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Iowa Supreme Court Reverses Lawyer's DUI Conviction

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By Mark Wilson, Esq. on November 21, 2014 3:21 PM

Hopefully, all of us know that jailhouse phone calls are recorded. This presents a problem for attorney/client communications, which are privileged. Iowa has a statute requiring police to inform an arrested suspect in jail of his right to a confidential, in-person conference with his attorney once the suspect requests privacy for the communication.

That didn't happen in the case of David Hellstern. After he was arrested for DUI, an officer denied his request for privacy during a phone call and didn't fulfill his statutory obligation to tell Hellstern he had a right to a private, in-person conference.

He Didn't Ask, So I Didn't Tell Him

After being taken to jail, Hellstern (himself a lawyer) called a lawyer. A police officer, Officer Dyer, was five feet away typing on his computer. Hellstern asked for privacy while he talked to his lawyer. Dyer said, "You can, but ... not on the phone." He didn't, however, tell Hellstern about his statutory right to a private, in-person meeting "because 'he didn't ask.'"

As a threshold issue, the Iowa Supreme Court determined that Hellstern's request for an attorney was sufficiently clear to invoke the statutory requirement. Dyer's response, while "technically correct," wasn't in keeping with the purpose of the statute's disclosure obligation, which is supposed to address the fact that many suspects aren't aware of their right to privately consult with an attorney in person.

After failing to meet with the attorney, Hellstern and Dyer bickered about whether Hellstern could go to the bathroom before taking the Breathalyzer test. Hellstern -- who really had to go -- relented, blowing well above the legal limit. The Breathalyzer evidence must be suppressed, the court said, because Hellstern lacked the advice of counsel in determining whether to take the test. The purpose of the statute allowing an attorney to meet confidentially with a client is to ensure that the client is making an informed decision about the testing. No informed consent? The test is no good.

Concurrence

Concurring, Chief Justice Cady wrote separately to point out that the court should reverse its prior cases and instead "require a peace officer to advise an arrested person of the statutory right to counsel." Cady argued that the nuances created by case law in applying the statute have allowed the state to "trap" suspects in much the same way Hellstern was trapped here under the theory that he didn't specifically request an in-person meeting with his attorney.

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