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 ; People v. Gursey, 22 NY2d 224, 227 ). 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.
Because certain phones within the police station were allegedly not working, the Police Officer “allowed defendant to use his (Officer Winn’s) own private cell phone.” Pp. 4. Seems innocent enough, right? Wrong. “[B]ecause Officer Winn was concerned that defendant would break his cell phone (Officer Winn explained that, on a prior occasion, a defendant broke his phone), the Officer held the cell phone, while defendant used the speakerphone feature to speak to his wife and then his attorney.” Id. Why would the officer make that assumption? The law in regards to the right to counsel in New York Driving While Intoxicated cases is quite clear:
In People v. Gursey, 22 NY2d 224 (1968), the Court of Appeals recognized that a defendant has a qualified right to consult with an attorney about whether to submit to a breath test when under suspicion or arrest for driving while intoxicated. The Court acknowledged that alcohol dissipates rapidly in the body and therefore a breath test is time sensitive (id. at 229). However, so long as communication between lawyer and client does not “interfere unduly” with administration of the breath test, the police cannot “prevent access between the criminal accused and his lawyer” (id. at 227). The Court elaborated that a telephone call to an attorney would conclude in a matter of minutes and therefore would not interfere with the investigative procedure (id. at 228). Accordingly, “the denial of defendant’s requests for an opportunity to telephone his lawyer must be deemed to have violated his privilege of access to counsel” (id.).The Court of Appeals has reaffirmed the rule in Gursey twice in recent years (see People v. Smith, 18 NY3d 544, 549  [“as we explained in Gursey, the right to seek the advice of counsel — typically by telephone — could be accommodated in a matter of minutes and in most circumstances would not substantially interfere with the investigative procedure”]; People v. Washington, 23 NY3d 228, 234  [failure of police to notify defendant, after she had consented to chemical breath test, but before she had performed it, that an attorney had telephoned the station on her behalf, violated her qualified right to counsel]). A violation of defendant’s qualified right to counsel generally requires suppression of the breath test results (Smith, 18 NY3d at 550; Washington, 23 NY3d at 232)….The right to counsel includes “the right to consult counsel in private, without fear or danger that the People, in a criminal prosecution, will have access to what has been said” (People v. Cooper, 307 NY 253, 259, 120 NE2d 813 ; see also People v. Gamble, 18 NY3d 386, 396 [“[i]ntrusion upon a client-lawyer conference, whether in the privacy of an office or at the counsel table in court, contravenes our sense of traditional fair play and due process”] [citations omitted]; Coplon v. United States, 191 F2d 749, 759 [DC Cir.1951] [the Fifth and Sixth Amendments “guarantee to persons accused of crime the right privately to consult with counsel both before and during trial. This is a fundamental right which cannot be abridged, interfered with, or impinged upon in any manner”]).
Pp. 5-6 (external quotation marks omitted and internal citations preserved). Here…. “Suppression is necessary because the police violated defendant’s limited right to counsel when they would only permit defendant to talk to his lawyer on speaker phone in the presence of third persons.” Pp. 5. Not only did the police officer not have a phone which the defendant could use in private, the police officer held the phone while the defendant listened through the speaker phone feature… on video. “Once afforded, if the right to counsel is to have any meaning, the communication between lawyer and client must be private.” Pp. 6. As if it is not strange enough that there were no private phones available in the police station (what about all the other suspects who wanted to speak to an attorney), one might ask where the defendant’s cellular phone was. After all, everyone has a cellular phone these days: “This result is all the more appropriate given that the police had confiscated defendant’s phone, and, therefore, defendant could not use his own phone to call his attorney. If Officer Winn was so concerned that defendant would have broken the Officer’s phone, he could have given back defendant his own phone to use.” Pp. 7 (emphasis added).
“In conclusion, defendant’s qualified right to counsel was effectively destroyed when the officer: (1) placed the entire conversation on speakerphone; (2) stood so close that he could overhear the entire interchange and even answer some questions himself; and (3) recorded the entire conversation on video. Accordingly, the court suppresses: (1) the results of the breath test; (2) any statements defendant made to his counsel; and (3) that portion of the video showing defendant’s breath test and statements to counsel.” Pp. 7. The Court suppresses the breath test results and the portions of the video containing statements the defendant made to his attorney.
The case is People v. Moffitt, 2014NY060669, NYLJ 1202745797904, at *1 (Crim., NY, Decided November 17, 2015)