• Issue Regarding Right To Pre-test

Herring

 

Issue Regarding Right To Pre-test Consultation With Attorney Resolved

For a number of years, the Sites defense was allowed at Motor Vehicle Administration (MVA) hearings. In Sites v. State, the court concluded that a person under detention for drunk driving must, on request, be permitted a reasonable opportunity to communicate with counsel before submitting to a chemical sobriety test, as long as such attempted communication will not substantially interfere with the timely and efficacious administration of the testing process.

Subsequent to Sites in 2011, the Najafi case caused Judges at MVA to call into question the right a licensee had to an attorney prior to making an election to take a blood/breath test, and its effect on the civil administration hearing. From my experience, based on the dicta in Najafi (statement by the court that is not binding law) a number of Judge’s were finding that a licensee’s denial to speak to an attorney before making an election to take or refuse the test, had no effect on their suspension at an MVA hearing.

The dispute regarding this issue was ultimately resolved on May 21, 2014 in the case of Motor Vehicle Administration v. Deering. The Court of Appeals of Maryland concluded that even if a suspected drunk driver is denied the opportunity to consult counsel before deciding whether to take a breath test, the driver remains subject to the administrative license suspension that the statute assigns to a test refusal or a particular test result. Therefore, the denial to speak to an attorney before making a test election is no longer a defense at an MVA hearing.

Although the Sites case was called into question during the discussion in Deering, the law still remains the same, as the Court of Appeals in Deering stated, “we need not decide the continuing vitality of Sites to decide this case.” Under Sites, an individual still has a due process right under the 14th Amendment and Article 24 of the Maryland Declaration of Rights to communicate with counsel before deciding whether to submit to the breath test.

As we would advise in any situation involving the police, always ask to speak to an attorney before making any decisions regarding taking or refusing a breath test, or any decisions whatsoever for that matter. While the refusal to speak to counsel will not have an effect in an administrative context (although I would argue under Atterberry, the request for counsel could still propose an issue at MVA), one still has a right in a criminal context.