A recent Missouri case involving an arrestee's right to a private consultation with his lawyer before deciding on a breath test highlights the 'privacy' element of the attorney/client discussion. In Jereme Roesing vs. Department of Revenue (SC97165, April 30, 2019), Jereme was arrested for driving while intoxicated, was transported to the police department and was read Missouri's implied consent law. Before deciding whether to consent to a chemical breath test, Roesing asked to speak with his attorney, and the officer allowed Roesing to attempt to contact an attorney. During the call, the attorney asked to speak with the officer, requesting to speak with Roesing in private. The officer refused to give Roesing privacy, advised the conversation would be recorded and stood near Roesing for the remainder of his conversation with his attorney. Roesing ultimately refused to submit to the chemical breath test, and the director of revenue revoked his driving privileges for one year pursuant to section 577.041, RSMo. Roesing sought review in the circuit court, which entered judgment sustaining the revocation after an evidentiary hearing. Roesing appeals.
In a 4-3 decision, the court of appeals held: Because law enforcement deprived Roesing of his right to confer privately with his attorney, and the director failed to show Roesing was not prejudiced, his refusal to the chemical test was not voluntary and unequivocal, and the circuit court erred in sustaining the revocation of his driving privileges. Section 577.041.1 provides a driver who wishes to speak with an attorney the right, upon request, to 20 minutes in which to attempt to contact the attorney. The statute's purpose is to give the driver a reasonable opportunity to contact an attorney to make an informed decision whether to submit to a chemical test. A driver who successfully contacts an attorney is afforded a reasonable opportunity to make an informed decision only if the driver is able to disclose candidly all necessary information to receive appropriate advice from the attorney. For a driver to have meaningful contact with an attorney, the conversation must be private, especially when read in harmony with section 600.048.3, RSMo, an older statute requiring law enforcement to have a private room available for a person held under a charge to talk privately with the person's lawyer. The legislature's decision not to eliminate the right to privacy in section 577.041 further indicates it is inherent in that statute. By listening to and recording Roesing's end of the conversation, law enforcement obstructed his opportunity to speak privately with his attorney, making his refusal of the chemical test involuntary and equivocal. The director failed to show Roesing was not prejudiced as a result. Despite the attorney specifically requesting privacy, an officer listened to and recorded Roesing's end of the conversation, then distributed the recordings to the prosecutor's office for use in Roesing's criminal case.
Note: Kansas' Implied Consent law does NOT provide for a consultation with a lawyer prior to breath testing. In fact, the Implied Consent Law states: 1) You have no right to consult with an attorney regarding whether to submit to testing...(see K.S.A. 8-1001(k)(3)).K.S.A. 8-1001k(3)
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