Michigan DUI - Right to an Attorney - Former Michigan Prosecutor

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When does someone have the right to an attorney in a Michigan DUI case?

In Michigan, the  courts afford virtually no right to counsel during the investigative and evidence-gathering stages of a criminal proceeding. These moments would take place on the side of the road, and back at the police station when giving a chemical test sample. As a general rule, the Sixth Amendment right to counsel attaches only when the accused has been formally charged at arraignment or indictment.

A notable exception arises in the case of custodial interrogations where the accused is afforded a right to counsel to protect his or her Fifth Amendment privilege against self-incrimination.  After the commencement of formal charges, the right to counsel is afforded at “critical” stages of the criminal proceedings. This means in the rare circumstance where the police stick you in an interrogation room as part of your DUI arrest, you'd have the right to an attorney.

In general, the right to counsel in a Michigan DUI case is very limited. No right to counsel exists during pre-arrest roadside questioning of a suspected drunk driver.   Similarly, there is no right to counsel during a routine booking procedure, even if it is recorded on video, or during physical sobriety tests following the booking.  More significantly, under Michigan state law, an arrested drunk driver has no right to counsel during a breath test examination.

Michigan courts do recognize, however, that for implied consent purposes an accused drunk driver should on request be allowed a reasonable opportunity to at least telephone an attorney before deciding whether to submit to a breath test. If the police deny this opportunity, and the defendant therefore refuses to submit to a breath test, his or her refusal will generally be viewed as reasonable and thus should not trigger a driver’s license suspension under the implied consent law.