Is There A Right To Counsel Before Taking A Breath Test In Ohio?

Imagine you have been arrested for a D.U.I. (O.V.I. in Ohio), and the officer is requesting that you submit to a blood, breath or urine test. You don’t know what you should do, so you ask to speak with an attorney before you make a decision. But the officer doesn’t let you. Is this a violation of your right to counsel? If so, what is the remedy? A recent decision by an Ohio Court of Appeals presents an interesting twist on these issues.

Generally, we have the right to counsel at “critical stages” of criminal cases (see, e.g., United States v. Wade). In Wade, the Court defined a critical stage as “any stage in the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” Courts have interpreted the phrase “critical stage” to include police interrogations and post-accusation lineups. Courts in Ohio have held, however, that there is no Constitutional right to counsel before taking a breath test (see, McNulty v. Curry).

Although there is no Constitutional right to counsel before taking a breath test, Ohio does have a statute (legislative law) that addresses this issue. That statute says an arrested person must be permitted to communicate with an attorney and has a right to be visited immediately by an attorney for a private consultation (R.C. 2935.20). Violating this statute is punishable by a fine and a jail sentence.

This issue was the subject of a recent appeal in State v. Voorhis. In that case, the defendant was arrested for O.V.I. and asked to speak with a lawyer before deciding whether to take the breath test. The arresting officer did not permit Voorhis to speak with a lawyer. At the defendant’s trial, defense counsel wanted to explain to the jury that the officer violated the law, but the trial court prohibited this information. On appeal, the Court of Appeals upheld the decision of the trial court. The Court of Appeals did not give much reasoning for its decision, other than the trial court had discretion to deal with the issue and did not abuse that discretion.

On television, we always hear officers tell suspects, “you have the right to an attorney….” In the real world, there are limitations on the right to counsel. As long as courts do not see taking the breath test as a “critical stage”, the right to counsel has little meaning in this context.