Does a Person Have a Right to Call a Lawyer on the Side of the Road?

Many clients are surprised to hear that the answer to this question is “no.” You do not have the right to an attorney until you have made a decision on implied consent. The Georgia Supreme Court has held there is no right to contact counsel before the decision to submit or not to submit to the State-administered test occurs. Rackoff v. State, 281 Ga. 306, 637 S.E.2d 706 (2006).  So, in effect your right to counsel only starts well after your DUI arrest in Georgia.

In Rackoff, the defendant was arrested on suspicion of DUI. Id. Before he took a breath test, he asked to speak to an attorney, and the officer denied his request. Id. The Defendant moved to exclude the breath test results because he was denied his right to counsel. Id. The trial court denied his motion, and the defendant appealed that decision. Id.

The Georgia Supreme Court affirmed Georgia's long-standing precedent the breath test administration is not a “critical stage” in a criminal prosecution that triggers the right to counsel. Id. The Court reasoned, “[a] breath test was not a ‘critical stage' because it did not signal the beginning of a formal adversary hearing and because a lawyer could add little to the warnings required from the officer administering the test by O.C.G.A. § 40-6-392(a)(4).” Id.

Rackoff is Wrongly Decided:

Of course, our Supreme Court is wrong, and its opinion in Rackoff clearly shows that the Court does not understand the nuts and bolts of how a DUI arrest is made or what goes on during one.  Of course, the decision to submit to a test is "critical."   Are they kidding?

Recently, the same Court held that the police can get a warrant to force a person to submit to a blood test.  So, even the implied consent card is meaningless right now.  You have the right to refuse testing, but then the police will force you to give a blood sample regardless.  Clearly, it would be helpful to have an attorney on the phone explaining all of this to a person being arrested for DUI.  It would certainly be fairer since the Georgia Implied Consent Warning does not mention that if you refuse you may be forced to provide a blood sample anyway and still suffer the consequences of the refusal as well as have a blood test used against you.

The Sixth Amendment right to counsel attaches once the criminal process has progressed to a “critical stage.” Michigan v. Jackson, 475 U. S. 625 (106 S. Ct. 1404, 89 LE2d 631) (1986); United States v. Gouveia, 467 U. S. 180, 187 (104 S. Ct. 2292, 81 LE2d 146) (1984). Georgia's constitutional right to counsel also only attaches when the proceeding constitutes a “critical stage.” Ballard v. Smith, 225 Ga. 416, 418 (169 SE2d 329) (1969). A “critical stage” is when rights may be lost, defenses waived, privileges claimed or waived, or the outcome of the case can be substantially affected. Fortson v. State, 272 Ga. 457, 458 (532 SE2d 102) (2000).

The “Harm” in Allowing Someone to Contact an Attorney During a DUI Arrest:

So, the Georgia Supreme Court was wrong when it decided Rackoff and continues to be wrong now that they allow things to happen outside of the implied consent warning (through forced blood draws).  The real reason courts do not want people to speak to attorneys is that the result would be less DUI convictions, and we certainly cannot allow that.  It is completely cynical to say that people are entitled to an attorney for just about every other crime but not when they have to decide whether to submit to a breath test or lose their license for 12-months for refusing.

DUI Lawyers call it the “DUI Exception to the Constitution,” when courts routinely ignore settled law to make sure DUI defendants are convicted.  It is the ugly politics of DUI and the pressure put on judges by political organizations and lobbying groups.

Know the Rights You Actually Have if Being Accused of DUI in Georgia:

While you do not have the right to call an attorney at the side of the road, you do have a right to remain silent. Anything you say, from the point the officer stops you, can be used as evidence against you in court. You should exercise your right to remain silent, even if the police officer does not inform you of this right.

You also do not have to submit to field sobriety testing and NEVER SHOULD.  The tests are designed by the government to make you look impaired.  Any other interpretation is nonsense.  You also should never answer an officer's questions such as where you have been or how much did you have to drink.  Again, these questions are designed to make the case that you were impaired and should be convicted of DUI.

Once you are placed in police custody, the officer must inform you of your Miranda rights. The Court considers you to be “in custody” when you do not feel free to leave. This is usually when you are taken into the station for questioning. When this happens, you should clearly and unambiguously request an attorney, and otherwise remain silent.

Once in custody, however, any unsolicited statements you make will be used against you.  So, if you mouth off on the way to the jail, anything you say can be used to show impairment.  Many times police officers leave their audio recording on the entire way to the jail.  Very often people arrested for DUI make incriminating statements or simply act and sound impaired.  The rule of thumb is to say nothing and only provide your license, and other identification.

As Soon as You Make Bond, Call Our Office:

If you have been arrested for DUI and you submitted to a breath-test, act now.  You only have 30 days to have your Georgia DUI Attorney file an appeal to save your driver's license. Atlanta DUI Attorney Richard Lawson is a former DUI Prosecutor with more than 25 years experience defending people accused of DUI throughout Metro Atlanta and North Georgia. He is Georgia's most reviewed lawyer on Avvo. Call 24 hours a day, 7 days a week.  We are here when you need us most.