Category: Right to Counsel

Demand an attorney – in New York, one has the indelible right to counsel once the demand is made. This has tremendous importance. The right to counsel, the invocation of that right in New York, can lead to the suppression of evidence. This can occur even in Driving While Intoxicated (DWI) cases. Here, this New York City Criminal Defendant demanded his attorney before providing a breath sample, a breath test, that was later suppressed because he asserted this right.

The Defendant here was charged with Reckless driving (Vehicle and Traffic Law §1212), operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law §1192 [3]); overtaking a Vehicle on the left (Vehicle and Traffic Law §1163-c) and an equipment violation. As the case often starts, the motorist is stopped and the officer approaches the car. “The defendant was the only person in the vehicle. The officer asked the defendant for his license and registration and through the open window smelled alcohol on the defendant’s breath. Additionally, that the defendant had bloodshot, blurry eyes and his speech was slurred….The defendant was given a portable breath test. The device used had not been calibrated in months. Nevertheless, the defendant registered over a 0.1 blood alcohol content (BAC).” The motorist was arrested and taken to the police station for test to determine his BAC.  At the station, the following colloquy ensued:

The entire exchange took place in about two minutes: the officer announced the start time as 5:43 am and the ending time as 5:45am. When the defendant was asked if he was consenting to a breath test, the defendant shook his head side-to-side and stated: “Until I speak to my lawyer, not —.” The officer interrupted and asked the defendant if he was consenting: “yes or no.” The defendant replied: “I am saying no because I don’t have a lawyer —.” The officer interrupted again and then quickly read a lengthy warning pertaining to the consequences of refusing to take a breath test. The officer again asked the defendant: “I will ask you again, will you take this breath test?” The defendant replied: “I will say no because I don’t have a lawyer and I don’t know what to do —.” Again the defendant was cut off. The officer then asked the defendant if he would take a physical coordination test. The defendant shook his head and said: “I am not taking anything until I get a lawyer.” The defendant was administered the Miranda warnings by another officer. When asked if he understood his right to remain silent and that the statement could be used in court, the defendant replied to each question: “Yes sir.” When it came to the question pertaining to his right to consult an attorney, the defendant stated: “Yes sir, that is what I was saying for a while ago, for a lawyer.” When finally asked if he wanted to waive these rights and answer questions, the defendant stated: “Not unless I have a lawyer.” The video then ends.


The Defendant was charged with, among other things, Driving While Intoxicated (VTL 1192). Defendant challenges the stop and subsequent arrest. Defendant further claims that the results of his blood alcohol test should be suppressed because his right to counsel was violated. The officer, a veteran in driving while intoxicated detection, pulled over the defendant inquired as to whether the defendant had anything to drink. At first, the defendant denied drinking anything. Sobriety tests were performed and a portable breath test came up with results of .07 and .08. The police officer asked the defendant again if he had anything to drink to which the defendant responded that he drank a sip of wine. The defendant was taken into custody and asked to speak to an attorney.

“A defendant has a qualified, not an absolute, right to counsel when deciding whether to submit to a breath test to determine blood alcohol content (see People v. Smith, 18 NY3d 544, 549 [2012]; People v. Gursey, 22 NY2d 224, 227 [1968]). However, once afforded, if that qualified right is to have any meaning, the communication between the defendant and his or her attorney must be private. Because the police prevented that privacy here, the court suppresses the results of the breath test, all statements defendant made while on the phone with his attorney, and that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 1. more

Under the New York State Constitution, a defendant’s right to counsel is Indelible. Once attached, police questioning must cease. Although overlooked by most people (and, usually, criminal defendants), once you demand an attorney within New York State, the police must stop questioning you without the presence of counsel. This is important whether confronted with a Driving While Intoxicated Charge or Homicide charge because the police can and will use anything you say against you. When confronted by the police, DEMAND AN ATTORNEY – Call 631-450-2515.

Here, The Appellate Division, Second Department, examined one such case where the Defendant started to talk but demanded an attorney while being questioned by the police. The Defendant was accused of, inter alia, sexual abuse and rape. The complainant was his ex-girlfriend. Before being charged, the Defendant was brought into the police station for questioning. The Court noted that he was not free to leave and he was Mirandized: he understood he had the right to counsel but, nonetheless, continued on and cooperated with the police questioning. He was told of the allegations against him and he demanded counsel. The Court noted the following:

approximately 45 minutes into the interview, in response to a question by the investigator, the defendant stated, “I have nothing to defend myself besides my…attorney I’m going to have to call now if [the complainant is] really pursuing charges.” The investigator responded by stating that he would go check on how the complainant was doing and left the defendant alone in the room. The investigator returned to the room after approximately 10 minutes…Thereafter, approximately 15 minutes later, when the defendant and the investigator were discussing the condition of the complainant’s pajamas, the defendant indicated that the pajamas were in perfect condition. When the investigator asked, “What if they’re ripped?,” the defendant responded that, if so, then the complainant did it. He also said, “She’s trying to burn me [and] I need to see private counsel or something. I need an attorney, because this is ridiculous.” The interview was not stopped at that point, but, shortly thereafter, the investigator pointed out to the defendant that he had brought up “the attorney thing” and inquired as to the status of that request. The defendant replied, “I have to get [an attorney]. I have to call my Georgia guy and get one that’s New York barred up here, I guess.” The interview was not stopped at that point and continued, uninterrupted, until the defendant requested a bathroom break, which he was given…

Pp. 2 (external quotation marks omitted).