I was stopped for speeding, and did a road side test, and breathalizer. I blew a .04, but didn't pass the road side test. The cop told me I could either do a breathalizer, or a bloodtest down at the station. I told him I would like to speak to a lawyer about my options, and which i should choose. He said that it wasn't apart of this process. After arresting me he found marijuana in my car that was in my purse when he grabbed my cell phone, keys, and wallet. Did i have a right to speak to a lawyer before answering the question to do the blood test?
Under Colorado law, you don't have the right to consult with an attorney before choosing the type of test. If the officer considered your answer or your conduct to be a refusal to take a test, that can have important consequences in both the DMV action and the criminal case. You should consult with an experienced DUI attorney who can review all of your documentation and advise you on your options.
Generally, most if not all states have what is called "implied consent" laws- basically, if you are driving on the roads, you are consenting to being stopped for things such as suspicion of DUI which include the administering of field sobriety tests, breathalyzers, blood tests.
That said, you have the absolute right to DECLINE these tests and ask for an attorney. You also have the right, at all times, to remain silent, but the cops do not have to inform you of this right until you are in custody (arrested generally). So to answer, yes, you DID have the right to speak to a lawyer before answering any questions and if you felt this was violated, and that the cop informed you otherwise, I would not pass go/collect $200 until I spoke to an attorney. Use AVVO's search tool to find one near you ASAP!
Mr. Bohren is absolutely correct. Unfortunately the way these implied consent warnings are worded, most citizens do not realize they have the right to refuse any tests or that everything you do is VOLUNTARY. While you do have the right to speak with an attorney regarding your test, it sounds like you were referring to your miranda rights. People hear the miranda rights on tv all the time and many times "lawyer up" or invoke their right to silence until they can speak to a lawyer. This is a widely misunderstood right, which has been exacerbated by tv. The only thing reading those rights does is that it changes what you are saying to the cop from "admissions" to "in custody statements". You need to hire a lawyer in your area asap to try and mitigate what damage was already done by any "admissions" you made prior to invoking your right to silence or right to refuse the test.
Wow. You have a very interesting situation here.
I am assuming that you "blew a .04" on the Preliminary Breath Test ("PBT"). This is a screening device used by the officer to help establish probable cause that you are under the influence.
In order to require you to submit to the roadside sobriety tests, the officer must have first had "probable cause" to suspect you were under the influence. Then, before the officer could require you to submit to any kind of test to determine your BAC, he or she would have to place you under arrest for Driving Under the Influence (or while Impaired by Alcohol).
Your "failure" of the roadsides, along with the result of the PBT, apparently gave the cop the "probable cause" he or she needed to demand you to submit to an analysis of your Blood Alcohol Concentration ("BAC").
At that point, you did NOT have the right to consult with an attorney before taking the test. Colorado Law declares that you had already consented to submit to such a test once a law enforcement officer had developed probable cause to believe you were driving under the influence (or while impaired by alcohol).
I hope that you see from my answer that everything in your case turns on whether or not the officer had sufficient probable cause to do what he or she did.
My advice: you need an experienced attorney to help you sort this out. Many attorneys, myself included, offer free initial consultations. I strongly urge you to take advantage of that and sit down with an attorney to discuss your options more fully.
Best of luck to you.
No, the cop was actually right, you do not have the right to ask an attorney whether you should take a blood test. When you got into the car to drive, you impliedly consented to having your breath or blood tested. You can refuse. Now you need to get an attorney and hope that things work out OK. Good Luck.
Under Colorado law, you do not have the right to consult with an attorney before being required to choose a blood test, breath test or to refuse testing because of suspicion of driving while impaired. Everything you did was voluntary and you did not have to take a test or perform roadside maneuvers, but you do not have a right to speak to an attorney before choosing.
You should consider hiring an attorney from CS - Tim Bussey, Robert Odle and Kent Gray are all good choices.
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