Consultation doesn't create right to counsel

Listen to this article

Hon. Richard S. Brown

A police officer’s courtesy in permitting a drunken driving suspect to talk to an attorney who was present at the arrest does not implicitly suggest that the suspect has a right to counsel, the Wisconsin Court of Appeals held on Jan. 29. Therefore, the officer’s action does not justify the suspect’s subsequent refusal to submit to a breath test.

On Jan. 20, 2002, Illinois attorney Richard L. Verkler was stopped for speeding, while accompanied by two passengers — his wife and his law partner.

During the stop, the officer noted that Verkler smelled of intoxicants, had bloodshot eyes, and slurred his speech.

The officer requested that Verkler perform field sobriety tests but Verkler declined, citing a medical condition. The officer then requested that Verkler submit to a preliminary breath test, which Verkler refused. Verkler was then arrested for OWI, and was placed in the back seat of the squad car.

Verkler requested that he be able to consult with his law partner and the officer permitted them to do so privately in the back of the squad car.

Eventually, however, the officer ended the meeting, saying he had to take Verkler to the police station. Verkler’s wife and his law partner followed the squad to the police department.

At the police station, Verkler asked if his law partner was going to join them and the officer replied that “she can’t.” Verkler told the officer that he wanted to consult with her, but was told, “[w]ell, she can’t come in here.”

While in the intoxilizer room, Verkler again asked to speak to his law partner, but his request was denied. The officer pointed to a newspaper clipping that hung on the wall, stating that a person is not entitled to the advice of counsel about the decision whether to take a breath test.

Verkler then was read the Informing the Accused form and he again refused to submit to a breath test. After a refusal hearing before Fond du Lac County Circuit Court Judge Steven W. Weinke, Verkler’s license was revoked, with Judge Weinke concluding, “The officer did not have to allow the defendant’s law partner to converse with him about the situation. It was a courtesy extended to the defendant and not a right as a matter of law.”

Verkler appealed, but the court of appeals affirmed in a decision by Judge Richard S. Brown.

State v. Reitter

At issue in the case was the effect of the Wisconsin Supreme Court decision in State v. Reitter, 227 Wis.2d 213, 595 N.W.2d 646 (1999). The court there held that officers are under no affirmative duty to advise suspects that the right to counsel does not apply to the implied consent law.

However, the court also suggested that, as a matter of due process, if an officer either explicitly assures or implicitly suggests that the right to counsel does apply, the officer may not mark down a refusal if the suspect acts on that suggestion and refuses.

The decision in Reitter stemmed from the U.S. Supreme Court’s holding in Raley v. Ohio, 360 U.S. 423 (1959). Discussing Raley, the Reitter court noted as follows:

“In Raley, the State of Ohio had assured the defendants that they
could invoke the privilege against self-incrimination when they testified before the Ohio Un-American Activities Commission. State officials, however, neglected to inform the defendants about an Ohio immunity statute that expressly deprived them of that privilege. After the defendants relied on the assurances about the privilege at the hearing and refused to answer questions, Ohio prosecuted them for criminal contempt. In pursuing the convictions, the state relied upon the immunity statute, suggesting the defendants were presumed to know about the statute. The Supreme Court held that due process rights had been violated because the express assurances were ‘actively misleading,’ causing the defendants to believe they had a right where none existed.”

Reitter’s conviction was affirmed, however, because the court found that he was neither expressly nor implicitly encouraged to exercise the non-existent right to counsel.

Interpreting Reitter, the court in the case at bar concluded, “While not specifically adopting the Raley rationale as applied to refusal situations, the Supreme Court’s discussion of the issue convinces us that the court did adopt Raley in the implied consent context.”

Application

The court then concluded that, just as Reitter was unable to fit within the Raley exception, so was Verkler.

The court reasoned, “At no time out in the field did the officer expressly assure Verkler that he had a right to consult his law partner about whether he should take the upcoming breath test. … In fact, the undisputed testimony is that while the officer did allow a private chat to take place in the back of the squad car, he abruptly ended the chat moments later and announced that he was taking Verkler to the station. A reasonable person would come to the same conclusion that the trial court did. The officer allowed a short private conversation to take place between Verkler and his law partner as a matter of courtesy and exercised control by ending it at his command. The officer’s action in ending the conversation is at odds with Verkler’s view that the officer was honoring an attorney-client relationship.”

Furthermore, the officer refused persistent attempts by Verkler to talk to his law partner at the station and in the intoxilizer room. The court concluded “A reasonable person in Verkler’s position would think, based on the officer’s action at the station, that what happened at the scene was an anomaly, something that started and ended at the scene.

The court further noted the newspaper clipping on the wall stating that there was no right to consult with an attorney about whether to take the test.

Goss v. Illinois

The court then considered an Illinois case, Goss v. Illinois, 303 Ill.App.3d 915, 650 N.E.2d 1078 (Ill.App.5 Dist. 1999), in which the Illinois Court of Appeals reversed a license suspension based on the officer’s permitting a drunk driving suspect to call an attorney, on similar facts.

Goss was arrested for drunken driving with his attorney/girlfriend in the car. The officer transported Goss to the station, and his attorney followed.

At the station, the officer read Goss the implied consent form, stating the consequences of an OWI, and the penalties for refusing to take a breathalyzer.

After denying repeated requests by Goss to call his attorney, the officer ultimately relented and let them talk by phone. After one minute, the officer interrupted the conversation to inform Goss that his minute was up.

Goss then refused to take the breathalyzer without further advice from his attorney, whereupon his driving license was suspended.

	Links Wisconsin Court of Appeals Related Article Case Analysis

The Illinois Court of Appeals reversed, concluding, “Once a person is accorded rights not required by law, the revocation of those rights will vitiate the effect of any purported refusal to submit to a breathalyzer test.”

“Real Time”

The court rejected Verkler’s argument that his situation is analogous to that in Goss, repeatedly emphasizing the difference in time-frame of the respective consultations.

The court reasoned, “In our view, the facts in Goss are not only inapposite to the facts in the case at bar, but Goss actually supports our position. Goss was at the police station and the form had just been read to him. The big question, whether he would submit to the test, was being asked of Goss in real time. At this point in time, Goss asked to speak with an attorney, a request that was allowed. The clear import of Goss is that if the officer expressly assures a right to consult about whether to take a breath test, then the officer must honor that allowance. Here, however, Verkler was never told that he had a right to consult about whether to submit or refuse to submit to a breath test. The consultation which did occur was out in the field, far away from the real-time request to take the breath test. The real-time occurrences that Verkler had with the officer about whether he could have counsel during the intoxilizer process were met with refusals by the officer to allow attorney-client consultation. Goss is not helpful to Verkler (emphases added).”

Accordingly, the court affirmed the revocation of Verkler’s driver’s license.

Click here for Case Analysis.

David Ziemer can be reached by email.