Believe it or not, in the State of Missouri, you have a right to consult with an attorney prior to consenting to a breathalyzer test.

The right to consult with an attorney is actually a statutory right and not a constitutional right. Spradling v. Deimeke, 528 S.W.2d 759, 764 (Mo.1975); Albrecht v. Director of Revenue, 833 S.W.2d 40, 41 (Mo.App.1992).

What is the difference?

Constitutional Right to Counsel

The Sixth Amendment provides in all criminal prosecutions everyone has a right to have “assistance of counsel” for their defense. Of course, there’s exceptions! Your Sixth Amendment rights are only given to you during “critical stages” of criminal proceedings. Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985). Generally, your Sixth Amendment will only attached after the government initiates adversarial criminal proceedings; preliminary hearing, indictment, arraignment, etc.

Additionally, your Fifth Amendment Right allows for assistance of counsel as well. During a custodial interrogation by a police office, even without formal charges by the government, you have the right to have an attorney present during that interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Statutory Right to Counsel

In contrast from a Constitutional Right, a Statutory Right is a right that is granted under a statute. Essentially, it is where a State enacts a law giving its citizens rights that are additional right to their Constitutional Rights. Here, Missouri Statute § 577.041.3 given a person in the State of Missouri the right to consult with an attorney prior to consenting or refusing to consent to a breathalyzer test during a DWI stop. Specifically:

If a person when requested to submit to any test allowed pursuant to section 577.020 requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney. If, upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal.

This was reinstated with the Missouri Appellate Court in Albrecht v. Director of Revenue, 833 S.W.2d 40, 41 (Mo.App.1992).

The Limited Statutory Right

This statutory right is not automatic and has its limits. Albrecht, 833 S.W.2d at 41. The right does not trigger unless you specifically ask to speak with an attorney. State v. Foster, 959 S.W.2d 143, 146 (Mo.App.S.D.1998);  Green v. Director of Revenue, 849 S.W.2d 658, 660 (Mo.App. W.D.1993).

No Take-Backs

If you are asked by the arresting officer to take a breathalyzer test and immediately refuse instead of asking to consult with an attorney, you cannot rescind your refusal. Under Missouri Statute § 577.041.1, once a driver has refused to submit to a breath test, then “none shall be given.”   After refusing the breathalyzer, yoru subsequent request or offer, at a later time, to take the test does not alter his or her earlier refusal.  Blanchard v. Director of Revenue, 844 S.W.2d 589, 590 (Mo.App.1993);  See also, Borgen v. Director of Revenue, 877 S.W.2d 172, 175 (Mo.App. W.D.1994);  Dudenhoeffer v. Director of Revenue, 780 S.W.2d 701, 703 (Mo.App. W.D.1989).

If you’ve been stopped under suspicion of DWI and are asked to submit to a breathalyzer test, immediately ask to consult with an attorney! Once you are asked, by the officer, the time starts ticking. Make sure you have any attorney you’re ready to call and an attorney that’s ready to take your call. The majority of the time, you’ll be stopped after last call; in the middle of the night. Howard Law takes calls 24 hours a day 7 days a week at (314) 833-3505 and is ready to assist you through whether or not you should blow.

About The Author

Evan M. Howard is the managing attorney for Howard Law, a St. Louis criminal defense law firm based in Clayton, Missouri. Focused on giving honest, quick and effective representation to all of its clients. With a experience dealing in tough criminal prosecution cases, Howard Law is ready to help guide you through your legal matter.

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