Police should have notified DUI-accused driver of call from her attorney

Brooklyn DWI Lawyer | DUI/DWI/Drunk Driving | DUI and License Suspension Attorney

A person charged with driving under the influence may face extremely serious charges, particularly if another person is hurt or even killed in an incident. However, even in such circumstances, the police and prosecution are required to observe the rules of evidence and respect the defendant's constitutional rights.

The recent case of People v. Washington from the New York Appellate Division demonstrates how a failure by the police to observe such requirements could lead to the suppression of evidence related to a chemical breath test.

A fatal collision and a breath test

In the middle of the night, the driver was involved in a fatal collision with a pedestrian in Nassau County, New York. When officers arrived, the driver's car had a damaged hood and windshield, and she was allegedly crying and talking on her cell phone. Not far from the car, there was an injured pedestrian, who later died from his injuries.

After conducting field sobriety tests, the driver was arrested and taken to police headquarters, where she was charged with manslaughter and driving under the influence. Meanwhile, the driver's family had immediately called an attorney to represent her.

At police headquarters, the police asked the driver to take a chemical breath test, and the driver allegedly signed a consent form at 3:30 a.m. The test was completed by 3:39 a.m. However, the attorney retained to represent the driver called the police station at 3:31 a.m. and informed the police that he represented the driver and that the driver was not consenting to any tests. The attorney was still on the line with the police at 3:39 a.m. The attorney was promised he would receive a return call, but he never received it.

The court later moved to suppress the results of the test, because the driver was denied access to her attorney. The prosecution appealed, arguing that the driver did not invoke her right to counsel prior to the chemical breath test.

Police failed to notify driver

The New York Supreme Court, Appellate Division, noted that, under New York law, every motorist gives consent to a chemical breath test, within certain time limits after an arrest, to determine if they are impaired. However, a person charged with DUI/DWI has a limited right to counsel-that is, the right to consult with an attorney before consenting to the test, if done in a timely manner. Here, the driver's counsel entered the case via telephone at 3:31 a.m. and thus the driver's right to counsel attached at that moment.

The court held that if a driver has consented to a breath test, and the police know that an attorney has appeared to represent the driver, the police must make reasonable efforts to tell the motorist, as long as telling the motorist does not substantially interfere with performing the test in a timely manner. There was no evidence that the police tried to inform the driver, and, thus, the results of the chemical test would be suppressed from evidence.

Building a strong case on your behalf

If you are accused of driving under the influence, and even if you have taken breath tests, the prosecution must still prove the charges against you beyond a reasonable doubt. With the potential seriousness of the charges, it is crucial that you are represented by an experienced criminal defense attorney who knows how to build a strong defense on your behalf.