommodate the suspect’s rights.

In Arizona it is a violation of  A.R.S. § 28-1381 for a person to be found to driving impaired  to the slightest degree with an Alcohol BAC of .08 percent or greater within 2 hours of being in actual physical control of a vehicle.

The Appeals court held that a suspect cannot be permitted to jeopardize a DUI investigation, by demanding to speak with an attorney, when the officer reasonably honored the request, within that two hour window.

In sum, yes the suspect has the right to request an attorney prior to conducting a breath test while in custody.  But they do not have the right to demand to speak with with an attorney who cannot be reached, and continuing to wait, would jeopardize gathering the DUI test evidence.

Aggravated DUI Laws and Penalties Arizona

An Aggravated DUI is a Felony offense.  All felonies in Arizona call for prison terms.  

A Misdemeanor DUI is elevated to a felony when the impaired driving offense involves aggravated factors including:

  • 3rd or subsequent DUI within 7 years; (Class 4)
  • Driving on a revoked, suspended, or invalid license; (Class 4)
  • Driving with a passenger under the age of 15 in the vehicle; (Class 6)

A person can also be charged with Aggravated DUI and/or vehicular crimes if they caused a serious bodily injury or fatal accident while driving impaired due to alcohol or drugs.  The Classification will depend on the conviction, and circumstances.

Class 6 Felony DUI charges expose a person prison terms of 4 to 8 months.

Class 4 Felony DUI charges expose a person prison terms of 4 to 8 months.

Aggravated DUI convictions call for $4,000 in fines, fees, and assessments; driver’s license revocation for one year; use of Ignition Interlock Device for up to 2 years; possible forfeiture of vehicle; possible restitution or community service; alcohol or drug screening and treatment program; loss of right to bear arms and vote; and other penalties the court deems appropriate.

  Defending Charges for Aggravated DUI Phoenix-Metro and East Valley

Prepared to Defend”

James Novak, DUI & Criminal Defense Attorney, Law Office of James Novak, PLLC 

DUI charges are multifaceted in nature.  Therefore, a strong defense is required and all facets should be considered.

Your case should be evaluated to determine the best approach to defending the case and presenting it in a effort to obtain the best possible outcome in your case.

No matter how serious the charges may be, you have the right to be treated fairly, make sure your rights are

protected, provide evidence in your defense, and due process.

While there are a number of defenses that may apply, some of the most common defenses used to challenge DUI charges are Constitutional Rights violations, and evidentiary issues.

If police violated your rights in order to obtain evidence against you, the charges may be dismissed.

If evidence is challenged that is weak, inaccurate or inadmissible, it often leads to dismissal or acquittal of the charges.

It is important to select an attorney who understands the gravity of a DUI charge and knows multiple ways to fight it. If you are charged with a DUI, consult James E. Novak, a DUI defense attorney in Tempe, Arizona.

Mr. Novak is a former prosecutor and experienced trial lawyer, and is prepared to defend you and your rights.

If retained, he will provide you with a strong defense for your charges. We offer a free consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona. Call today at (480) 413-1499.

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