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State v. Velez1/3/2003
rantors of that information and that in certain situations lack of such disclosure would not be grounds for a finding that the detainee was deprived of a statutory right to counsel. An important change in the governing statute limits the precedential value of these two cases to the case before us today. In 1997, the Legislature amended 23 V.S.A. § 1201 to criminalize refusal to submit to a breath test in some situations. [FN1] The criminalization of refusal has made the job of public defenders called for DUI consultations even more challenging. Due to enhanced penalties for subsequent convictions, certain DUI offenders face higher penalties for conviction for DUI than they do for criminal refusal. But to counsel a client to refuse the test would, in some cases, be suggesting that the client commit a crime. An ethics opinion by the Committee on Professional Responsibility of the Vermont Bar Association suggests that counsel in such situations may not advise the client to refuse to take the test, but can inform the client only of the legal consequences of taking or refusing the test. VBA Comm. on Prof'l Responsibility, Advisory Ethics Opinion 97-6 (1997). Apparently acting on the basis of this ethics opinion and related *29 concerns about the criminalization of refusal, in instructions effective August 1, 1997 the defender general instructed on-call attorneys that they should terminate DUI calls without speaking with suspects when the processing officer refuses to provide a motor vehicle record check.
FN1. The criminal refusal statute, 1997, No. 56, § 1, became
effective on August 1, 1997, and did not apply to Fredette, the events of which occurred on February 8, 1996, 167 Vt. at 586, 705 A.2d at 549, or to Ironside, the events of which took place on May 5, 1996. 167 Vt. at 628, 711 A.2d at 663.
13. As we acknowledge, there is a heightened ethical dimension to the question now facing public defenders of how to counsel DUI detainees. We do not condone, however, the decision by the defender general to promulgate a policy that requires public defenders to refuse to accept calls from detainees when police officers refuse to divulge the result of a motor vehicle record check. Providing legal advice **717 of a general nature does not have to depend upon information about a defendant's particular situation. The thirty-minute limit on the time allowed for consultation with an attorney indicates that the consultation will be fairly limited in scope, providing the detainee with general information about relevant law rather than a coherent legal strategy. At this level of generality, a public defender can provide legal information without counseling the commission of a crime, as long as she does say that if the defendant belongs to one of the categories of individuals to whom the criminal refusal statute applies, refusal would be criminal. The right to consultation is the right for detainees to obtain accurate information about their legal options. For a detainee in what is undoubtedly a confusing situation, the right to consult an attorney is the right to obtain advice from someone who, unlike the processing officer, is in a position to provide unbiased professional counsel. It is not the right to unassailable legal advice. See State v. Clark, 164 Vt. 626, 628, 671 A.2d 1276, 1278 (1995) (mem.) (State not guarantor of attorney's advice; claim of ineffective assistance of counsel inapplicable in context of license suspension proceeding).
14. The interest of the State in keeping drunk drivers off the roads is not served by the current situation in which a conflict between two government agencies, the office of the public defender and the police, is resulting in the suppression of evidence that could help to resolve these cri
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