Public Outcry v. Individual Rights: Right to Counsel and the Drunk Driver's Dilemma

• NCJ Number: 109746
• Journal: Marquette Law Review Volume: 69 Issue: 2 Dated: (Winter 1986) Pages: 278-305
• Author(s): L A Mlsna
• Date Published: 1986
• Length: 28 pages
• Sale Source: National Institute of Justice/; NCJRS Photocopy Services
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This comment critiques the applicable case law on a driver's right to counsel prior to deciding whether to submit to a chemical sobriety test under drunk-driving implied consent statutes.

Abstract

Implied consent statutes provide that the accused may refuse a chemical sobriety test, but refusal may lead to the driver's license being revoked or suspended for a period of time. Under current case law, the courts are split as to whether the accused is entitled to make this decision with the advice of counsel. Some of the cases examined held the right to counsel when the accused was facing a criminal prosecution for drunk driving, and others held the right valid in license revocation proceedings before an administrative tribunal. Although constitutional grounds were a predominant reason for the holdings, some of the courts rejected the constitutional grounds and relied instead of State statutes or court rules. All cases have determined, however, that a person accused of drunk driving has a right to consult an attorney prior to deciding whether to submit to a chemical sobriety test. Having compared the opposing cases holding against a right to counsel, those favoring the right to counsel have more compelling logic and express the fairer rule. 164 footnotes.