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Top court weighs DWI suspect’s right to call lawyer before test

ANNAPOLIS — A police officer cannot reject a motorist’s request to call and consult with an attorney before submitting to a blood-alcohol concentration test when failure could result in a suspended driver’s license, a defense lawyer argued before Maryland’s top court Thursday.

Such rejection deprives the motorist of his or her right to due process under the Maryland Constitution, attorney John K. Phoebus told the Court of Appeals.

Phoebus, however, stopped short of arguing that counsel must be provided to indigent motorists or that police must advise the detainee of the right to call an attorney.

“If you have an attorney, you can call him up,” Phoebus said on behalf of a Fruitland motorist whose request to counsel was denied shortly before she failed the BAC test and had her license suspended.

“The officer should not say, ‘No,’” he added.

But Chief Judge Mary Ellen Barbera noted that Maryland drivers impliedly consent to submitting to a BAC test as a condition of having a license. Due process generally does not require consultation with a lawyer when consent has already been given, she said.

“The license is a privilege of course,” Barbera added. “You made the choice [to consent] in applying for and accepting that license.”

Other judges criticized Phoebus’ argument as unfair to low-income motorists, who generally do not have attorneys on speed dial.

“You are advocating for a right for the affluent, those who can afford an attorney,” Judge Clayton Greene Jr. said.

Judge Lynne A. Battaglia, picking up on Greene’s concern, said Phoebus’ position could require that public defenders be on call to consult with drivers suspected of being drunk because Maryland case law on the right to counsel makes no distinction between rich and indigent.

She cited the Court of Appeals’ September decision in DeWolfe v. Richmond, in which it held that the Maryland Constitution creates a due process right to counsel in all proceedings in which the defendant faces possible incarceration, including initial bail hearings before district court commissioners. (The Richmond decision has spurred concerns about the practicality and cost of providing public defenders at the 177,000 annual proceedings statewide, which the public defender has estimated at a minimum of $28 million per year. Measures to reduce the impact are being considered by the General Assembly. )

In court Thursday, though, Phoebus drew a distinction between Richmond and his client’s case, and said having public defenders on call around the clock would be impractical.

So far, Phoebus’ argument in favor of a right to consult counsel has prevailed in court.

Somerset County Circuit Court Judge D. William Simpson overturned the Motor Vehicle Administration’s 90-day suspension of April Marie Deering’s license in 2012, which an administrative law judge had upheld.

Simpson said Deering’s due process rights were violated when the Fruitland police officer who pulled her over shortly after midnight on May 3, 2012, denied her request to call her attorney before she submitted to a BAC test at the Maryland State Police barracks in Princess Anne about 90 minutes later.

The test showed a reading of 0.16, double the legal limit, according papers filed at the high court.

Arguing for the MVA, Assistant Attorney General Leight D. Collins said drivers have impliedly consented to being tested as a condition of having their licenses.

In addition, Collins said the officer read a written statement from a state form telling Deering that the penalty for refusing to take the test was automatic suspension of her license and that she had a right to an administrative hearing after the test.

“There is no due process violation when the person is properly advised” of his or her legal consequences and rights, said Collins, urging the high court to reinstate Deering’s 90-day suspension.

The National College for DUI Defense and the Maryland Criminal Defense Attorneys’ Association have filed a joint brief at the high court in support of Deering’s asserted right to call a lawyer.

“The manner in which the officer reads the form can…detract from its ability to be understood,” attorney Leonard R. Stamm wrote in the friend-of-the-court brief. “Additionally, most suspects have no legal training or understanding to assist them in making an intelligent decision, that usually occurs late at night, when they are tired, afraid, upset and traumatized.”

Stamm is with Goldstein & Stamm P.A. in Greenbelt.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Motor Vehicle Administration v. Deering, No. 52, September Term 2013.