Right to an Attorney Following DUI Arrest
Following a lawful arrest for drunk driving in California, the law says that a suspect does not have the right to speak with an attorney before deciding whether to submit to a chemical test to determine the suspects breath or blood alcohol level. This is one example of the Courts removing constitutional protections in DUI cases.
The Courts have decided that when a person is "detained" for a DUI, he or she is not legally in "custody" and the normal Miranda protections, including the right to an attorney do not apply. Further, the Courts have stated that a person arrested for a DUI has already give "implied consent" to a test and that there is a public interest in requiring a test without undue delay as alcohol in a persons blood dissipates over time. Allowing access to an attorney would frustrate the intent of the DUI laws to obtain a blood or breath test near to the time of driving.
Some people arrested for a DUI want to insist on their perceived right to an attorney. We all watch TV and it is commonplace for people to believe that upon arrest they have a right to seek legal advice before saying anything to the police. The arresting officer is under an obligation to read to the suspect an admonition which explains to the unwilling suspect that they are under an obligation to submit to a test and that they do not have the right to speak to an attorney before a test is taken. Refusal to consent to a test leads to a mandatory one to three year license suspension from the DMV and a refusal may lead to greater penalties at Court.