The Iowa Supreme Court is divided over whether a person is allowed to talk to an attorney before taking a test to determine if they were driving drunk.
John Arthur Senn Junior appealed his drunk driving conviction saying his right to talk to an attorney was violated because the arresting Des Moines police officer listened in on his phone conversation with his lawyer, and he was not able to talk with an attorney in private before his breath test.
Three of the Supreme Court Justices agreed with the district court that the right to a lawyer does not start until criminal charges are filed. The opinion says if a lawyer is required for the breath test it could also expand the right to questioning by police and for the consent for officers to conduct a search. It also says the state would have to make public defenders available 24 hours a day to field calls from detained motorists.
Three justices signed on to two different dissenting opinions. one which said the consequence of losing your driver’s license for failing to take the breath test and the alternative of agreeing to the test and being found intoxicate are difficult for most people under the best of circumstances. It says an attorney would help determine what could be proven and what couldn’t and the best course of action for the person to take.
Chief Justice Mark Cady agreed the district court ruling should be upheld, but did not join the other three justices, so there was not majority decision. That means the district court decision stands and the issue could be revisited.
Here’s the full ruling: Senn ruling PDF