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Right to speak to an attorney during FST?

Gilbert, AZ |

I was given FSTs on a traffic stop for over an hour, same tests 5 or 6 times. On about the 3rd round, I realized he was going to keep doing them till I screwed something up. I told him I wanted to call my attorney and needed my cell phone (it was in the car). He told me I have to give a blood sample and can call afterwards from the station. I wasn't allowed to call ANYONE until after they jammed me with needles and I was officially released. When do I have a right to speak to an attorney? When he put me in the car to go to the police station, he read me my rights, which includes speaking with attorney, but how can I do that with no phone in cuffs?
Do I have grounds for a motion because I was denied council? Thanks

Attorney Answers 6

  1. Generally, you have the right to speak to an attorney after the booking process. The USSC has said that you have the right to an attorney at every critical stage, and the booking process is procedural and not critical, so anything after that seems to be the trigger. The most recent case law from the USSC say that even silence can now be used against you prior to being read your rights. Miranda rights are slowly being erroded into nothing.
    The FST are not admissable in court, at least at the time of this post. The blood test is however. Hire the best criminal defense attorney you and/or your family can afford in AZ and try to beat this charge.

    Attorney Stacy E. Pepper is licensed in all State and Federal Courts in Mississippi. He is a founding Partner in the law firm of Pepper & Odom, P.C. Nothing posted here constitutes any attorney client relationship and is meant for educational purposes only. Office hours are 8:00 a.m till 5:00 p.m. Monday through Friday. Phone: 601-914-9219 Facsimile: 888-456-2160

  2. Your right to counsel and your right to not to incriminate yourself are guaranteed in the Constitution. However, these rights have generally not been applied to the FSTs. These tests have been declared not testimonial, and therefore are outside of the limitations of Miranda. Many attorneys consider that to be a legal fiction, but that's the law. Contact an attorney immediately to review your facts and any defenses you may have.

    Responding to questions on AVVO does not establish an attorney-client relationship between the questioner and any attorney associated with Garrett Law Group, PLC. Responses should be considered and used for informational purposes only. Every case is unique in its facts, and all legal matters should be discussed with a licensed attorney prior to making any decisions or taking any actions.

  3. As long as your request to speak with an attorney does not affect the officer's investigation when your request is made, the law requires that before you submit to a blood, breath or urine test, you be given a right to speak with an attorney. Officers may have violated your rights to gather evidence on your behalf depending on when you were finally released. Also, you may have an issue of coerced testing/unlawful detention under the circumstances as you have described. You need to speak with an attorney immediately.

  4. Speak with a lawyer in your area. There might be a number of legal issues in your case.

  5. Based on the unique circumstances of a DUI investigation, you do have the right to request an Attorney when an officer is in the midst of their DUI investigation as long as providing you counsel wouldn't unreasonably delay the investigation.(The police do not determine "unreasonable delay," the Court does) If the officer has violated your right to counsel and you requested counsel prior to the blood draw, then that could be grounds for suppressing the blood evidence obtained. You should speak with an Attorney to discuss your case in more detail and determine whether or not to seek suppression.

    Answers on Avvo are general in nature and do not constitute legal advice; specific answers require knowledge of all the facts. You should consult with an attorney to review all the facts specific to your case in order to receive advice upon which you can reasonably rely.

  6. You should contact an attorney in your area that focuses on DUI defense. It sounds like you have several issues that may impact your case.

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