3/2/16 In Arizona a person arrested for DUI has the right to consult with an attorney prior to submitting to the chemical tests as long as that consultation does not interfere with the ongoing police investigation. If the police do interfere with the person’s right to counsel the usual remedy is suppression of the use of the test results at trial, meaning the prosecutor cannot use the test results as evidence against the defendant.
The most common way this becomes an issue is, after being placed under arrest, the person asks a police officer to be able to call an attorney for advice. The officer then lets the person try to call an attorney, using the person’s cell phone or a police telephone. If after a period of time the person is unable to speak to an attorney and the officer says time is up, and you must submit to the chemical tests now. The officer is not required to wait any longer than 2 hours after the person has stopped driving. The question then becomes, how much time is enough time to consult an attorney.
In State v. Peraza the officer stopped the defendant’s car at 5:17 a.m. At 6:31 a.m., while at the station, the defendant invoked his right to counsel. The officer provided the defendant with a phone book and told him he could have 10 minutes to choose an attorney. Within 10 minutes, the defendant had twice attempted to reach the law firm he chose but was only able to leave messages for the attorney to call him back at the police station. The officer waited until 6:52 a.m. for the attorney to return the calls then, at 6:56 a.m., conducted the first chemical test which was a breathalyzer test. He conducted the second test at 7:02 a.m. The defendant was allowed in effect 21 minutes to contact an attorney, namely, from 6:31 a.m. to 6:52 a.m. The defense then asked the judge at trial to suppress the breath test results, arguing that 21 minutes was not enough time; the trial judge denied the motion. On appeal, the court of appeals said that was enough time.
http://www.apltwo.ct.state.az.us/Decisions/CR20150022Opinion.pdf
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