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
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.
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.
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.
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.
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