Should I take the breath test? Hey, I do have the right to counsel! 

People v. Washington and its Impact on the Right to Counsel

New York's Vehicle and Traffic Law does not address whether a motorist arrested for driving while under the influence of alcohol has a right to consult with a lawyer prior to determining whether to consent to a breath test.

New York courts have however, long recognized that such a motorist has a limited right to counsel. People v. Gursey, 22 N.Y.2d 224 (1968)[1] This limited right to counsel mandates that upon a request by an accused to speak with counsel law enforcement "may not, without justification, prevent access between the criminal accused and his lawyer." Gursey, at 227.

                Up until recently this limited right to counsel was triggered by a motorist's request to speak to counsel.   However in the recent decision of People v. Washington, 964 N.Y.S.2d 176 (2d. Dept. 2013) the Court extended this to requestss made by counsel and not the accused. In Washington, the police requested that the defendant submit to a breath test and the defendant gave her consent at 3:30 a.m. The breath test was administered at 3:39 a.m. At 3:31 a.m. an attorney retained by the defendant's family called and spoke to a police dispatcher at police headquarters. The attorney notified the police that he represented the defendant and stated "[y]ou have to stop all questioning and we are not consenting to any form of testing whatsoever." The police did not allow counsel to speak to his client. Applying the holding in People v. Garofolo, 46 N.Y.2d 592 (1979) the Court held that when the police are aware that an accused has counsel the accused right or access to counsel may not be deprived.

                This decision is important because it extends the State constitution right to counsel and its principles to individuals faced with the choice of submitting to a breath test.   Based on this holding it is essential that counsel who undertakes to represent a person accused of driving while under the influence of alcohol promptly notify the police and document the precise time of any such efforts. If the efforts to speak to a client are frustrated by the police it may in fact lead to the suppression of the most important piece of evidence in the case, the results of the breath test.