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Consulting Attorney During DUI in Utah

Under Utah law, you do not have the right to consult with an attorney before giving a chemical sample. The Sixth amendment of the United States Constitution states “in all criminal prosecutions, the accused shall have the assistance of counsel for his defense.” An administrative revocation is not a criminal trial. It is a civil administrative hearing; thus, no trial to counsel is implied. Furthermore, this is the correct reading because of the nature of a DUI. Alcohol dissipates quickly within a person’s body. If the government had to stop and let every single suspect talk to her lawyer, no DUI conviction is possible. The alcohol would dissipate throughout the body and all readings would be lower. Finally, it is the statute’s intent to stop drunk drivers from harming other individuals. In order to carry out the intent, right to an attorney has to be curbed. Taking all these interests into consideration, Utah grants no right to counsel before giving a chemical sample.

There is one exception around this general rule. You might not be able to consult with your attorney, but you might be able to avoid the implied consent law. At least one case has indicated that your Miranda warning might override the implied consent statute. In that case, the defendant was involved in a car accident. Upon arriving at the scene, the officer gave the defendant his Miranda warnings. The officer then informed the defendant of the Implied Consent Statute. Upon appeal, the court held that the defendant was confused as to whether he had to give a sample or if he could consult with his attorney. The officer failed to dissipate the confusion. Thus, the court is unclear as to whether the defendant would have given consent if he was only told of the implied consent statute. The court vacated the judgment and remanded to the court.

Thus, if the Miranda warning and the implied consent statute is given consecutively, the officer must indicate which applies “clearly, fully, and understandably.” If not, the refusal to give a sample is not a “refusal” for administrative revocation purposes.


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