Stephen G. Cobb - Florida Criminal Defense Lawyer

Can I Talk To A DUI Attorney Before Taking A Chemical Test?


Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

As a practical matter, no, you may not talk to an attorney prior to a chemical test. The reason is because, at that juncture, a person is already in handcuffs, and taken to the breath testing facility, wherever that happens to be in their jurisdiction, and not allowed to talk to an attorney. However, for the sake of argument, let us say that they were this is what the lawyer wants to tell the person what is the truth versus the law, which says that an attorney cannot tell the person that even though it is true. As a lawyer, on the defense side, what you want to say regarding any type of request for fingerprints, voice stress analysis, polygraphs, breath tests, drug tests, field sobriety exercises, anything, you want them to say nothing at all.

The best example of this is a prosecutor who told me the story of a man who was pulled over for a DUI, and had his driver’s license ready when the cop came to his window. The cop started asking a series of questions, “Where were you going, why are you driving so fast, where are you coming from”, and the guy did nothing but hold his license and point to the license. Finally, the cop said, “You are not going to say anything, are you?” The guy just pointed at his license. He did not say a word, so there was no way an officer could say that his speech was slurred, he did not take a breath test, and he did not perform any field sobriety exercises. Therefore, with the body cam, all you could see would be somebody sitting there pointing at their license, not saying a word.

From a defense perspective, that is the perfect way to handle a DUI stop and a request for a breath test. We know that if somebody takes the breath test and you blow twin zeros, not a drop of alcohol in their body, they are going to be told that they have to take the whiz quiz and pee in a cup. If they refuse to pee in a cup, because they have already given a breath test, they are going to be charged with DUI refusal. If they do pee in a cup, they are going to be charged with a DUI, because they are not going to get the results for some time. Therefore, either way, someone is going to get charged with a DUI. However, the law says if somebody asks, do I have to give a breath test, as an attorney you cannot tell him or her, “Shut up, don’t make statements and don’t take a breath test”. You are not allowed to tell them do not take a breath test even though you know if people do exactly what I described earlier, they are more likely to have an acquittal because they are not giving evidence against themselves.

However, the bar frowns upon a lawyer telling a client the truth, and the reason for that is the law that states someone has to take a breath test, or they will be charged with a refusal if they do not, and they will be charged with the second refusal, which is criminal if they have had a prior DUI. Therefore, in the eyes of the bar, that is a lawyer telling a client to break the law. However, the reality is when encountering law enforcement, they would do nothing more in every case, no matter what kind it is, than to show their driver’s license, shut up and not do anything else. They cannot talk themselves out of the ride, which many people try to do, then the outcomes in their cases would be better. Therefore, the short answer about whether or not someone can contact a lawyer before deciding to take a breath or blood test does not really matter.

How Often Should I Meet With My Attorney To Discuss My Case In the First 30 Days After An Arrest?

That is one of the best questions you could have asked, and the reason I say this is because I began practicing criminal defense law July 2 of 1990. At the beginning of my career, there was no internet like there is now. There certainly were no Smartphones. Everybody came to the office for an office visit, everything was handled in a building, there were many court appearances and lots of meetings. Now, in 2017, it is a completely different world. There are entire cases where people do not meet with their lawyers and that is completely normal. How can that happen? For example, you have a couple that comes down for a family vacation to Destin Florida and one of them is arrested. It could be for a DUI, it could be for a domestic violence, it could be a whole host of other charges.

If it is a criminal misdemeanor, it is common to handle the entire case without the person having to return to Florida, and it is more common these days to handle the entire case without a face-to-face meeting other than a Skype video, or an iPhone face time at the most. This is because technology has made life a lot easier for all of us. If someone is local to the area, and they want to meet with their attorney, they certainly can, but there has been a dramatic decline in the number of office visits since the beginning of my career. At the beginning of my career, I remember having days on end with multiple office visits. In today’s world, we can send documents by secure length, quickly discuss it by secure telephonic conversation, and the office visits that were necessary in 1990, are no longer necessary in 2017.

For people who live out of the area, this is an absolute godsend even in felony cases. I currently am handling felony cases where I have had one to two meetings with the client, and a family member. They are out on bond in another part of the state or out of state, and I probably will not see these individuals again until right before a court if the case follows through and even goes on to a court hearing. Court hearings will be scheduled, but that does not mean court hearings will happen. This is very helpful for people because, in the old days, someone might have to travel from, say, Maryland, the example I used earlier, a few times in a misdemeanor case and several times in a felony case. Imagine this, you have driven many hours, paid for a hotel, then you go to a courthouse where you sit for several hours, and then finally your name is called. When your name is called, you go up to the podium with your lawyer, there are brief bits of legal speak lasting under thirty seconds.

You walk out of the courthouse going, “Why did I need to be here for the brand new set of the court date?” This seems to happen to people routinely. One of the most abusive aspects of the way we use to practice criminal law before technology made it so much easier was the fact that people were forever having to run down for the lawyer’s office to drop off documents, or stop what they were doing and take time out of their busy schedule, and explain to everyone, or whatever they needed to do, to go to criminal court. This is not exactly the high lite of anybody’s day, and then you would have these long and tedious court appearances where it seemed like nothing was happening. This is very frustrating for most anyone.

In the first thirty days, you will need to meet with your attorney, but that meeting can be telephonic, by video, or it can be in person. The necessity of having to run down to the law office to drop off a signed agreement for representation is gone, the need to stop what you are doing and run down to the law office to drop off a signed waiver of the speedy trial is no longer necessary. During the initial consultation, we lay the groundwork, from there, we have a system that is a series of assignments for our lawyers, and for the non-lawyer staff members, and for our clients that move everything smoothly. We have far fewer meetings than we used to have at the beginning of my career. The results have improved dramatically as well as the effectiveness from a client’s perspective because their time is not always leaving them feeling like its being wasted.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

For more information on Chemical Tests In DUI Cases, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 466-1522 today.

Stephen G. Cobb, Esq.

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