 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Lee11/28/1995
dants must be told of their right to counsel and that a failure to do so results in violation of the Sixth Amendment and the Arizona Constitution.
We agree that defendants must be advised of their right to counsel prior to custodial interrogation. See Miranda, 384 U.S. at 444-45. We also agree that after arrest, defendants must be taken before a magistrate "without unnecessary delay" for an initial appearance, at which time they will be informed of their right to counsel. See Ariz. R. Crim. P. 4. Further, we agree that if there is no interruption of a continuing investigation, defendants may exercise their right to counsel prior to taking a chemical breath test. Juarez, 161 Ariz. at 81, 775 P.2d at 1145 ("informing the driver that he may not call his attorney before taking the test" violates the driver's right to counsel under the Sixth Amendment). Lastly, we agree that a defendant's request to speak with an attorney must generally be granted. See id. at 79, 775 P.2d at 1143.
Here, absent a request for counsel, absent the administration of a chemical breath test, and absent police interrogation, defendant seeks to suppress evidence of the results of the field sobriety tests and her refusal to take the intoxilyzer based solely on the fact she was not advised of her right to counsel. We decline to impose an affirmative duty on the State, under these circumstances, to advise defendants of their right to counsel.
Defendant cites Kunzler v. Miller, 154 Ariz. 568, 744 P.2d 669 (1987), Hiveley v. Superior Ct., 154 Ariz. 572, 744 P.2d 673 (1987), Juarez, 161 Ariz. 76, 775 P.2d 1140, and Saenz v. Rodriguez, 163 Ariz. 386, 788 P.2d 119 (App. 1989), in support of the trial court's suppression order. Each of those cases is premised upon the denial of the defendant's request for an attorney or confusion as to the right to have counsel present. In this case, defendant neither requested an attorney nor was misled as to the right to consult with an attorney. Further, none of the cited cases establishes an affirmative duty on the State to inform defendants of their right to counsel.
Conclusion
For the foregoing reasons, the trial court's order suppressing defendant's testimonial post-arrest statements is affirmed. However, the trial court's order suppressing the test results and directing that the State not comment upon defendant's refusal to take the intoxilyzer test is vacated. This matter is remanded for proceedings consistent with this opinion.
WILLIAM F. GARBARINO, Judge
CONCURRING:
NOEL FIDEL, Presiding Judge
SHELDON H. WEISBERG, Judge
Page 1 2 3 4 Arizona DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|