The Right to Speak With a Lawyer Before Taking a Breath Test Cases in New York

In People v. Gursey, 22 NY2d 224, 227, 239 N.E.2d 351, 292 N.Y.S.2d 416 (1968), while being questioned at the station house, the defendant specifically asked "permission to call his lawyer and was told, You will be allowed to make a call to your attorney after I get this information.'" In Gursey, it was significant that defendant had a particular attorney in mind when he requested permission to call. Also, the defendant in Gursey made a second specific and unequivocal request to speak with this attorney when asked to take a drunkometer or breath analysis test. Both of the defendant's requests were denied. See Gursey, 22 NY2d at 227. In People v. Smith, 18 NY3d 544, 965 N.E.2d 928, 942 N.Y.S.2d 426 (2012), the defendant unequivocally asked to speak with his lawyer. The troopers permitted the defendant to call his lawyer and allowed the defendant to wait a half-hour for a return call from his lawyer before approaching the defendant for a second time to ask whether he was willing to consent to a chemical test. The defendant refused again stating that he wanted to speak with his lawyer. The troopers, without telling the defendant that his time for deliberation was up, deemed his response a refusal. The Court of Appeals in Smith concluded that the troopers satisfied the requirements of Gursey. In People v. Hart, 191 AD2d 991, 594 N.Y.S.2d 942 (4th Dept.), lv. denied, 81 NY2d 1014, 616 N.E.2d 859, 600 N.Y.S.2d 202 (1993). There the defendant's statements to the police that he should have counsel did not unequivocally inform the police of his intention to retain counsel, or that he wanted the opportunity to consult with an attorney before speaking to the police or undertaking the sobriety tests. The Court ruled that the defendant's statements were insufficient to invoke his right to counsel.