The Washington Supreme Court recently published an opinion in the case of State v. Fedorov, addressing the issue of whether a police officer’s presence in the room where the defendant was speaking with his attorney violated CrR 3.1, the rule-based right to counsel. The defendant moved to suppress the results of a breath alcohol concentration (BAC) test based on an alleged violation of CrR 3.1. The lower courts denied the defendant’s motion, and the defendant appealed his subsequent conviction.
Under Washington law, when a person is taken into custody, he must be immediately advised of his right to a lawyer and the opportunity to consult with a lawyer without charge if he cannot pay for one. CrR 3.1(c)(1). At the earliest opportunity, a person in custody who desires a lawyer shall be provided access to a telephone, the number of the public defender or official responsible for assigning a lawyer, and any other means necessary to put the person in communication with a lawyer. CrR 3.1(c)(2). The Fedorov court further explained that unlike the Sixth Amendment right to counsel under the United States Constitution, CrR 3.1 is more limited and provides only the opportunity to speak to counsel, rather than requiring actual communication with an attorney.
In Federov, the defendant was arrested for attempting to elude law enforcement and driving under the influence (DUI). He was transported to the Fife City Jail, where the defendant requested to speak with an attorney before consenting to the BAC test. Although both the defendant and attorney requested that the trooper leave the room, the trooper refused, since the jail was a large, one-room, windowless building and to do so would require him to leave the building.
The Washington Supreme Court ultimately held that the facts of the case did not result in a violation of CrR 3.1. The court explained that while the police must provide as much privacy as possible during an attorney-client consultation, the rule does not require absolute privacy. Instead, the court utilized a balancing test, in which the defendant’s privacy is weighed against legitimate safety and practical concerns, and analyzed on a case-by-case basis. In Fedorov, the court cited the following facts in support of its holding: giving the defendant complete privacy would have required the state trooper to lock himself out of the jail, the trooper was required by law to observe the defendant for 15 minutes prior to administering the BAC test, the trooper moved out of earshot to the other side of the room and did not hear the conversation between the public defender and the defendant, and the trooper had legitimate safety concerns due to the defendant’s lack of cooperation at the time of arrest. In addition, the court emphasized that CrR 3.1 provides limited protection, unlike the defendant’s Constitutional Sixth Amendment right to counsel. Finding that all of the requirements of CrR 3.1 were satisfied, the court affirmed the conviction.
If you have been charged with a DUI, seeking the assistance of an experienced criminal defense attorney can be beneficial in understanding and protecting your rights. The attorneys at Blair & Kim, PLLC provide dedicated advocacy to clients facing charges of DUI, domestic violence, or other criminal offenses in Washington. To discuss your case with one of our experienced attorneys, contact our office at (206) 622-6562 or through our website.
More Blog Posts:
Washington Court Holds That Defendant’s Previous Conviction Elevates DUI to Felony Charge, Seattle Attorneys Blog, published September 15, 2015
Preparing for your DUI Arraignment, Seattle Attorneys Blog, published April 26, 2015