CopyCited 18 times | Published | Florida 3rd District Court of Appeal | 11 Fla. L. Weekly 2661
...At the conclusion of the tests, he was read his Miranda rights, at which point Hoch said, "I'd like a lawyer." This request was denied, and Hoch took the breath test. He moved to suppress the breath test results, contending that the test was taken in violation of section 901.24, Florida Statutes (1983), the due process clause of the fifth and fourteenth amendments, and the right to counsel provision of the sixth amendment....
...WHETHER A 6TH AMENDMENT RIGHT TO COUNSEL UNDER THE UNITED STATES CONSTITUTION ATTACHES SO AS TO REQUIRE ACCESS TO AN ATTORNEY PRIOR TO BEING REQUIRED TO SUBMIT TO THE IMPLIED CONSENT BLOOD/ALCOHOL TEST? II. WHETHER THE 5TH AMENDMENT PROCEDURAL DUE PROCESS REQUIREMENTS OF THE UNITED STATES CONSTITUTION AND/OR FLORIDA STATUTE 901.24 REQUIRE THE POLICE TO PERMIT A BRIEF RECESS PRIOR TO THE BREATH TEST TO AUTHORIZE AN ACCUSED AN OPPORTUNITY TO CONSULT AN ATTORNEY PRIOR TO SUBMITTAL TO THE BREATH TEST IF THE ACCUSED REQUESTS AN OPPORTUNITY TO CONSULT WITH COUNSEL? We agree t...
...Interaction of Implied Consent Law with the Right-to-Attorney Statute A person arrested shall be allowed to consult with any attorney entitled to practice in this state alone and in private at the place of custody, as often and for such periods of time as is reasonable. Section 901.24, Florida Statutes (1983). The impact of section 901.24 upon the implied consent statute appears to be a question of first impression in Florida....
...The second district held that suppression of the results of the breath test was not required, but its decision was based on the fact that results of such tests are not privileged under section
316.066, Florida Statutes (1981), the privileged accident report statute. No reference was made to section
901.24, although the statute was then in existence....
...2d DCA 1985), the defendant requested an attorney, but the blood sample was drawn before the attorney arrived. The second district held that the taking of a blood test did not require *603 that counsel be present. In reaching its decision, the court relied upon Schmerber. Once again, no reference was made to section 901.24, although the statute was in existence. Circuit and county courts which have considered the issue have reached mixed results as to whether a right to counsel under section 901.24 exists in DUI cases. The controversy surrounding the application of section 901.24 in these situations usually arises not upon an attempt by the driver to speak to his counsel, but rather upon an attempt by an attorney to speak to his client before the test....
...In State v. Blue,
9 Fla. Supp.2d 3 (Fla. Orange Cty.Ct. 1985), the accused who demanded to speak to an attorney had been detained in a Batmobile (a mobile van which contains the necessary equipment to test drivers for intoxication). The trial court applied section
901.24 and determined that there was no right to counsel before the breathalyzer test....
...1983) (the circuit court, acting in its appellate capacity, stated that the more prevalent and more reasonable view of the issue was that an accused is not entitled to consult with an attorney before taking the test, and the court was unpersuaded that section 901.24 requires that an accused be allowed to do so)....
...s taken into consideration the statutes already in existence). But see State v. Carlin,
15 Fla. Supp.2d 71 (Fla. 17th Cir.Ct. 1986), of which we expressly disapprove (court stated that it is possible to harmonize both the implied consent statute and section
901.24 and found a right to counsel existed); State v....
...submit to a breathalyzer test. State v. Vietor, 261 N.W.2d 828 (Iowa 1978); Gooch v. Spradling, 523 S.W.2d 861 (Mo. Ct. App. 1975). [7] We recognize that the authorities are in conflict. We conclude that those cases which hold that statutes such as section 901.24 do not apply in implied consent circumstances are better reasoned. Section 901.24 was enacted prior to our implied consent statute....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 1436
...der the influence is not entitled to an opportunity to consult a lawyer prior to submitting to a breathalizer test, and that neither Article I, Section 9 of the Florida Constitution, the Sixth or Fourteenth Amendment to the Federal Constitution, nor section 901.24, Florida Statutes mandates otherwise....
