The Third Division of the Court of Appeals, in this unpublished opinion, shows questionable English interpretation when ruling against Mr. Berger’s argument that he asked for counsel at the time he refused the breath test. I’m glad they weren’t my English teachers in school.
Typically, DUI suspects are arrested and taken to the police precinct where they are presented with a confusing set of legal notices – called Implied Consent Warnings. Many arrestees ask for an attorney due to the confusing nature of the warnings. After speaking with the on-call public defender they make no further statements and do provide a breath sample. The proper legal advice in most cases is to provide a breath sample. Most officers know this and so are happy to provide arrestees ten minutes or so on the phone with the public defender.
Mr. Berger said, “I’m not doing anything and I want a lawyer.” The officer considered it a “refusal” and the prosecutor admitted this evidence to show his conciousness of guilt. Mr. Berger’s challenge that he was denied his right to counsel was rejected by the appellate court. Division III reasoned that he first refused and then invoked his right to counsel even though they were in the same sentence!
My advice to people has always been to say “no thank you, may I have an attorney.” While this may please Miss Manners, its bad legal advise. Apparently you are not supposed to be polite and answer the officers question before you say the magic word “attorney.” If one answers the officers question before affirming the right to counsel, proper etiquette, then seeking counsel is not useful and contrary to the statutory scheme of Washington’s DUI laws, which are designed to steer people into providing breath samples. The officer will take the refusal and not give you counsel as the process is over and the suspect will be booked or released. (Although, in some circumstances a warrant may be issued to force a blood test.)
There were several other non-DUI related yet interesting issues ruled on in this case that make it worthy reading. Cross examination of Officer O’Leary regarding false police reports was ruled not relevant to the officers veracity. And his previous employment as a Washington State Trooper where he was investigated for sex with a minor was also not relevant.
Rule of Berger - Say “attorney.” Don’t answer the officers questions first. Refusal before attorney is a refusal.
State v. Arthur J. Berger, Court of Appeals of Washington, Division III, UNPUBLISHED, No. 28240-6-III, March 24, 2011.