NCJ Number
108063
Journal
North Dakota Law Review Volume: 59 Issue: 3 Dated: (1983) Pages: 479-493
Date Published
1983
Length
15 pages
Annotation
The article discusses whether defendants arrested for driving while intoxicated (DWI) have the right to obtain an independent sobriety test. The article also discusses whether defendants have the right to consult with their attorneys to arrange for the second test.
Abstract
McNutt v. Superior Court is an Arizona case in which the defendant was arrested for DWI. Police refused defendant's request to call his attorney. Defendant also requested an independent blood test after he was given a chemical test to determine sobriety. The police took no action on defendant's request for the independent test. The Arizona Supreme Court determined that by denying the defendant the chance to have his attorney arrange for an independent test, the State violated the defendant's right to consult with an attorney after arrest. The U.S. Supreme Court has not yet addressed the issue of when a sixth amendment right to counsel attaches in a DWI prosecution. Courts generally have found no sixth amendment or legal right to counsel at the time the accused must decide whether to comply with the request for a sobriety test. A small number of courts have recognized a constitutional right to counsel before submitting to a sobriety test. Other courts have recognized a limited State statutory right to counsel before submitting to a breathalyzer test. Other jurisdictions recognize a limited sixth amendment right to counsel immediately after the defendant has taken a sobriety test and is charged with an offense. A number of courts hold that the right to counsel does not apply because a driver's license revocation hearing is a civil and not a criminal matter. 134 footnotes.