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North Dakota v. Lee: You Must Be Clear in Request for Attorney Prior to DUI Chemical Test

Posted by Steven Eversole | Jun 16, 2012 | 0 Comments

Most law enforcement officers won't tell you this, but in Alabama, you do have the right to consult with a Birmingham DUI lawyer before you submit to a chemical test.

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However, the time frame for you to request this is limited, and you risk a Birmingham DUI conviction if you aren't clear in your request.

That's what happened in North Dakota v. Lee. This case wasn't out of Alabama, but the basic assumption is still the same: You have the right to an attorney, but you must calmly and clearly state your intent.

In this case, Jens Lee was pulled over for speeding while he was on his motorcycle. The officer who stopped him subsequently began to perform several field sobriety tests. Lee was placed under arrest, and then agreed to take a breathalyzer test (Intoxilyzer brand). As he sat in the back of the cruiser, just prior to having this test administered, a verbal exchange between Lee and the officer was recorded by an in-car camera.

In that conversation, Lee told the officer, “I hope you understand I've got to have Cash give me a good try.” When the officer asked what Lee meant by that statement, Lee responded “Cash Aaland,” who is a well-known attorney in the Fargo area.

The officer later testified that the defendant had told him that he would be in touch with Cash, which he understood to mean the defendant would be contacting this attorney.

Once the defendant arrived at the police station, he made no further reference to either Aaland or to any attorney. He then submitted to the breathalyzer test. The appeals court documents don't list an exact blood alcohol measure, but do note that it was apparently well over the limit of 0.08.

Prior to entering a plea agreement, Lee argued that the breathalyzer measure shouldn't be allowed to be considered as evidence because he had been denied his right to consult with an attorney prior to submitting to that test.

The district court denied that motion, and he subsequently pleaded guilty.

However, he later appealed the decision, indicating that the court was wrong not to suppress that evidence. His statement that he wanted Cash to “give him a good try” should have invoked his right to speak with a lawyer before he submitted to a test. That the police officer didn't allow him a reasonable opportunity to do so should have been a basis to toss that evidence.

The appeals court, in considering the case, said there is no set of “magical words” that the defendant has to say in order to talk to his or her attorney. Basically, a defendant can ask to see one, talk to one, have one, etc., and the law enforcement officer has to provide a reasonable opportunity to do so. If they don't, the defendant's refusal to submit to a test can't be used as a basis for license revocation (at least in North Dakota).

In this case, however, the state contended that Lee was not clear in saying he wanted an attorney before he submitted to a chemical test. All he said was the name of an attorney and a general indication that he planned to fight the charge.

The appellate court sided with the state in determining that if Lee's statement was a request for an attorney, it wasn't a clear one, and therefore could not be used to toss that evidence.


If you have been arrested for a DUI in Birmingham, contact Alabama Defense Attorney Steven Eversole at (866) 831-5292.

Additional Resources:
North Dakota v. Lee, Justia Dockets

More Blog Entries:
Birmingham DUI Manslaughter Conviction Upheld, May 30, 2012, Birmingham DUI Lawyer Blog

About the Author

Steven Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama

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