Is There a Right to An Attorney Before Breath Test for Alcohol ?
In Hardie v. State, 807 S.W.2d at 322, Hardie's request for an attorney, which was made before refusing the breath test and after receiving Miranda warnings, was admitted in evidence at his DWI trial.
Although there was no right to an attorney before deciding whether to take the breath test and a request for an attorney was not a basis for suppressing a refusal to take a blood-alcohol test, we held that letting the jury hear the post-Miranda request for counsel denied due process:
Such adverse use of evidence that a defendant invoked a right or privilege which has been granted him, is constitutionally impermissible.See Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976) (denial of due process to use defendant's post-arrest, post-Miranda silence for impeachment purposes).
This is true even though the right or privilege was erroneously extended to a defendant, because the requirements of a fair trial make it impermissible to tell a defendant that he has a right, even if erroneously, and then use his exercise of that right against him. Doyle, id. 426 U.S. at 618 n.9.