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Denial of right to counsel = dismissal or suppression or neither?

Posted by Nathan Webb | Mar 07, 2014 | 0 Comments

Today I appeared in King County District Court to address an issue in a client's case wherein the client was denied the right to speak to an attorney.  The gist of the case involved a DUI wherein my client was arrested and after being read his constitutional rights and presented with a waiver of those rights he invoked his right to speak with an attorney.  The problem is, he was never afforded the right to speak to an attorney prior to the administration of the breath test.  In our case today the court held the proper remedy was suppression of the evidence, i.e., inadmissibility of the breath test results.

Each denial of counsel case can have different scenarios ranging from outright denial to counsel to a reasonable effort made by law enforcement to put someone in touch with counsel to a lack of reasonable effort to get in touch with counsel.  In our case, the trooper did make a reasonable effort to put my client into touch with counsel, but her efforts were in vain as both public defender agencies failed to respond to her inquiries.  These calls to the public defenders office (attorney's on-call) went unanswered and put the trooper in a predicament not normally found.  That is, she then had to wait 45 minutes until making up her mind to present the client with the opportunity to blow or decline.  Ultimately the court held the court also had a responsibility to make counsel available as the public defender agencies were contracted through the court and had an obligation to respond.  Since no one did, the proper remedy, due to no fault of the trooper or my client was suppression of the "tainted" evidence, the breath test.

In other scenarios, for example, when a trooper fails to provide the defendant with requested counsel the court's have discretion to dismiss a case.  See, City of Tacoma v. Myhre, State v. Pierce, City of Spokane v. Kruger and CrRLJ 3.1  All of these address the right to counsel.  Now, other times a defendant may be the cause of the "denial of right to counsel" by actions, such as being obstinate and not picking up the phone, fighting with officers, etc. and very likely those cases will have no action taken by the court (via dismissal or suppression).

All that being said, it is always best to ask to speak to an attorney and not to waive your right to remain silent. On a side note, when presented with a document titled "constitutional rights" be aware the Washington State Patrol has authored this form and has purposefully made the "waiver" portion of the form ambiguous, so much that the word "waiver" is intentionally left out, even though officers testify all the time "when I presented him with waiver portion, he agreed" etc.  This is because they want you to inadvertently waive your right and the courts have held the language utilized in the form is sufficient for a proper waiver.  Here is the form's "waiver":

I understand my constitutional rights. I have decided not to exercise these rights at this time. Any statements made by me are made freely, voluntarily, and without threats or promises of any kind.

See how the word "waiver" is conspicuously absent, that is intentional!

The best advice is to just always say as soon as you are arrested, I would like to speak with my attorney!

About the Author

Nathan Webb

Nathan "Nate" Webb has been repeatedly recognized by Washington Law and Politics Magazine as a Super Lawyer Rising Star, named one of Seattle's Top Attorneys by Seattle Met Magazine and is rated Superb (perfect 10 out of 10) by Avvo.com.

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