A San Antonio police officer pulls over a car he suspects is driven by a driver guilty of a DUI. The officer comes up to the window and asks the driver “sir, how much have you had to drink tonight?”. The driver says right back to the officer “officer, I want to ask a lawyer how to ask for a lawyer”.
If you are stopped for a DUI in Texas and you ask to talk to a lawyer, what exactly does the police officer have to do? Can he keep questioning you? Can he make you do the tests? Can he take your blood? Or does he have to stop and let you talk to a lawyer? Or does he even have to let you go completely? The answer to all these questions is… “it depends”. And after a recent ruling from the Bexar County Superior Court, I can confidently say “it depends even more”.
The longstanding rule was that if a DUI suspect asks to speak to a lawyer, then so long as the request does not interfere with the investigation, the police must give the driver a reasonable opportunity to talk to a lawyer. Reasonable opportunity usually means a phone book, a cell phone, and about 20 minutes to call around. One would think that would also include privacy, ie, the right to talk to the lawyer without police listening in. One would wrong, however, because you only get to talk to a lawyer in private if you specifically ask for it.
Be that as it may, the main reason one should have the right to talk to a lawyer is that the lawyer will advise the driver about the importance of gathering independent mitigating evidence. Most important of course is getting independent blood draw to fight the government’s blood alcohol evidence. And considering the fact blood, alcohol results change by the minute, the sooner that independent test is done the better. In other words, the right to counsel is not just some meaningless technicality or constitutional hoop police must jump through. It is about giving a citizen a fair shake at gathering evidence to prove he is innocent. And isn’t it natural to believe a person should be allowed to gather evidence in his own defense?
Considering the longstanding rule and the basic fairness of the idea, common sense would tell us that if you ask for a lawyer, you will get the chance to talk to one, right? Not so fast. In a troubling decision overturning a San Antonio City judge’s dismissal of a DUI, a Superior Court Judge ruled it all depends on how a person asks for a lawyer.
First, the judge ruled that when a DUI suspect said she would not do any field sobriety tests without first speaking to an attorney, she did not unambiguously request to speak to a lawyer (“the record shows Defendant did not ask to speak to an attorney”). How he reached that conclusion I have no idea. Second, because the police officers had not yet mentioned a chemical test, (the driver requested a lawyer soon after the stop at the scene) that meant the driver did not have the automatic right to talk to a lawyer before the officer’s request for a urine sample. It seems it is the driver’s fault she asked for a lawyer too soon and did not read the police officer’s mind.
The San Antonio judge who originally heard the case rightly dismissed it for a violation of the right to counsel. The San Antonio City Attorney then appealed that dismissal saying the driver did not ask for a lawyer specifically about the urine test, and thus, she did not have the right to talk a lawyer about it.
Oddly, in his ruling overturning the dismissal, mentioned the fact the defendant did not testify at the evidentiary hearing:
In this case, the Defendant had the opportunity to testify and inform the trial court exactly what she meant by her statement but did not testify. Certainly, the Defendant was not required to testify, but her not testifying does not give the trial court the right to speculate what the Defendant might have meant.
Why Judge McClellan would make this point is unfathomable. The fact the defendant did not testify should play no part whatsoever in any judicial opinion. And even though the judge makes the perfunctory statement “the defendant was not required to testify”, that certainly does not dampen my concerns about why the judge brought it up in the first place.
The fact is the government has the burden, under the Texas Rules of Criminal Procedure, to prove the admissibility of all evidence. Any ambiguity, therefore, should be presumed against the government, regardless of whether the defendant testified, and not against the defendant. And the fact the defendant did not testify did not affect the San Antonio judge’s decision who dismissed the case, to begin with. So why then should the judge mention that point at all?
The bottom line is the judge’s ruling has given police the incentive to game the system. It gives police a blank check to play dumb and emasculate one of our most significant protections: the right to gather independent evidence and prove we are not guilty. It is a horrible precedent.
As things stand after this ruling, in Bexar County at least, one needs to know enough criminal procedure to know you don’t know enough criminal procedure so you better invoke your right to counsel in the specific technical terms worthy of a Harvard professor. But only a lawyer eminently up to date on the latest case law will know how to properly invoke the right to counsel, despite the fact the very point of the right to counsel- the raison d’etre- is to guide citizens through the legal minefield. One will need a lawyer’s advice to know how to ask for a lawyer. And thus a person who can actually invoke the magic words to invoke the right to counsel probably wouldn’t need one, while those uneducated in the arena- the vast majority of citizens- are left unprotected.
It would have made as much sense to rule one does not properly invoke the right to counsel unless one says the magic words “abracadabra” three times before asking for a lawyer. In fact, that would have been better as that would have at least created a clear rule of what one needs to say.
So what now? If you are stopped by the police for a DUI investigation, how do you invoke your right to counsel? Maybe write a letter invoking your right to counsel and attach the US Constitution, Texas Constitution, and every single Texas court decision on the right to counsel as appendices, then sign it, notarize it, and keep it in your glove box to hand to police once you are stopped and read it word for word to the officers? And be sure to keep a spare copy of the letter in your bank vault. And maybe one in Ft. Knox as well?