Miranda v. Arizona established that officers must advise a person who is arrested that they have a right to an attorney. And the 6th Amendment of the US Constitution establishes a person’s right to an attorney once criminal charges are brought against a person. But there is also a Washington state court rule, CrRLJ 3.1 and CrR 3.1, that also provide for a right to an attorney “at the earliest opportunity” after a person has been taken into custody.
In the DUI context, this right to an attorney is provided after the person is arrested and is taken to the police station for the BAC test. Typically, an officer will read the Implied Consent Warning to the person, and then ask them if they would like speak to an attorney prior to deciding whether to submit to the breath test (BAC test). If the person requests an attorney, the officer has a duty to make reasonable efforts to put the person in touch with an attorney, via telephone, regardless of what time of the day it is. Each jurisdiction has on call public defenders available to speak to individuals in this situation throughout the night. Most officers will call the attorney, hand the attorney to the person, and step out of the room to afford the person privacy.
In the recent Washington Supreme Court case, State v. Federov, the officer put Federov in touch with an attorney, but the officer did not leave the room and instead stood on the other side of the room, out of earshot, but still in the same room as Federov and the attorney. The attorney was concerned the officer could hear something incriminating so the attorney instructed Federov to answer with only yes or no to the questions. Federov challenged this lack of privacy and asked the court to suppress his BAC test and dismiss the case. The court disagreed and ruled that the “right to private consultation with counsel is to be weighed against legitimate safety and practical concerns.” The court stated under these facts, the officer had “afforded Fedorov sufficient privacy.”
Again, in most DUI arrests, the officers are kind enough to step out of the room and give the person complete privacy to speak to the attorney. I am not sure why the Supreme Court declined to establish a bright line rule making complete privacy a requirement, because it would not be difficult for law enforcement to comply with this rule. If safety is a concern, some officers handcuff the person and allow the person to speak to the attorney, in private, while still handcuffed. Ultimately, this decision allows the officer to stand in the room while the person is speaking to their attorney, so long as the officer is “out of earshot.” The real question is whether law enforcement will now use this decision to the peril of the person they are arresting for DUI.