Police must make "reasonable efforts" to notify a motorist about to be given a breath test if they are aware that an attorney has entered the case, a Brooklyn appeals court has ruled.

Taking up a matter of first impression involving the right to counsel under the state Constitution, a 3-1 panel of the Appellate Division, Second Department, held in People v. Washington, 2011-07259, "that when the police are aware that an attorney has appeared in a case where a motorist has consented to a chemical breath test, the police are obligated to exercise reasonable efforts to inform the motorist of counsel’s appearance if such notification will not substantially interfere with the timely administration of the test."

The ruling, written by Justice John Leventhal (See Profile), affirms Nassau County Supreme Court Justice George Peck’s (See Profile) suppression of Jonai Washington’s breath test results. While in custody, Washington consented to testing but her attorney called police about 10 minutes before the test was administered and, unbeknownst to Washington, unsuccessfully demanded a halt on all testing and questioning.

Peck suppressed the results, saying Washington had been denied access to her attorney, and the Second Department majority agreed yesterday.

"The defendant’s right to counsel was compromised inasmuch as the People were aware that the defendant’s counsel had called, but the People failed to adduce any evidence to show that it was not reasonable to notify the defendant that her attorney had appeared. Therefore, we hold that the People’s failure to so notify the defendant mandates the suppression of the chemical breath test results, since that test was commenced after defense counsel appeared in the case," Leventhal wrote. He was joined by Justices Thomas Dickerson (See Profile) and Robert Miller (See Profile).

But Justice Daniel Angiolillo (See Profile) dissented, saying suppression should have been denied.

"Notably, we generally do not give a defendant a second chance to reconsider a previous valid waiver, even when that waiver involves the most cherished constitutional rights. Under the rule announced today, a defendant is not only given the right to consult with an attorney after making a decision to submit to a chemical [blood alcohol content] test, the defendant is also given the right to reconsider and revoke a previous valid consent," he said.

The case was argued March 27, 2012.

When Nassau County police responded to an August 2010 motor vehicle accident, they found Washington standing beside her vehicle, on her cell and crying. An injured pedestrian lying 50 to 70 feet away later died from his injuries.

Washington appeared drunk, and officers arrested her after administering field sobriety tests.

Documents show that 50 minutes after her arrest, Washington agreed to a breath test at 3:30 a.m. The test was given at 3:39 a.m.

Attorney Anthony Mayol of Forest Hills called Nassau County Police headquarters at 3:31 a.m. During the call, he told police he represented Washington and said "you have to stop all questioning and we’re not consenting to any form of testing whatsoever."

Mayol stayed on the phone with police until 3:39 a.m. and was told someone would call him back. When Mayol did not get a call back, he called again about an hour later but was not permitted to speak with Washington.

During the suppression hearing, prosecutors said it would have been "impossible" in the eight-minute interval between Mayol’s call and the test to halt the procedure. But the officer who first spoke with Mayol did not testify. Prosecutors said he did not recall the specific facts.

Granting suppression in July 2011, Peck ruled prosecutors did not prove it would have been impossible to stop the testing given the notice to police that Washington was represented.

Limited Right to Counsel

Leventhal observed that motorists do not have the constitutional right to refuse a breath test and their statutory right to refuse such tests can be waived without counsel.

Still, motorists do have a "limited right to counsel" pursuant to a state Court of Appeals ruling, People v. Gursey, 22 NY2d 224. Under Gursey, Leventhal said, if the motorist makes a specific request to speak with an attorney before testing, police should allow the defendant to try contacting the attorney if the attempts do not cause undue delays in test administration.

But Gursey did not apply here, Leventhal said, because Washington admitted she did not ask to speak with an attorney.

Instead, Leventhal looked to another Court of Appeals ruling, People v. Garofolo, 46 NY2d 592, which allowed for the suppression of a defendant’s statements made after counsel entered a case, even when police made "good faith" but unsuccessful efforts to locate the defendant after the attorney called.

Here, Mayol entered the case when he first called at 3:31 a.m. and the "indelible right to counsel attached at that point," Leventhal said. The panel, he added, had to "examine the gap between Gursey and Garofolo" and balance state constitutional rights to counsel against "time-sensitive" needs to conduct breath tests—which are typically administered within two hours of an arrest, before alcohol dissipates.

Protecting the right to counsel required police to make a "reasonable effort" to offer notification of an attorney’s entrance, said Leventhal. "Once a motorist is so notified, that individual is free to, among other things, request to speak with counsel, refuse a test, or retract a consent to submit to a test. Where there is no evidence that the police made any efforts to notify a motorist that counsel has appeared in the matter, we must presume that a motorist would have requested to speak with counsel and would have withdrawn her consent to submit to a chemical breath test."

But Leventhal said the record was "barren" on police efforts to notify Washington of Mayol’s appearance.

In his dissent, Angiolillo argued that the majority’s rule challenged holdings from the Court of Appeals that uncounseled waivers offer no basis for suppressing test results.

"In my view, this goes too far in expanding the previously established limited right to counsel to assist the defendant in determining whether to exercise the qualified statutory right to refuse a chemical test," Angiolillo said.

Leventhal countered that there is "no reason why" a motorist could not retract consent prior to a test.

Leventhal said he was aware the ruling extended right to counsel principles but quoted case law saying "the highest degree of [judicial] vigilance" was needed to protect "the state right to counsel."

Assistant District Attorneys Tammy Smiley and Yael Levy appeared for the Nassau County District Attorney’s Office, which did not respond to a request for comment.

Washington, who has not been tried, was represented by Frederick Brewington and Valerie Cartright of the Law Offices of Frederick K. Brewington in Hempstead.

Brewington said the ruling is "important because it not only clarifies but appears from my view to underscore the right to counsel in situations where it oftentimes is taken lightly by law enforcement officials."

The inability of attorneys to reach clients immediately following their arrests is "a regular occurrence," said Brewington, adding "careful notes" are not always taken nor are recordings of the phone calls always available.