Attorneys from time to time are awakened in the middle of the night by a telephone call regarding a client who is in the process of being arrested. When attorneys handle such a telephone call that pertains to a driving while under the influence of alcohol or drugs offense (DUI) offense, they should be aware that the actions they take at that very moment can dramatically change the outcome of their client's case.

Motorists arrested for a DUI offense in New York are typically asked to submit to a breath or a blood test to determine their blood alcohol concentration (BAC). This evidence is instrumental in a DUI prosecution and New York Vehicle and Traffic Law §1195 gives such evidence significant importance at trial. In short, it can result in prima facie evidence that will establish intoxication and make or break the government's case. When faced with the choice given to them by law enforcement to take or refuse a breath test, motorists often do not know what to do. In trying to make that decision, motorists sometimes reach out to an attorney for advice or assistance. In other instances, the client's family or friends may reach out to an attorney early on in the process to retain you to represent the person being charged.

New York's Vehicle and Traffic Law does not address whether a motorist arrested for driving while under the influence of alcohol has a right to consult with a lawyer prior to determining whether to consent to a breath test. At this early stage, the Sixth Amendment right to counsel has not yet attached because "official judicial proceedings" have not been commenced. Kirby v. Illinois, 406 U.S. 682, 688 (1972). New York courts have, however, long recognized that a motorist at this early stage does have a right to consult with a lawyer prior to determining whether to consent to a breath test. This has been described as a limited right to counsel. See People v. Gursey, 22 N.Y.2d 224 (1968). This limited right to counsel mandates that upon a request by an accused to speak with counsel, law enforcement "may not, without justification, prevent access between the criminal accused and his lawyer." Gursey, 22. N.Y. at 227.