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HICE v. STATE5/2/1984
t until his attorney arrived was a right we feel he plainly had. He had been arrested and charged with a crime and he was made aware that he had the right to the presence of an attorney. His assertion of this right should not be used against him at this time, and there is no evidence that the passage of 30-40 minutes would have affected the test results. The appellant alleged that the officer
making the arrest treated the appellant abusively in that he used harsh language with the appellant, and physically abused the appellant while leading him into the police station. The officer's alleged refusal to administer the test, and the charge of refusal to submit to the test, regardless of the fact that the appellant was later acquitted of this charge, is evidence which the jury should have been allowed to consider as bearing on the officer's credibility.
As to the second point, counsel for the appellant should have been allowed to go into the facts related to the breathalyzer on cross-examination as it would tend to impeach the officer's direct testimony that the appellant was obviously intoxicated at the time of his arrest.
We therefore reverse and remand for a new trial consistent with this opinion.
Reversed and remanded.
CRACRAFT and CORBIN, JJ., agree.
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