Can I Talk With An Ohio OVI Attorney Before Field Sobriety Tests?

Suddenly, there are flashing lights in your rear-view mirror. ‘What did I do?’ The officer slowly approaches your window. “Good evening. I noticed you had some trouble staying in your lane back there. I need to see your license, registration, and proof of insurance.” The nervousness makes it nearly impossible to get that stupid license out of your wallet. Where is the registration? You finally give the officer the documents. “Just sit tight”, he says, “I’ll be ‘right back.”

After what seems like forever, he returns. “I smell the odor of alcohol. I’ll need you to get out to make sure you’re okay.” Your mind races. ‘Is that glass of wine I had with dinner going to be a problem?’ You find the door handle, open the door, and get out. “Just stand on the spot where I’m shining my flashlight.” “I’m going to give you a few field sobriety tests to see if you are under the influence.”

‘Time out. Can I talk with an attorney first?’
The short answer is ‘no’. Keep reading for the longer answer.
The Constitution says we have the right to counsel, and the United States Supreme Court says that right exists at “critical stages” of criminal cases. A critical stage was defined in United States v. Wade 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.

Field sobriety tests, however, are not considered “critical stages”. Courts in Ohio have repeatedly held that there is no Constitutional right to counsel before taking field sobriety tests: as early as 1999 in State v. Arnold and as recently as 2011 in State v. Davis. Courts have also held that there is no right to counsel when deciding whether to take a breath test, blood test, or urine test because that also is not a “critical stage”.

As you do not have the right to talk with a DUI lawyer before the field sobriety tests, your ‘time out’ isn’t going to help much. Is that glass of wine going to be a problem now? A future post will discuss whether you have to take field sobriety tests, whether you should, and what happens if you don’t.

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