Caselaw Update – Officers are required to give you time to contact an attorney

A recent Missouri Court of Appeals decision held that even though an officer is required to give you 20 minutes to contact an attorney if you request one, the officer has no obligation to provide you with your attorney’s information.

In Cortner vs. DOR, ED99145, the Director of Revenue (DOR) appealed the judgment from St. Louis County setting aside the revocation of Cortner’s driving privileges.  The parties agree that the facts are not in dispute. Cortner was arrested for driving while intoxicated. Cortner agreed to take a breathalyzer and was transported to the St. Louis County Justice Center. No qualified officer was available there so Cortner was then transported to the Brentwood Police Station.

Once at the Brentwood Police Station, Cortner requested to speak with his lawyer. He was provided with a telephone and a phone book. Cortner informed the officers that his attorney was not listed and he needed either his cell phone or his wallet which were both at the Police Station in Clayton. The officers did not go back to Clayton to retrieve Cortner’s wallet or cell phone. Cortner chose not to use the telephone to attempt to contact an attorney. After 20 minutes, he refused to take the breathalyzer.  The trial court found that the police effectively hindered Cortner’s ability to contact an attorney by moving him to another municipality without his phone or wallet. Therefore, the DOR was ordered to reinstate his driving privileges. This appeal follows.

The DOR, in his only point on appeal, argued that the trial court’s judgment was in error and that there was a mistake as a matter of law. Pursuant to Missouri law, a driver has no constitutional right to speak with counsel before deciding to take a breath test. However, Missouri’s implied consent statue permits a limited right to seek a lawyer’s advice. Specifically, the individual is to be given 20 minutes to attempt to contact an attorney. The Court relies on prior case law that there is not right to actually speak to an attorney nor does the statute provide that Cortner had the right to speak to a specific lawyer. The Court held that providing Cortner with a phone book and a phone gave him the reasonable opportunity to contact an attorney. Therefore, the Court remanded this case with the instruction to enter judgment affirming the DOR’s suspension of his driving privileges.


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