If the Police Refuse to Accommodate Your Request to Call Your Attorney in a New York DWI Arrest Can the Results of a BAC Test be Thrown Out

Whenever a person learns that I am a New York criminal lawyer and New York DWI attorney, one of the first questions they ask is whether or not they should “blow” if they are ever stopped or arrested for the crime of drunk driving in New York. Drunk driving, a crime of the New York Vehicle and Traffic Law, is codified as VTL 1192 and in various subsections. When I respond to this question, the first answer I usually give (its more of a statement) is don’t drive drunk or impaired and you won’t ever need to know the answer to this question. Prosecutors and police take this crime very seriously and its not “OK” to put others at risk when you are behind the wheel. Taking off my “regular guy” cap and putting on my criminal defense attorney hat, the analysis changes. While I cannot answer whether you or anyone else should provide a breath sample for the portable breath test (PBT) or an intoxilyzer without having a specific set of facts, the better question is what, if anything, the must the police do upon your request to speak with or call your attorney prior to “blowing”? If the police fail to provide you an opportunity and you ultimately submit to a test, what if any recourse do you have?

In People v. Borst, 2013-1189 W CR, NYLJ 1202738144882, at *1 (App. Tm., 2nd, Decided September 11, 2015), the defendant was arrested for and charged with DWI, VTL 1192.2, VTL 1192.3 and other offenses. Before submitting to a BAC test and registering a .16 BAC (the legal limit is .08), the defendant asked the police officers who had him in custody whether he could call his counsel before deciding to comply with the breath test. Moreover, the defendant advised that there was contact information on his mobile phone in his car or he could call 411 to track down his DWI lawyer, but again the police denied the defendant’s request.

Ultimately, the trial court denied the defendant’s contention that the BAC reading should be suppressed because the police had failed to make reasonable and sufficient efforts to contact defendant’s requested counsel. In reviewing the trial court’s decision, the appellate court stated as follows (this is all very relevant and on point so it will be provided verbatim):

“It is well settled that a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has a limited right to consult with an attorney before deciding whether to consent to a chemical test, if he or she requests the assistance of counsel and no danger of delay in the administration of the test is posed (see People v. Washington, 23 NY3d 228 [2014]; People v. Shaw, 72 NY2d 1032 [1988]; People v. Gursey, 22 NY2d 224, 229 [1968]). However, the request must be specific and unequivocal in order to invoke this right (see People v. Hart, 191 AD2d 991 [1993]). Thus, “if a defendant arrested for driving while under the influence of alcohol asks to contact an attorney before responding to a request to take a chemical test, the police may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand” (Washington, 23 NY3d at 233 [internal quotation marks omitted]; see also People v. Smith, 18 NY3d 544, 549 [2012]; Gursey, 22 NY2d at 229). Moreover, the police officers’ efforts to contact defendant’s attorney must be reasonable and sufficient under the circumstances (see People v. DePonceau, 275 AD2d 994 [2000]; People v. Kearney, 261 AD2d 638 [1999]). A violation of defendant’s limited right to legal consultation generally requires suppression of the scientific evidence obtained (see Washington, 23 NY3d at 232; Smith, 18 NY3d at 550).”

“Moreover, since defendant was in police custody at the time that he requested to consult with counsel and he had not memorized the telephone numbers of either of the attorneys he sought to consult, he was reliant on the police to contact the counsel he had requested or to facilitate such contact (see People v. Palazzo, 20 Misc 3d 1107[A], 2008 NY Slip Op 51256[U] [Sup Ct, Bronx County 2008]; People v. Cole, 178 Misc 2d 166 [Brighton Just Ct 1998]). As a result, the police were required, but failed, to make reasonable and sufficient efforts to facilitate defendant in contacting counsel (see DePonceau, 275 AD2d 994; Kearney, 261 AD2d 638), which, under the circumstances presented, could have included either contacting the night operator at the garage where defendant’s car was taken to determine whether his cell phones were in his car, and, if so, to retrieve them, or allowing defendant to dial 411 or look in a telephone book for the telephone numbers (see e.g. People v. Gelaj, 21 Misc 3d 1120[A], 2008 NY Slip Op 52105[U] [Sup Ct, Bronx County 2008] [given the fact that the police had custody of the defendant’s car which contained the defendant’s cell phone which had the defendant’s lawyer’s telephone number and that the officer did nothing to facilitate the cell phone’s return to the defendant, the police actually denied the defendant access to his lawyer]; Palazzo, 20 Misc 3d 1107[A], 2008 NY Slip Op 51256[U]; Cole, 178 Misc 2d 166). Instead, the officers took no affirmative steps to try to help place defendant in contact with either of the requested attorneys. By failing to do so, the police, “without justification, prevent[ed] access between the criminal accused and his lawyer” (Gursey, 22 NY2d at 227; see Gelaj, 21 Misc 3d 1120[A], 2008 NY Slip Op 52105[U]).”

In sum, the analysis of whether or not the denial of your request to consult with your attorney prior to submitting to any test for intoxication will render the results inadmissible is fact specific. However, the law is in place to protect those who were wrongfully denied this “right”.

To learn more about New York DWI crimes, laws, offenses and defenses, review this blog and follow the links above and below.

The New York criminal defense attorneys and New York DWI lawyers at Saland Law PC represent clients accused of DWI, DUI and DWAI throughout the New York City region. The two founding attorneys previously served as Manhattan prosecutors and members of the DWI Unit.

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