Does a Person Have the Right to Contact Counsel During a DUI Investigation?

Unfortunately, the answer is “no.” In Rackoff v. State, 281 Ga. 306, (2006), the specific issue was whether a person arrested for DUI entitled to the advice of counsel before deciding if he should take a breath test.  The Supreme Court of Georgia stated:

[T]he right to counsel does not attach automatically upon arrest. In fact, the Sixth Amendment right to counsel does not come into play until the criminal process has progressed to a “critical stage” after the initiation of adversary judicial proceedings . . . and Georgia’s constitutional right to counsel does not attach unless the proceeding constitutes a “critical stage.” A critical stage in a criminal proceeding is that point at which rights may be lost, defenses waived, privileges claimed or waived, or the outcome of a case may be substantially affected.

Id. at 308-309. The Court reasoned individuals do not have the right to counsel at this stage because ‘no formal proceedings had been initiated,’ and, ‘there is little value a lawyer could add that would substantially affect the fairness of the trial.’

But how can this decision stand in light of our discussion regarding the implications of the State requested chemical test under the Implied Consent Warning? Why is this decision not a critical stage in the case?

Know Your Rights

Because the Court has ruled you do not have the right to legal counsel during a DUI investigation, it is incredibly important you know your rights if being questioned by the police. First, do not make any statements to the police. Second, politely decline to perform any Field Sobriety Tests and the Portable Breath Test. These tests are voluntary.

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.