Right to Counsel Before Submitting to A Chemical Test

Published On: August 11th, 2020

In every Driving While Intoxicated matter, it is important that your lawyer examine and potentially question each action, from the initial basis for the police pulling over the vehicle and the breathalyzer test or tests, to the blood alcohol content ("BAC") and more. One of the issues that often arises is when you, as an accused, have a right to counsel before submitting to a chemical test and what type of test falls under this umbrella.

Recently, in the Bronx Criminal Court case of People v. FB, the court evaluated this subject. Any stopped vehicle is a "seizure", which has constitutional implications under the Fourth Amendment, even if it's just a quick stop for a broken taillight or speeding, etc. In order for a traffic stop to be justified, the police officer must have probable cause to believe that a traffic infraction transpired, reasonable cause to believe that the driver has committed, is committing or is about to commit a crime, or some other valid public safety concern.

When the evidence and testimony indicated that a police officer pulls a car over, the court handling the case must then look at law enforcement's basis for arresting the defendant, which requires probable cause to believe that a crime has been committed. In relevant part for the issue presented here, the defendant in People v. FB, submitted to and Alco-Sensor portable breath test which resulted in a BAC reading of. 15, well over the legal limit of .08. The defendant was also given a more formal admissible breath test at the precinct.

The defendant's attorney challenged whether the accused had invoked his right to counsel before submitting to a chemical test or breath test to measure his BAC. The defendant both clearly and unequivocally referenced and asked for an attorney multiple times before submitting to the breath test in the field. The court pointed out that a portable breath test in the field is not a "chemical test" since that phrase is used specifically to describe a test on an instrument other than a portable breath test device such as an Alco-Sensor, breathalyzer, Datamaster or Intoxilyzer. The portable breath test or Alco-Sensor is considered merely a preliminary breath test and often utilized at the scene of the alleged crime.

There is no meaningful right to counsel before being given or refusing to take the portable breath test or Alco-Sensor after being pulled over in the State of New York, however, the request for counsel becomes critical prior to submission to the tests, other than the portable test.