Do I have a right to contact an attorney after I am stopped under a suspicion of a DUI?

The short answer to that question is ‘absolutely.’

You have a right to contact an attorney as soon as you inform the officer of that right or you can wait until he asks you the question (as s/he is supposed to do that at some point before you blow into the Intoxilyzer at the station.) Failure of the officer to inform you of that right, at all, may get your case dismissed.

For those interested, here is the long answer. The right to counsel for a DUI stop in Kentucky is found in four places.

First, a person suspected of DUI must be informed of his or her right to contact an attorney and must be allowed no less than 10, but no more than 15 minutes to do so. KRS 189a.105(3). Even if you are unable to make contact with an attorney, however, during that period of time, a refusal to take the test will still result in a mandatory pre-trial operator’s license suspension. That means that by refusing to take the test, you will still be subject to the refusal provisions found in KRS 189a.107.

Second, if the KRS was not enough, the Rules of Criminal Procedure, namely § RCr 2.14, provide an individual a right to contact an attorney “as soon as practicable for the purpose of securing the services of an attorney.” RCr 2.14(1). The attorney even has a right to visit you in custody, if necessary. RCr 2.14(2).

Third, on top of the KRS and RCr, Section 11 of the Kentucky Constitution is available. “In all criminal prosecutions the accused has the right to be heard by himself and counsel.”

Finally, the Sixth Amendment to the United States Constitution reads, “[i]n all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defence [sic].”

It is worthy to note that Newman v. Hacker, 530 S.W.2d 376 (Ky. Ct. App. 1975), abridged the Sixth Amendment’s application to DUI arrests. Citing US v. Wade, the Newman court said that “procedures such as … the taking of blood and breath samples for analysis [are] not critical stages of a prosecution and the denial of the right to have counsel present at such procedures did not constitute a violation of the Sixth Amendment of the Constitution of the United States.” Newman, 520 S.W.2d at 376.

Nevertheless, I believe that Newman could be overruled if approached carefully, and even if it won’t, one can always look to the Kentucky Constitution, the Rules of Criminal Procedure, and the Kentucky Revised Statute for the protection of the right to counsel.

Your right to counsel is ascertained in many different places. Don’t let it slip you by.

If you need help with a DUI charge, or feel you have been denied your right to contact an attorney at some point during your encounter with law enforcement, you need competent and experienced counsel to help you with your case. Do not delay, call the DUI Guy today.


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Email: larry@larryformanlaw.com