On April 30, 2019, a fractured panel of the Missouri Supreme Court held that Missouri drivers are entitled to speak with an attorney in private before deciding whether to submit to a test to determine their blood alcohol content. When my client was arrested and requested to submit to the breathalyzer, he asked to call his attorney. The arresting officer allowed my client to call his attorney, but he stood approximately 3-4 feet away, refused to allow my client to speak to his attorney in private, and listened to everything my client said to his attorney. My client’s side of the conversation was also video and audio recorded and later sent to the prosecuting attorneys’ office for use in the criminal case against him.
Under Missouri law, when “a person when requested to submit to any test allowed … requests to speak to an attorney, the person shall be granted twenty minutes in which to attempt to contact an attorney. If upon the completion of the twenty-minute period the person continues to refuse to submit to any test, it shall be deemed a refusal.” Section 577.041.1, Revised Statutes of Missouri (2013). On appeal, we argued that the legislature could not have intended for law enforcement to be able to listen to or record a driver’s attorney-client conversation, let alone be able to use them as evidence in a criminal prosecution. The only logical interpretation of the statute is to give drivers 20 minutes to speak with their attorney in private.
The panel was heavily divided, with five judges voting for my client and four judges voting for law enforcement and the department of revenue. Fortunately the majority agreed with us, and reversed the one-year revocation of my client’s drivers license.
The case is Roesing v. Director of Revenue, 573 S.W.3d 634 (Mo. banc 2019). It was covered extensively in the below series of articles written by Jessica Shumaker of Missouri Lawyers Weekly.