Article from: www.thenewspaper.com/news/45/4577.asp
11/26/2014Iowa: Cops May Not Snoop On DUI Consultations With Lawyers
Iowa Supreme Court rules that, if asked, Iowa cops must inform DUI suspects of their right to a private consultation with a lawyer.
A motorist suspected of driving under the influence of alcohol (DUI) has the right in Iowa to consult privately with an attorney to decide whether to take a breathalyzer test, the state Supreme Court ruled Friday. The unanimous decision threw out the evidence against David Joseph Hellstern because a police officer eavesdropped on Hellstern's phone call. Though Hellstern asked for privacy, the officer failed to disclose that private in-person attorney consultations are permitted under state law.
Ankeny Police Officer Brandon Dyer pulled Hellstern over on March 31, 2013, claiming Hellstern's vehicle weaved over the road's center line twice. Officer Dyer smelled alcohol on Hellstern's breath and noted that he was lethargic and somewhat confused. After Hellstern refused the field sobriety tests he was arrested and booked at the Polk County Jail. Officer Dyer read the "implied consent" advisory and asked Hellstern whether he wanted to make a phone call.
Although Hellstern is a lawyer, he specializes in family law, real estate and corporate law. He claims no expertise in DUI or criminal law. As it was 2:19am, none of the five attorneys he called answered. Finally, attorney Meegan Keller returned a message at 3am, and Officer Dyer stood close by while Hellstern consulted with her over the phone.
"Can I have a moment with my attorney?" Hellstern asked.
Officer Dyer refused, thinking the law did not require him to tell Hellstern that he could have a private conversation with the lawyer if she came to the jail in person. At 3:36am, Hellstern took the breath test under protest. He blew a 0.19, more than double the legal limit.
Polk County District Court Judge Joe E. Smith agreed with Officer Dyer that there was no right to be informed about the possibility of a private conversation with a lawyer. He fined Hellstern $1250 and sentenced him to three days in jail. Hellstern appealed on the grounds that he had a constitutional right to counsel and that Iowa law provides a clear right to privacy for anyone arrested.
"An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay," Iowa Code Section 804.20 states.
The high court reviewed case law stretching back to 1990 that held whenever an arrestee invokes a statutory right, even if imperfectly phrased, the police officer must explain what the arrestee is allowed to do.
"In this case, Hellstern unequivocally requested a private attorney-client conference before he submitted to the Breathalyzer test," Justice Thomas D. Waterman wrote for the court. "We hold that Hellstern adequately invoked his statutory right to a confidential consultation with his attorney under section 804.20 by requesting privacy during his phone call, triggering Officer Dyer's duty to inform him that the attorney must come to the jail for a confidential conference. Officer Dyer's failure to explain the scope of the right to a confidential consultation violated section 804.20. The remedy for such a violation of section 804.20 is suppression of the chemical test results."
Chief Justice Mark Cady and Justice Bruce B. Zager agreed with their colleagues but argued separately that the court must go further. The current system where some know their rights and others do not should be changed, they argued.
"No rule of law should work as a trap for any person or the government," the justices wrote in a concurring opinion. "To ensure a fair and neutral application of the statute into the future, our prior cases should be reversed and replaced with a simple rule that a peace officer must advise every arrested person of the statutory right to counsel."
A copy of the decision is available in a 120k PDF file at the source link below.
Source: Iowa v. Hellstern (Iowa Supreme Court, 11/21/2014)
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