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  • Writer's pictureDavid A. Cmelik Law PLC

Iowa High Court: DUI arrest attorney calls not confidential

The Iowa Supreme Court ruled last week that DUI suspect calls to attorneys made during the investigation are not confidential from the suspect's side of the conversation. Under Iowa law, suspects may make a "reasonable number" of calls to a loved one, family member, or attorney while secured in a locked facility like a jail or law enforcement center. This occurs during a DUI, or, OWI, investigation when an officer requests an evidentiary, desktop breath test. In an OWI context, if an officer denies a suspect this statutory right, the test result may be inadmissible. However, the call content is not typically confidential. When calling a lawyer, that may seem odd. It did to one defendant who argued calls to attorneys should be confidential. When police refused and the lawyer said he could not continue advice in a nonconfidential setting, the suspect made the decision without legal advice. He provided a test that was above the presumptive level of intoxication and moved to suppress the results of that test on the grounds that he was denied a private phone conversation with an attorney.

In State v. Sewell, the Iowa Supreme court examined whether Iowa law or Iowa’s Constitution guarantee to a drunk driving suspect—in Iowa, called Operating While Intoxicated, or, OWI—a private telephone consultation with an attorney before deciding whether to take a blood alcohol test. Justice Mansfield, writing for the high court, wrote that it does not because the Iowa state law that guarantees phone calls makes clear that “it shall be made in the presence of the person having custody of the one arrested or restrained.” Iowa Code § 804.20 (2019). The Court noted that an attorney can come to the jail and have a private, confidential conversation with a client.

In Sewell, someone called 911 to report a motorist passed out in a pickup in their driveway. Police arrived and knocked on the pickup window repeatedly. The occupant inside the pickup truck briefly woke up and “flipped off” the police.

Ultimately, police made contact with the suspect and subjected him to standardized field sobriety tests and a preliminary breath test. He allegedly refused the PBT and the opinion states that he did not perform sobriety tests well.

Law enforcement officers took him into custody and transported him to the jail for further testing. They read to the suspect an implied consent advisory that outlines the difficult choice between consenting to a Datamaster DMT breath test and refusal. Before he decided, the officers testified that they gave him an opportunity to use a telephone to consult with an attorney, family member, or loved one before deciding. He used a cell phone to retrieve phone numbers—but was required to use a landline which was recorded.

He called an attorney who asked the deputy to allow the suspect to use a cell phone instead of the recorded landline. The deputy refused. Moreover, the deputy did not leave the room. The attorney refused to proceed with further advice on the basis that it would not be confidential.

After the call, the suspect provided a breath specimen that allegedly tested positive for .206 g ETOH/210 L breath. Prosecutors charged the suspect with OWI. He moved to suppress, or, exclude,e the Datamaster DMT breath test from evidence on the basis that he was denied a confidential consultation with an attorney before making his decision.

At suppression hearing, the attorney testified that he was uncomfortable proceeding with advice because it wasn’t confidential. The district court denied the motion to suppress on the basis that state law does not require a confidential attorney consult to a DUI suspect. The suspect stipulated to a trial on the minutes, a way to have an abbreviated trial as a formality to avoid pleading guilty and to preserve his right to appeal. He then appealed the conviction and the denial of his motion to suppress.

On appeal, Justice Mansfield, writing for the Court, stated that the law providing to detainees the right to consult with an attorney confidentially was restricted to an in-person meeting. The high court held that the district court followed the law as it stands—there is no Iowa constitutional nor statutory right to use the phone confidentially to contact a lawyer during investigation but prior to the initial appearance. The ruling on the 804.20 statutory right concentrated on the language of the statute—as well as previous decisions which cemented the right to confidential meetings but not phone calls.

“Also, there are practical reasons why the legislature might be concerned about private phone calls but not private attorney jail visits,” wrote Justice Mansfield, including the very necessary requirement that law enforcement confirm the identities of call recipients.

“It is easy to imagine detainees taking advantage of private phone calls to inform confederates to get rid of evidence,” wrote the Court, though no such risk occurs in a DUI case. The Court added that, “when an attorney comes to the jail for a private consultation, law enforcement can verify the attorney’s identity and rely on the attorney’s ethical obligation that no shenanigans will occur.”

The court noted that, while the call was recorded, the issue of having the attorney’s end of the conversation surveilled was not before it. The usual practice, it noted, was to have the suspect’s words recorded. Those words can typically be used against him or her.

The Court recalled the Senn decisions in which a divided court held that the right to counsel did not “attach” that early in the investigation—prior to court proceedings. Justice Mansfield wrote that the Court found this reasoning persuasive.

Justice Appel concurred in part and dissented in part. It took the opportunity to state that stare decisis, or, judicial directive and philosophy of following past opinions, is usually invoked selectively—decisions the Court likes, wrote Justice Appel, are cited authoritatively while decisions it disfavors may be corrected.

In addition, Justice Appel stated that, if the statute were not written in the way that it is, he would give strong consideration to “driving the interpretation of Iowa Code 804.20 to avoid the constitutional problems” it presents. Justice Appel also took the opportunity to criticize the “imagined” scenario of attorney impersonation to hide or destroy evidence—not present in this case, caselaw cited by the Court’s opinion, nor legislative history of Iowa Code 804.20. Justice Appel cautioned that the right to counsel is central to the criminal justice system—especially with all the professional forces lining up against defendants.

Justice Appel quoted Justice Brennan of the United States Supreme Court in the Wade decision that the “plain wording” of the Sixth Amendment requires counsel “whenever necessary to assure a meaningful ‘defense.’ ”

Justice Appel lamented the erosion of the right to counsel in the Court’s decision, but offered a ray of hope that:

From Powell v. Alabama to Gideon v. Wainwright, to State v. Young, state authorities routinely raise “the sky is falling” practical problems in efforts to defeat providing accused with the right to counsel. But, fortunately, independent courts have repeatedly held that the right to counsel is available not only at the state’s convenience.

If you or a loved one is charged with DUI, or, as it is called in Iowa, Operating While Intoxicated, or, OWI, contact us for a free initial consultation.

NOTE: David A. Cmelik Law PLC had no role in the Sewell case


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