Posts tagged with "Notice of Rights"

Superior Court Denies Motion to Dismiss, Tape Recording of DUI Suspect’s Phone Call to Attorney Was Not Prejudicial State Intrusion

In a criminal law matter, a Superior Court of Connecticut determined that the recording of a one-sided conversation between the defendant and his attorney was not a prejudicial intrusion into attorney-client protections, and as such the Court denied the defendant’s motion to dismiss.

Case Background

This case arose from an incident that occurred on the evening of March 25, 2010. A police officer on route patrol observed the defendant driving his motor vehicle on the Berlin Turnpike in Wethersfield, CT. The officer suspected that the defendant was driving under the influence, so he initiated a traffic stop and administered several field sobriety tests. The defendant was arrested for operating a motor vehicle while under the influence (OMVUI) in violation of General Statutes § 14-227a, advised of his Miranda rights, and transported to the police station.

The defendant was placed in a booking room specific to OMVUI cases. Pursuant to its own policy, the department records everything that goes on in this room. As the officer in this case later testified, “[U]ntil the processing is complete, police policy requires the officer to keep visual observation of the defendant ‘so they don’t put anything in their mouth.’”

The officer gave the defendant a notice of rights, which included information about the results of or the refusal to submit to a chemical alcohol test, and stated the defendant could contact an attorney. The defendant made telephone contact with an attorney, and police recorded the defendant’s side of this conversation, which at times was either muffled or inaudible.

The Sixth Amendment

After the phone call was completed, the defendant refused to take the Breathalyzer test. The officer did not use the contents of the tape in his investigation, nor did it influence the charges brought against the defendant. In addition, upon learning of the tape’s existence, the prosecutor advised defense counsel that the State also would not use it; indeed, the tape was not introduced into evidence. However, the defendant moved to dismiss the case, arguing that his Sixth Amendment rights were violated because the tape recording constituted an impermissible State invasion of the attorney-client relationship.

Under the Sixth Amendment, any communication between an attorney and his client “made in confidence for the purpose of seeking legal advice” is protected by the attorney client privilege. However, this is no reasonable expectation of confidentiality if the statements are made in the presence of a third party. Therefore, a reviewing court must consider whether or not an invasion by the State into this privilege was “so prejudicial to warrant dismissal of the charges.”

There is a rebuttable presumption of prejudice, which can be overcome if the prosecutor presents clear and convincing evidence that the intrusion was nor prejudicial to the outcome of the case. In an opinion, the Supreme Court of Connecticut admitted that the Sixth Amendment is automatically violated where there is “mere unintentional intrusion into privileged information containing trial strategy.”

The Court’s Decision

In this case, the Superior Court reviewed the content of the one-sided phone call and determined that there was nothing of strategic value discussed, such as the credibility of trial witnesses, potential evidence, what to focus on during witness examinations, or specific arguments or defenses. Rather, from the conversation we learn that the defendant was concerned with his probation status, whether to take the Breathalyzer test, the implications of a refusal, and his wife’s reaction to the arrest. Therefore, the Court found the defendant was not prejudiced by the State intrusion and denied his motion to dismiss.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Superior Court Denies Motions to Suppress in DUI Case, Finding Defendant’s Constitutional Rights Were Not Violated

Case Background

This case arose from an incident that occurred on April 6, 2008. A police officer received word from dispatch that a restaurant drive-thru employee called in to report a customer, the defendant, who appeared to be under the influence of alcohol. The officer was given specific information about the vehicle and told that this was the third such report received. The officer promptly located the defendant’s vehicle and initiated a traffic stop.

When the officer approached the vehicle, he observed beer cans on the back floor of the defendant’s car in plain sight. Some of these were empty, and all were seized as evidence. After additional officers arrived on the scene, they conducted field sobriety tests and then arrested the defendant and brought her to police headquarters.

There, the officers advised the defendant of her Miranda rights and had her review a Notice of Rights form, which included information regarding implied consent and the chemical alcohol test refusal. The defendant was told she could call an attorney, but she was unable to successfully make contact with one. After fifteen minutes passed, officers advised the defendant that she had to decide whether or not to take the test, so she refused.

The Charges

The defendant was charged with operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of General Statutes § 14-227a. She moved to suppress statements she made as well as evidence collected from the motor vehicle stop and during a search of her car. In support of her motions, the defendant argued that police violated her rights under the Fourth and Fifth Amendments of the U.S. Constitution.

The Fourth Amendment protects people from unreasonable searches and seizures, and generally police must have a warrant to conduct a search. However, there are four recognized, narrow exceptions where the warrantless search of a vehicle is reasonable, including “when there was probable cause to believe that the car contained contraband or evidence pertaining to a crime.” Officers may seize contraband that it finds in plain view, and “such observations give rise to probable cause justifying a search of the vehicle.”

The Fifth Amendment, in part, prohibits compelled self-incrimination. The well-known recitation of Miranda warnings stem from the construction of this Amendment, and two conditions are required before an officer must invoke this warning: custody and interrogation. Waiver of Miranda rights must be made knowingly and voluntarily, which must be proven by the State by the preponderance of the evidence.

Under Connecticut law, in an action where a defendant is charged with OMVUI, the jury may draw permissive inferences from the fact that the defendant refused to submit to a breathalyzer test. In addition, identifiable citizen informants are presumptively reliable, and officers are justified when they assume that the informant is providing truthful information. Because of the pervasive state interest in preventing drunk driving, officers do not have to wait for the defendant to drive erratically or cause an accident before pulling them over.

The Court’s Decision

In this case, the Superior Court of Connecticut adjudicating the case denied all of the defendant’s motions. It found that police had a reasonable and articulable suspicion to stop the defendant, based on the information provided by the restaurant employee, an identifiable citizen informant. The seizure of the beer cans, which were in plain view, was permissible. In addition, because there was no interrogation at the police station, the defendant was not compelled to incriminate herself. Rather, pursuant to General Statutes § 14-227b(b), police officers have the explicit authority to request that a defendant arrested for OMVUI sub.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.